Supreme Court Won't Review 2015 Net Neutrality Order

with Chief Justice John Roberts and Justice Brett Kavanaugh not participating, said the order list Monday deciding Daniel Berninger et al. v. FCC, No. 17-498. It noted Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would grant the petitions, vacate the D.C. Circuit's judgment and remand to that court with instructions to dismiss the cases as moot under U.S. v. Munsingwear. The solicitor general, backed by ISPs, had urged justices to take that course, given the current FCC's order undoing Title II net neutrality regulation, which is being challenged in the D.C. Circuit (see 1810030036). ISP groups and some others Monday said they weren't surprised by cert denial. “Once the current FCC repealed the 2015 Order, almost all parties -- including NCTA -- agreed that the case was moot," said NCTA: "Today’s decision is not an indication of the Court’s views on the merits but simply reflects the fact that there was nothing left for the Court to rule on.” Net neutrality advocate Andrew Schwartzman emailed, "This was the likely outcome and doesn't change things much, if at all. However, had the court vacated the 2016 DC Circuit opinion, it would have precluded the petitioners in the current DC Circuit case from relying on the earlier decision as precedent." The current order "remains the law of the land and is essential to an open internet," said USTelecom President Jonathan Spalter. CEO Matt Polka said the American Cable Association will continue "to defend the [current] order in federal court and fight impermissible interference with the national regime by the states." Unless Congress legislates, "the ping-pong match over the FCC's authority will continue," said TechFreedom President Berin Szoka. The group noted three Republican appointees would have vacated the 2015 order; Kavanaugh dissented from the D.C. Circuit affirmation while on that court; and Roberts was recused, "apparently because of prior" cable stock holdings. “Although the current FCC repealed [the] net neutrality rules in 2017 in a fit of partisan overreach ... we will continue to fight until net neutrality is once again the law of the land," said Sen. Ed Markey, D-Mass. Commissioner Jessica Rosenworcel tweeted: " It wasn't enough for this @FCC to roll back #NetNeutrality. It actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet policies. But today the Supreme Court refused to do so." Free Press and Public Knowledge welcomed the decision (here and here).