The Supreme Court declined to review the prior FCC's 2015 net neutrality order, which was upheld by the U.S. Court of Appeals for the D.C. Circuit. Justices 4-3 denied cert petitions appealing affirmation of the Communications Act Title II 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 “Once the current FCC repealed the 2015 Order, almost all parties -- including NCTA -- agreed that the case was moot," said NCTA: "Today’s decision is not an indication of the Court’s views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 “Although the current FCC repealed [the] net neutrality rules in 2017 in a fit of partisan overreach ...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).

The FCC hasn’t arrived at a number for a new national TV ownership cap and is considered unlikely to address the matter in 2018. Lack of industry consensus on a single proposal for a new national cap, the absence of outside pressure to act, uncertainty about Tuesday's elections, and the FCC schedule for the rest of the year may be factors in the lack of action, industry watchers told us. The limit isn't on the November FCC meeting agenda.

The FCC said restoration of "light-touch" broadband regulation reflects the best read of the Communications Act and its goal of an internet "unfettered" by federal and state regulation. The "internet freedom" order is backed by the agency's "legal analysis, public policy concerns, and the extensive record," said the FCC/DOJ brief Thursday, responding to challenges (see 1808210010) in the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC, No. 18-1051. Though the decision reversed a 2015 Title II net neutrality order, the FCC "had ample discretion, following a 'change in administrations' to reevaluate its policies," it said, citing the 2005 Supreme Court Brand X deferring to the commission classification of cable broadband as a Title I information service.

The FCC said restoration of "light-touch" broadband regulation reflects the best read of the Communications Act and its goal of an internet "unfettered" by federal and state regulation. The "internet freedom" order is backed by the agency's "legal analysis, public policy concerns, and the extensive record," said the FCC/DOJ brief Thursday, responding to challenges (see 1808210010) in the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC, No. 18-1051. Though the decision reversed a 2015 Title II net neutrality order, the FCC "had ample discretion, following a 'change in administrations' to reevaluate its policies," it said, citing the 2005 Supreme Court Brand X deferring to the commission classification of cable broadband as a Title I information service.

A court set a Nov. 14 hearing on DOJ's motion for a preliminary injunction against California's net neutrality law (see 1809210059). California's opposition brief is due Oct. 19, and DOJ's reply Nov. 2, said a brief order in the U.S. District Court of Eastern California, in USA v. California, 2:18-cv-02660 (in Pacer). Judge John Mendez is to hear the case. The court set a March 18 scheduling conference before Senior Judge William Shubb in an ISP challenge to the law (see 1810030036) in American Cable Association v. Xavier Becerra, 2:18-cv-02684 (in Pacer). Net neutrality advocate Andrew Schwartzman expects the cases to be consolidated and says it could be held in abeyance, pending the outcome of challenges in the U.S. Court of Appeals for the D.C. Circuit to the FCC's net neutrality rollback order and its pre-emption provisions.

A court set a Nov. 14 hearing on DOJ's motion for a preliminary injunction against California's net neutrality law (see 1809210059). California's opposition brief is due Oct. 19, and DOJ's reply Nov. 2, said a brief order in the U.S. District Court of Eastern California, in USA v. California, 2:18-cv-02660 (in Pacer). Judge John Mendez is to hear the case. The court set a March 18 scheduling conference before Senior Judge William Shubb in an ISP challenge to the law (see 1810030036) in American Cable Association v. Xavier Becerra, 2:18-cv-02684 (in Pacer). Net neutrality advocate Andrew Schwartzman expects the cases to be consolidated and says it could be held in abeyance, pending the outcome of challenges in the U.S. Court of Appeals for the D.C. Circuit to the FCC's net neutrality rollback order and its pre-emption provisions.

ISP groups challenged California's net neutrality law Wednesday in the same U.S. district court where DOJ filed suit Sunday (see 1809210059). Separately, they backed the U.S. solicitor general's request to the Supreme Court to vacate the 2017 ruling of the U.S. Court of Appeals for the D.C. Circuit affirming the FCC's 2015 net neutrality order (see 1808030041). That case was scheduled for justices' Oct. 26 conference (in Daniel Berninger v. FCC, No. 17-498).

ISP groups challenged California's net neutrality law Wednesday in the same U.S. district court where DOJ filed suit Sunday (see 1809210059). Separately, they backed the U.S. solicitor general's request to the Supreme Court to vacate the 2017 ruling of the U.S. Court of Appeals for the D.C. Circuit affirming the FCC's 2015 net neutrality order (see 1808030041). That case was scheduled for justices' Oct. 26 conference (in Daniel Berninger v. FCC, No. 17-498).

DOJ likely will convince the courts to throw out California's new net neutrality law, analysts told us Monday. Attorney General Jeff Sessions and other supporters of the FCC's recent broadband regulation rollback voiced confidence in DOJ's lawsuit, filed in federal court as SB-822 was signed by California Gov. Jerry Brown (D) Sunday. FCC Chairman Ajit Pai, Commissioner Mike O'Rielly and their supporters welcomed the suit, while Commissioner Jessica Rosenworcel and net neutrality advocates criticized it, and industry rivals called for congressional legislation.

DOJ likely will convince the courts to throw out California's new net neutrality law, analysts told us Monday. Attorney General Jeff Sessions and other supporters of the FCC's recent broadband regulation rollback voiced confidence in DOJ's lawsuit, filed in federal court as SB-822 was signed by California Gov. Jerry Brown (D) Sunday. FCC Chairman Ajit Pai, Commissioner Mike O'Rielly and their supporters welcomed the suit, while Commissioner Jessica Rosenworcel and net neutrality advocates criticized it, and industry rivals called for congressional legislation.