It has been nearly eight months since the Federal Communications Commission repealed the net neutrality that keep the internet open and free for everyone, and the repeal officially went into effect on June 11. As lawmakers in individual states do their part to try and ensure net neutrality is still a reality for their constituents, the Trump administration is doing its part to get the U.S. Supreme Court to uphold the FCC’s repeal by any means necessary.
In 2015, the Obama-era FCC voted in favor of net neutrality, banning internet fast lanes, and the regulation of internet service providers under Title II common carrier rules. Internet providers were understandably upset, because that decision affected their ability to milk even more money out of consumers. They filed a lawsuit to overturn the FCC decision, but a federal appeals court rejected their claim and upheld the FCC’s decision.
Although the Republican-controlled FCC repealed the net neutrality rules put in place by the prior administration, ISPs still sought to have the U.S. Supreme Court end Title II regulation once and for all. In Sept. 2017, lobby groups filed a petition to the court asking it to review the federal appeals court decision.
That petition has now been bolstered by a brief (pdf) filed with the Supreme Court Friday by lawyers for the FCC and the U.S. Department of Justice. Although the team of lawyers acknowledges that Pai’s repeal of the rules of net neutrality makes their case basically moot, they want the court to prevent that ruling from setting precedent in the current litigation over the repeal.
To put it plainly, the FCC repeal overturns all those 2015 rules and basically makes the 2016 case moot, but because so many states and lobby groups have filed a lawsuit to overturn the FCC’s most recent repeal, the lawyers for the FCC and DOJ want to make sure the 2016 ruling cannot come back and bite them in the ass so to speak.
They wrote in their brief:
In light of [the FCC’s repeal of its own net neutrality rules], questions concerning the procedural and substantive validity of the 2015 Order lack continuing practical significance.
Instead, the legal questions concerning the proper regulatory treatment of broadband services will be resolved in the pending challenges to the 2018 Order. The Court therefore should grant the [broadband industry’s] petitions, vacate the judgment below, and remand to the court of appeals with instructions to dismiss the petitions for review as moot. Alternatively, the Court could grant the petitions, vacate the judgment below, and remand to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.
Alternatively, if this Court concludes that the 2018 Order did not render this case moot, or if it prefers not to resolve that issue, it should grant the [broadband industry’s] petitions for writs of certiorari, vacate the judgment below, and remand for further proceedings to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.
The tl;dr version of this: two government agencies that should be acting in the best interest of the American people seem to be doing the bidding of corporate interests, and that is never a good thing.
And here is a little tidbit that is very interesting: Ars Technica notes that Brett Kavanaugh, Donald Trump’s newest Supreme Court nominee, was the only judge to vote against the FCC in that 2016 ruling. He argued that the rules of net neutrality prevent internet service providers from “exercising editorial control” over internet content, thereby violating the First Amendment rights of internet service providers.
We have to recognize that net neutrality is a human rights issue at this point. Everyone deserves equal access to information and communication. This should not be a class issue.