As The “Net Neutrality” World Turns . . . .

Earlier this week, the United States Supreme Court denied requests by the Trump Administration and telecommunications industry players to vacate a prior decision by the D.C. Circuit Court of Appeals upholding the Federal Communications Commission’s (“FCC’s”) 2015 Open Internet Order, which adopted a suite of Net Neutrality regulations. As a result, the D.C. Circuit’s earlier decision remains standing while challenges to the FCC’s 2018 Restoring Internet Freedom Order, which repealed the earlier Net Neutrality regulations, proceed before the D.C. Circuit.

The FCC’s 2015 Open Internet Order reclassified broadband Internet access service from an information service to a telecommunications service subject to Title II common carrier regulation. The 2015 Order modified existing transparency requirements applicable to Internet Service Providers’ (“ISPs’”) consumer disclosures and imposed “bright line rules” prohibiting ISPs from throttling, blocking, or prioritizing internet traffic. The 2015 Order further adopted an amorphous “General Conduct Rule” to prevent ISPs from unreasonably interfering with or disadvantaging the ability of consumers to access and use lawful internet content and edge providers to make content available to end users.

Several ISPs and industry associations challenged the FCC’s 2015 Order on statutory, procedural, and constitutional grounds. But the D.C. Circuit upheld the 2015 Order, holding, among other things, the FCC had statutory authority to reclassify broadband Internet access service as a Title II telecommunications service. Following denial of petitions for rehearing and rehearing en banc, petitioners filed petitions for a writ of certiorari with the Supreme Court on September 28, 2017.

Before the Court acted on the petitions, however, the FCC issued its 2018 Restoring Internet Freedom Order. With the 2018 Order, the FCC reversed course and abandoned the classifications and regulations adopted in its earlier 2015 Order. In doing so, the FCC reinstated its longstanding classification of broadband internet access service as an information service subject to a “light touch” regulatory approach.

In light of the 2018 Order, the Trump Administration argued the D.C. Circuit’s earlier decision upholding the 2015 Order was moot and should be vacated pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950), which held a lower court’s decision should typically be vacated when intervening mootness prevents appellate review of the decision. Vacating the D.C. Circuit’s decision would have wiped it from the books.

But a divided Court declined to hear the case. Justices Thomas, Alito, and Gorsuch indicated they would have granted the petitions, vacated the judgment, and remanded with instructions to dismiss the case as moot under Munsingwear. The Chief Justice and Justice Kavanaugh recused themselves.

As a result, the D.C. Circuit’s prior decision remains on the books and good law. How it impacts the current challenge to the 2018 Order remains uncertain but advocates on both sides of agency challenges will continue to need to take its holdings into account going forward.