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The FCC Says Net Neutrality Lawsuits Are Moot Because It Already Repealed Net Neutrality

The agency is using an arcane strategy to try to shut down some of the efforts to restore net neutrality.

by Kaleigh Rogers
Aug 15 2018, 2:30pm

FCC Chair Ajit Pai. Image: Wikipedia

The Federal Communications Commission is making every effort to shut down lawsuits against its decision to repeal net neutrality, including employing some arcane and somewhat desperate legal strategies.

Put as simply as possible, the FCC wants to have a previous court decision on net neutrality rules scrapped from the legal record, which would eliminate a precedent for net neutrality proponents currently challenging the agency. The FCC’s reasoning for requesting the scrap, though, is that those net neutrality rules don’t exist anymore...because the FCC reversed them…which is why they’re being challenged in court in the first place.

“It’s kind of like they’re trying to sweep a broken vase under the rug and saying ‘what vase? What are you talking about?’” said Christopher Terry, a media law professor at the University of Minnesota, in a phone interview.

The long, complicated saga of net neutrality litigation goes back to when the agency first established the rules, through the Open Internet Order in 2015. This order cemented net neutrality protections federally by reclassifying ISPs as a telecommunications service that can be regulated like a public utility.

Major telecom companies were not psyched about these new rules, in part because they limited the ways companies could make money (for example, an ISP couldn’t get a kickback from a streaming service for providing faster connections to that service over, say, Netflix). Big Telecom’s first move was to take the FCC to court to challenge the new rules, which resulted in a 2016 ruling from the D.C. Court of Appeals that upheld net neutrality rules and said the FCC was well within its right to reclassify ISPs.

Big Telecom was not satisfied, so in September of last year lobbyists appealed to the Supreme Court, asking it to rule on net neutrality and whether the FCC had overstepped. Then, while we were waiting for the court to hear that case, the FCC went ahead and nuked net neutrality last December. In response, pro-net neutrality groups—including Mozilla, digital rights non profits, and 22 state attorneys general—launched a lawsuit against the FCC, claiming it can’t repeal net neutrality because its justification for doing so, that the original order was outside of the agency’s purview, had already been ruled against in that 2016 D.C. Court decision.

“However this works out is just the opening act.”

This brings us to today (excuse me while I gasp for air). We’re all now awaiting the Supreme Court case, which will more likely focus on whether or not ISPs have first amendment rights rather than whether the FCC has authority to reclassify industries. As part of the filings for that case, the FCC and the Department of Justice have asked the Supreme Court to vacate the 2016 ruling, claiming that since it’s about rules that don’t exist anymore, it’s now moot. This would weaken many of the arguments of those suing the FCC, which point to legal precedent.

“The current FCC doesn’t like the 2015 rules and would very much like to see them go away, but that’s complicated by the fact that the D.C. Circuit Court has said that those rules were valid and legitimate use of the FCC’s authority,” Terry explained. “That’s really inconvenient for the Pai FCC. It really is.”

The Trump administration has had success before with asking the Supreme Court to vacate earlier decisions it now considers moot. Last year, while litigation unfolded over President Donald Trump’s travel ban on visitors from predominantly-Muslim countries, the Supreme Court vacated a court ruling that Trump had exceeded his authority. It made this decision because, at that point, the administration had already scrapped and reworded the original ban.

Terry told me that while this tactic wasn’t likely to be successful, it was not a surprising move from an agency that’s ready to make every effort to prevent net neutrality from being restored. Yet even if this request is granted by the Supreme Court, it would only be the tip of the iceberg.

“This isn’t over,” Terry said. “However this works out is just the opening act.”

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