Supremes Won't Hear Challenge to 2015 Open Internet Order

But don't vacate order; Kavanaugh does not participate
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No big surprise, but the Supreme Court has declined to hear the appeal of the FCC's 2015 Open Internet order.

ISPs had sued the FCC over the rules against blocking, throttling and paid prioritization, adopted under former FCC chair Tom Wheeler over the objection of the Republican members of the commission, but the Supreme Court had held off making a decision on whether to grant cert--hear the appeal--until the current FCC decided what to do about the rules.

The FCC Republican majority under chairman Ajit Pai repealed the 2015 rules under a new Restoring Internet Freedom order, which itself has been challenged in court.

The Supreme court decision was 4-3. Voting not to hear the appeal were Justices Kagan, Ginsburg, Breyer and Sotomayor. Justices Alito, Gorsuch and Thomas would have granted the petitions, but only to vacate the judgment, remand it back to the D.C. appeals court with instructions to dismiss it as moot. Chief Justice Roberts and Justice Kavanaugh, the latter which weighed in on the case as a member of the D.C. appeals court, recused themselves.

“This decision is not surprising because the D.C. Circuit’s original decision was superseded by the FCC’s Restoring Internet Freedom Order (RIF) that correctly restored broadband as an information service," said Jonathan Spalter, president of USTelecom. "RIF remains the law of the land and is essential to an open internet that protects consumers and advances innovation. USTelecom will continue to support that order from challenges in Washington, D.C. and state capitals.”

NCTA, the American Cable Association and others had also filed suit against the old rules, but weren't pursuing the appeal given that the Pai reversal essentially mooted it.

Denying the appeal, but also denying to vacate the old order is a victory of sorts for the groups challenging the deregulatory RIF.

If the 2015 order had been vacated it would have meant that that those challenging the Restoring Internet Freedom order would not have been able to use the previous D.C. court decision upholding that order as precedent.

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