No, the Supreme Court did not end the net neutrality debate

supreme court net neutrality
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ITEM: On Monday, the US Supreme Court of the United States (SCOTUS) declined to hear a case brought by telecoms companies to reverse earlier rulings by lower courts that the 2015 Obama-era net neutrality rules were legally sound.

As long as those rulings remain on the books, future FCC commissioners could legally reinstate those rules without facing a legal challenge, since their legality has already been decided. The telcos and ISPs who oppose net neutrality wanted SCOTUS to invalidate those rulings so that if the FCC ever brings neutrality back, they’ll have the ability to challenge the rules in court again.

That didn’t happen. Because SCOTUS passed on the case, the lower rulings still stand.

For those of you unfamiliar with how the Supreme Court works, the justices have the legal ability to pick and choose which cases they will agree to review. According to FindLaw, SCOTUS receives around 10,000 petitions for review per year – it will typically hear about 80 of them. Four out of the nine justices must agree to take on a given case. Moreover, SCOTUS isn’t required to give a reason for the ones it declines – occasionally it does, but often it doesn’t, and didn’t give one regarding the net neutrality petition.

As for why they didn’t, one can only guess, but SCOTUSblog suggests it may have been because two of the five conservative justices who have indicated they would rule in favor of the telcos recused themselves from the case (new guy Brett Kavanaugh participated in the original DC Circuit Court case, while Chief Justice John Roberts reportedly owns some telecoms stocks). The remaining three conservative justices may have decided they didn’t have the votes to grant the telcos victory and figured it was better to decline the case than risk a loss that would cement the legal precedent set by the lower courts.

Whatever the reason, the decision to decline means that the FCC can still set net neutrality rules under current law.

Which is why I find it amusing that some headlines have stated that the SCOTUS decision “ends” the fight over net neutrality.

It doesn’t.

The FCC is currently on the side of the telcos on the issue, but if future commissioners decide to bring neutrality back, telcos will have an uphill battle challenging it on legal grounds when two levels of federal courts have already ruled against them. That will only change if Congress passes new laws that define what the FCC can and can’t do, and/or modernizes communications laws for the 21st century so the FCC doesn’t have to shoehorn ISPs under the ill-fitting Title II classification.

Meanwhile, the legal battle is still raging on another front, with over 20 state governments currently suing the FCC over its decision to scrap the 2015 rules. Meanwhile, as mentioned in this space before, six governors have signed executive orders upholding net neutrality, 30 state legislatures have officially introduced over 72 bills requiring ISPs to ensure various neutrality principles, and four states have already passed net neutrality legislation – including California, which is now being sued by telcos, ISPs and the Trump administration.

The SCOTUS ruling may have been a setback for telcos in the long run. But it hasn’t ended the legal battle over net neutrality. That battle is just beginning.

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