Trump Administration Tells Supreme Court to Wipe Out Decision Upholding Net Neutrality

Justice Department lawyers argue that the repeal of net neutrality rules renders the old dispute moot.
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The Federal Communications Commission repealed net neutrality rules earlier this year, but the Trump administration wants to go even further. On Thursday, the solicitor general requested that the Supreme Court vacate a 2016 ruling from the D.C. Circuit Court of Appeals that holds that the net neutrality rules enacted during the Obama years permissibly reclassified broadband as a telecommunications service subject to regulation under Title II of the Communications Act.

Upon Trump's inauguration and the appointment of Ajit Pai to lead the FCC, the rules preventing telecom giants from engaging in content discrimination through practices like blocking and throttling was swiftly repealed. So quickly, in fact, that the Supreme Court hadn't gotten a chance yet to weigh in on a petition from AT&T and others to review the legality of reclassification.

So what to do about the pending petition before the Supreme Court on net neutrality as the repeal of net neutrality itself is now the subject of its own appeal?

According to the Trump administration, the case is moot. Instead of just telling the high court to deny a cert petition and not review the case, the White House asserts that the mootness warrants a petition for review be granted along with a wiping out of the 2016 appellate ruling. 

Justice Department lawyers say that while it is conceivable that someone could sue for a pre-2018 violation of the net neutrality rules, that isn't very likely to happen. Perhaps expressing some confidence about Republican electoral prospects, a brief to the Supreme Court also says there's no realistic prospect that the FCC will reinstate the regulatory approach reflected in the agency's 2015 decision to enact net neutrality rules.

A vacatur is thus argued as appropriate to "clear the path for future relitigation of the relevant issues."

But the Trump administration is so bothered by the 2016 ruling upholding net neutrality that it tells the Supreme Court, "[I]f 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 petitions for writs of certiorari, vacate the judgment, 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."

In other words, take the case and get rid of the 2016 ruling — either because it's no longer relevant to the discussion or because it is relevant.

"The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order," states the brief. "But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."