A federal appeals court voted on Monday not to reconsider a court ruling upholding the legality of President Obama’s network neutrality rules. Monday’s decision represented the second-to-last hurdle those rules needed to clear. Now the opponents of the regulations need to decide whether to appeal the ruling to the Supreme Court.
But the Supreme Court will have a good reason to delay: The new Republican chair of the Federal Communications Commission has announced plans to dismantle the rules. By the time the Supreme Court rules on the FCC’s old rules in late 2017 or early 2018, it’s likely the issue will be moot.
The Obama-era rules were crafted in 2015 by FCC Chair Tom Wheeler. They provided robust protections for network neutrality — the idea that all content and services online should compete on a level playing field. The rules prevented ISPs like Comcast, Verizon, and AT&T from blocking online content and services, throttling online streaming, or otherwise playing favorites online. The rules were hailed by liberal activists, who viewed it as a victory for a free and open internet.
But Republican critics charged that the FCC had overstepped its authority. They argued that the regulator was imposing burdensome rules on ISPs that could stifle online innovation. They also argued that the FCC was misreading telecommunications law, forcing ISPs to abide by rules that were crafted in the 1930s to regulate old-school telephone monopolies.
By a 2-1 vote, a panel of the DC Circuit appeals court rejected these arguments last year. The court’s majority examined a long list of arguments against the regulations and found each and every one of them to be without merit.
But under the US federal court system, this kind of three-judge ruling can be appealed to a larger panel of all the court’s judges, a procedure known as en banc review. Opponents of Obama’s rules requested an en banc hearing after last year’s ruling. It took almost a year, but the court decided not to grant en banc review this week, which means that last year’s three-judge ruling stands.
Now critics of Obama’s rules have one last chance to defeat them: by appealing to the Supreme Court. But I’ll be surprised if the Supreme Court agrees to take the case given the FCC’s new Republican majority. The new leadership at the FCC is likely to roll back the most controversial aspects of the FCC rules, and courts don’t like to rule on controversial issues if they can avoid it.