Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality

from the pulling-it-up-from-the-roots dept

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.

The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.

But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

"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. But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."

Of course we've noted time and time again how the repeal of net neutrality was a facts-optional shitshow of comical proportions. Given the FCC's entire justification for repeal was based on bogus ISP lobbyist math and bullshit, the FCC leaning on the facts here is pretty funny. Even if the courts don't agree with that, FCC lawyers state, the Supreme Court should just go ahead and agree with ISPs anyway:

"Alternatively, if 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 below, 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.

Wouldn't that be Comcastic!

So what is the Trump FCC and DOJ (read: AT&T, Verizon, Comcast and Charter) up to here? Because the FCC engaged in so much bizarre and shady behavior during the net neutrality repeal last fall (from making up a DDOS attack to turning a blind eye to identity theft and fraud in the public comment period), ISPs are well aware the FCC repeal could fall apart in court.

That could happen for a number of reasons, including the court finding the FCC violated the Administrative Procedure Act by dismantling a major regulatory effort based on little more than hot air and string cheese. The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.

In short, giant ISPs like Comcast and AT&T know they'll soon have to relitigate this in court. That's why they're pushing for a new fake net neutrality laws they've written with an eye on passing something that pre-empts both the restoration of the federal rules, or the myriad of state solutions that are now popping up. And they know that should they lose, this could very likely head to the Supreme Court. A Supreme Court that could soon be staffed by Brett Kavanaugh, who bizarrely bought the completely bogus ISP claim (during the first round of the FCC's fight with Verizon) that net neutrality rules violate an ISPs First Amendment rights.

The short version? ISPs are worried that Ajit Pai's ham-fisted and facts-optional attack on net neutrality won't survive the looming court challenge by consumer groups and Mozilla. As such, they're gearing up for what they hope will be a Kavanaugh-staffed Supreme Court to help deliver the killing blow, something that would be greatly aided by neutering existing precedent. ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?

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Filed Under: ajit pai, brett kavanaugh, broadband, doj, fcc, net neutrality, supreme court, tom wheeler, trump administration