Net Neutrality in the Courts: Two Cases, Two Courts; The One You Have Been Following, And The One You May Have Forgotten About

Andrew Jay Schwartzman

After months of relative inactivity, there will soon be some important movement in litigation over the Federal Communications Commission’s network neutrality rules. The fact that there are two different cases in two different courts litigating over two different decisions is likely to cause considerable confusion in the coming weeks.

On Monday, August 20, challengers will be filing their initial briefs in their appeal of the Trump Administration FCC’s oxymoronic “Restoring Internet Freedom” order. The case is pending in the United States Court of Appeals for the DC Circuit. The FCC’s order, adopted in December 2017, reclassifies broadband Internet access service as an “information service” under Title I of the Communications Act and repeals network neutrality rules that were adopted by the Obama Administration’s FCC in 2015 and upheld by the same court in 2016. On August 27, a number of tech industry groups that intervened in support of the appeal will file their brief, as will a dozen or so groups that will file briefs as friends of the court. The FCC and the Department of Justice will file their opposition brief on October 11, followed by an opposition brief supporting the FCC order from Internet service providers on October 18. The challengers will file a reply brief on November 16.

Once the briefing is concluded, the case will be ready to be scheduled for oral argument, which will probably be held early in 2019. (The makeup of the three-judge panel -- critical to assessing the likely outcome of the case -- will not be announced until shortly before the argument.)

Since the 2017 order now before the DC Circuit overturned the network neutrality regime adopted by the Obama-era FCC, one might think that litigation over the previous action was over. One would be wrong. This is where things become unusual: even as the briefs about the current FCC rules are being filed in the appeals court, the Supreme Court of the United States is considering what to do about the DC Circuit’s earlier decision upholding the 2015 rules. Last year, Internet service providers asked the Supreme Court to reverse the DC Circuit. Realizing that the net neutrality repeal was in the offing, the FCC and Justice Department (which are charged with defending a decision that the government had won) asked for, and received, repeated one-month extensions of the deadline to respond while the FCC repeal proceeding was underway. 

This summer, the net neutrality repeal became effective; and on August 2, the government finally filed its response. Notably, the government said nothing about the merits of the FCC’s 2015 rules or the DC Circuit decision upholding them. Instead, the government response argued that, in light of the subsequent repeal of the network neutrality rules, “questions concerning the procedural and substantive validity of the 2015 Order lack continuing practical significance.” Relying on a line of authority familiar only to Supreme Court nerds, the government asked the court to “vacate” the DC Circuit opinion. Under what is called the “Munsingwear doctrine,” the Supreme Court can “vacate” (i.e., wipe off the books) a decision if it has become moot (i.e., inoperative), as a result of the actions of the party that won the case on appeal. The idea here is that one who wins a case and then does something that precludes Supreme Court review should not be able to benefit from the precedent that was set in the lower court. 

Vacatur (as lawyers would put it) of the 2016 DC Circuit opinion would thus have an impact on the new case challenging repeal of the net neutrality rules because the petitioners in that case would be unable to use that opinion as precedent. 

The Supreme Court has given the tech companies and public interest groups that support the 2015 net neutrality rules until September 14 to respond to the government’s Munsingwear argument. There are a number of reasons they can offer to show why the case should not be vacated. Most importantly, to come under the Munsingwear doctrine, a case must be one which the Supreme Court would otherwise have agreed to consider on the merits. Moreover, there is no split among the federal circuit courts on the issues addressed in the case; this is the most common reason the Supreme Court agrees to grant certiorari. Instead, they will argue, the case involved a very important matter -- net neutrality -- but the legal issues involved relate to the kind of statutory construction issues that frequently arise in FCC appeals and the case is, in that sense, a garden-variety appeal.

There is one other interesting political component at play in the Supreme Court. The Court is likely to consider the petitions in its so-called “long conference” in late September when the Court considers all the cases that were filed over the course of the summer recess. Even if Judge Brett Kavanaugh is confirmed by then, he would be recused from the case, since he participated in deliberations on the case during his tenure on the DC Circuit. Thus, there will be eight Justices voting on the matter. While only four votes are needed for the court to agree to hear a case, it is very unlikely to do so, since (as noted above) the case is not “certworthy” to begin with, and the Court tries to avoid hearing cases where there is even a possibility of a four- to-four-tie vote. But granting the request to vacate the DC Circuit opinion would require a majority -- five votes. Getting at least five votes in an eight-Justice court is a tall order.

The federal courts are not the only forum for disputation over whether and how to keep the internet open and non-discriminatory.  The Senate has passed a resolution to rescind the 2017 rules and a companion measure in the House has become a campaign issue that may draw enough Republican support to pass, and some members of Congress want to adopt affirmative legislation to impose network neutrality requirements. Several states have adopted legislation or executive orders to require local ISPs to comply with network neutrality requirements. Depending on the outcome of the two pending court cases, ISPs will sue to block these measures. Thus, this is a debate that may persist for some time to come.

Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR). Since February 2014, Schwartzman has been writing a monthly column for the Benton Foundation’s Digital Beat blog on telecommunications and media policy issues. Drawing on his decades of experience in the field, Schwartzman provides analysis of the legal issues in the key communications debates of the day, highlighting how law and policymaking interact. Find all of Schwartzman's articles here.

By Andrew Jay Schwartzman.