Legal Issues

by Karl Bode


Filed Under:
fcc, net neutrality, supreme court



Supreme Court Rejects Telecom Industry Calls To Hear Net Neutrality Case... For Now

from the round-and-round-we-go dept

Before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they 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.

But, last August, lawyers for the FCC and Department of Justice (at direct telecom industry behest) filed a brief (pdf) with the Supreme Court, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move was necessary, FCC lawyers claimed, because the FCC's comically-named "Restoring Internet Freedom" proposal had somehow "repudiated those factual and legal judgments." If you watched as the FCC repealed net neutrality using little more than lobbyist fluff and nonsense, it should be fairly obvious to you that wasn't true.

So what was the telecom industry and its BFFs in the Trump administration trying to do? They know their repeal of net neutrality was so filled with procedural missteps and outright fraud that they're worried it will be overturned by next year's net neutrality lawsuits, opening arguments for which begin in February. As such, they were hoping to undermine the established legal precedent supporting the 2015 rules in a bid to ensure they couldn't and wouldn't be restored.

That gambit hasn't worked. The Supreme Court this week stated it wouldn't be hearing the case (pdf). While the announcement states that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have taken up the case, the Washington Post notes that John Roberts and newly-appointed Justice Brett Kavanaugh were required to recuse themselves because of conflicts of interest, leaving the telecom industry without enough court backing to move forward:

Three of the Court’s justices — Clarence Thomas, Samuel Alito and Neil M. Gorsuch — would have voted to take up the case, according to the Court’s announcement, and overturn a lower court’s decision backing the Federal Communications Commission’s net neutrality rules, which were originally passed in 2015. But there were not enough justices for a majority, after Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh recused themselves. (Roberts' financial disclosures show that he owns stock in Time Warner, which is now owned by AT&T under the name WarnerMedia, while Kavanaugh took part in the case as a judge in the lower court.)

As we've noted in the past, Kavanaugh was more than eager to support the telecom industry argument that net neutrality violated their First Amendment rights, despite the fact that's obviously not true. While Verizon, Comcast, and AT&T lawyers claimed that blocking content and services amounts to an "editorial decision," in reality, ISPs aren't editors; they're simply connecting people to services. Still, "net neutrality violated ISPs' First Amendment rights" was an argument ISP lawyers basically threw at a wall to see if it would stick, and Kavanaugh was more than happy to agree.

Of course while the Supreme Court has refused to hear this case, they could be hearing future cases depending on how next year's net neutrality lawsuits (filed by 23 State AGs and Mozilla) go. ISP lawyers have routinely claimed at this point that any state or federal attempt to hold them accountable for poor service or fraud is a violation of their First Amendment rights, and Kavanaugh's sure to play an un-recused, starring role in many of these cases, one way or another.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    CrushU (profile), 5 Nov 2018 @ 12:57pm

    Dodged?

    I feel like we just dodged a bullet there... That if Kavanaugh hadn't been required to recuse himself, we would've ended up with a terrible ruling on this case...

    reply to this | link to this | view in chronology ]

  • icon
    ShadowNinja (profile), 5 Nov 2018 @ 1:08pm

    ... Wait, if Roberts owns stock in there, and Kavanaugh can't rule on something he ruled on at a lower court level... will the SCOTUS be short 1 or 2 justices whenever this is heard then?

    Roberts can sell the stock, but Kavanaugh can't unhear something he already heard?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 1:15pm

      Re:

      Kavanaugh can't rule on the same case that he ruled on at a lower court level. A very similar case (just filed separately) would present no problems.

      In fact, since the Supreme court declined to hear this case, the case is now over and no longer presents any conflicts for Kavanaugh.

      In other words, he can rule that murder is illegal as many times as he wants, he just can't rule that the specific murder of John Smith is illegal more than once.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 5 Nov 2018 @ 1:22pm

      Re:

      In kavenaugh's case, It would be a different case, not on the legality of the Title II classification, but the legality of the reclassification of Title I. The issue in this case is that he directly ruled on the previous case, and no matter if he was in the majority or minority, he might have a desire to rule not based on the arguments presented, but entirely on his views from the original ruling. (majority - try to force his view, even as they challenge the legal basis for that ruling, minority - try to use this to overturn the legal basis for the ruling.) Basically, its a clear in-built bias, he has a stake in the game, not on the subject matter but on the outcome of the case itself.

      However, once you move away from the case he heard, his personal opinions are not considered a conflict of interest. While the unique nature of this case means he is effectively re-hearing that original case, and the ethics are iffy, we are looking at a Jurist who stated he intends to rule against every democrat who comes to the supreme court and be partisan in favor of republicans during his confirmation hearing, so iffy Jurist ethics are the norm right now, so he is unlikely to recuse himself.

      So if Roberts sells that stock, we could potentially have a full court.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Nov 2018 @ 8:04pm

        Re: Re:

        Those conflict of interest rules only apply to lower courts, at least in the federal judiciary, and not the Supreme Court. While justices on the SCOTUS generally avoid participating in matters where such conflicts arise, in fact they are under no legal obligation to do so.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Nov 2018 @ 6:43am

          Re: Re: Re:

          Apparently there are many in politics who think they are under no obligation(s) to do anything at all and due to gerrymandering they are not subjected to the ramifications of their actions or lack thereof. These people do not represent their constituents.

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 7 Nov 2018 @ 5:55am

          'It would be nice if you avoided conflict of interest, but eh..'

          Those conflict of interest rules only apply to lower courts, at least in the federal judiciary, and not the Supreme Court. While justices on the SCOTUS generally avoid participating in matters where such conflicts arise, in fact they are under no legal obligation to do so.

          Which is completely and utterly insane. Conflict of interest is of serious concern for lower courts, but not in the highest court in the US legal system? If anything the bar for recusal when it comes to the US Supreme Court should be lower, not non-existent.

          reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 5 Nov 2018 @ 2:24pm

    but.

    There is also the right of Law, and what Law is..
    It is the Summation of all the people deciding to live by certain laws and codes..
    ANd if we wish to silance 1 person por group...WE can ASK the gov not to listen...AND THEY WILL HAVE TO..

    BUT, for some reason..that also has been adulterated..

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 5 Nov 2018 @ 2:30pm

    Corporations have no First Amendment rights. Only the individuals who work at them do. Obvious to anyone who supports the Constitution.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 3:04pm

      Re:

      Where have you been hiding the last decade or two?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 3:18pm

      Re:

      Agreed, however ... one of the worst supreme court rulings ever was accomplished with much fanfare recently that I am amazed you are unaware of it. Perhaps your comment was tongue in cheek.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 5 Nov 2018 @ 3:44pm

      Re:

      Well no, the Owners, the ones who plausibly speak definitively for the company also have first amendment rights. And all corporate speech is, is the owners speaking as a group, using their first amendment rights. Its why the owner of a newspaper is at issue when they discuss certain topics, the owner could try to exercise editorial control - it is their paper and their speech after all, not the journalists.

      The issue with citizens united is not 'corporate personhood' or 'corporate speech', it is the way the ruling bypasses the ability of the individual to understand conflicts of interest.

      reply to this | link to this | view in chronology ]

      • identicon
        Lawrence D’Oliveiro, 5 Nov 2018 @ 4:31pm

        Re: the owners speaking as a group

        That would be fine, if the owners bore the liability for what their organization does. But they don’t--it’s legally a separate entity, hence the term “limited liability”.

        It seems to me you shouldn’t be able to have it both ways: if the company is distinct from the owners, then it cannot enjoy the same rights as the owners.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 5 Nov 2018 @ 4:41pm

          Re: Re: the owners speaking as a group

          if the company is distinct from the owners, then it cannot enjoy the same rights as the owners.

          Have an 'insightful' vote. This should be on billboards across the nation.

          reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 5 Nov 2018 @ 10:29pm

      Re:

      Corporations have no First Amendment rights. Only the individuals who work at them do. Obvious to anyone who supports the Constitution.

      This is false, and if it were true, it would be an absolute disaster. It would mean publications such as the NY Times or... well... us, would have no First Amendment protections either.

      Yes, corporations can and should have Constitutional rights and kneejerk responses saying they should not usually come from people who have little to no understanding of the issues.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Nov 2018 @ 6:47am

        Re: Re:

        Would be nice if they were to accept their "personal responsibilities" like they tell others to do.

        It is sad that a human construct is afforded more "rights" than a common citizen. How soon till a corporation runs for office?

        reply to this | link to this | view in chronology ]

      • identicon
        TDR, 6 Nov 2018 @ 8:19am

        Re: Re:

        If corporations didn't have the rights of personhood, while the company Techdirt would no longer have those rights, you and those who run it still would, as well as, in your case for example, freedom of the press. And the same would apply to every company. The constructs would lose the rights, but the people behind them would retain theirs. This forces them to deal with each other directly rather than through the facade of a fake person. And without the rights of personhood, a company cannot sue or do anything, cannot buy or sell other companies oar merge with them. The merger mania in the telecom sector, for example, would be impossible.

        Each company would have to stand or fall completely on its own, which would increase competition because they would know that they can no longer rely on simply eating up other companies and buying bad laws that only benefit them. Because with only the actual flesh and blood people having rights, it also means that any bad policy or action in the company could be traced directly to the executives who ordered it, and there would be no limited liability to shield them.

        This would also vastly reduce the ability of companies to influence government because by virtue of not having the human right to buy and sell, their size would be inherently limited, and the smaller they are, the less their ability to have any widespread influence on government. The telecom sector's ability to corrupt the FCC and dodge accountability would also be vastly lessened due to the companies no longer having the ability to merge and the execs no longer having the ability to hide behind a construct to engage in their shady tactics such as with the fraud during the net neutrality repeal, which itself never would have been possible if companies didn't have the rights of personhood.

        Corporations were widely hated and mistrusted in colonial days, and for good reason. The American Revolution was fought not just against the British, but against the company that used them as a proxy, the East India Tea Company. Just as church and state had to be separated, so too business and state must also be separated. The revocation of the rights of personhood would be a big step in that direction.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Nov 2018 @ 5:59pm

    Paint Chip Anarchist throwing a shit fit in 3, 2, 1...

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 6 Nov 2018 @ 5:27am

    In the worst case...stuff them with first amendment rights...

    If they are "information services" and they are making "editorial decisions", then they are responsible for the content being sent over their network, no?

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Close
Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.