Net Neutrality Advocates Oppose Cert Petitions, SG Request for Vacating Title II Order as Moot
Net neutrality advocates urged the Supreme Court not to review or vacate a lower court ruling upholding the FCC 2015 Communications Act Title II broadband regulation order. Cert petitions seeking review of the U.S. Court of Appeals for the D.C.…
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Circuit's affirmation should be denied, and the solicitor general's proposed vacatur under a mootness precedent isn't justified, said a brief filed Friday by Public Knowledge, New America's Open Technology Institute, the Ad Hoc Telecommunications Users Committee, the Center for Democracy and Technology, NARUC and Vimeo in Daniel Berninger v. FCC, No. 17-498. Given the current FCC's January net neutrality deregulation, the SG recently asked justices to grant cert but vacate the D.C. Circuit judgment and remand the 2015 order litigation with directions to declare related legal challenges moot, or to consider the effect of the new order (see 1808030041). "We assume petitioners will take the same position, although most are apparently waiting to explain why until they file reply briefs," said the net neutrality advocates (NARUC opposes FCC pre-emption provisions). Cert petitions were filed last September, and the court is considering the petitions now "because petitioners and the Government collectively took more than ten months’ worth of extensions," the net neutrality advocates said. "After the 2016 presidential election, the Commission realigned itself with petitioners and worked with them not only to repeal the Open Internet Order, but also to delay this Court’s review long enough for the repeal to moot the case and lay the groundwork for their present joint request for vacatur" under 1950's Munsingwear, they said. "This Court’s review was prevented through the cooperative effort of the parties seeking vacature to successfully delay the Court’s consideration of the petitions until the case was moot. Respondents are unaware of any case in which the Court has rewarded such manipulation." A Free Press brief also urged cert denial.