Why ISPs’ fight against net neutrality probably won’t reach Supreme Court

The next stop for net neutrality? (credit: Joe Ravi (CC-BY-SA 3.0))

The US appeals court decision upholding the Federal Communications Commission's net neutrality rules wasn't quite the final word on the matter, as ISPs immediately vowed to appeal the ruling, with AT&T saying it "expect[s] this issue to be decided by the Supreme Court."

But while ISPs will give it their best shot, there are reasons to think that the Supreme Court won't take up the case. The appeal probably won't even make it to a rehearing by the full appeals court, a potential intermediate step before a Supreme Court case, legal expert Andrew Jay Schwartzman wrote last week in a Benton Foundation article titled, "Network Neutrality: Now What?" Schwartzman is a Georgetown Law lecturer, an attorney who specializes in media and telecommunications policy, and a longtime consumer advocate who previously led the Media Access Project.

The broadband industry lost a 2-1 decision (full text) by a three-judge panel at the US Court of Appeals for the District of Columbia Circuit, which rejected challenges to the FCC's reclassification of broadband as a Title II common carrier service and imposition of net neutrality rules. The next step for ISPs and their lobby groups could be a petition for an "en banc" review in front of all of the court's judges instead of just a three-judge panel. They could also appeal to the Supreme Court after losing an en banc review or appeal directly to the Supreme Court without taking that intermediate step.

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