FCC Seeks To Vacate Decision Upholding Obama-Era Net Neutrality Rules

Earlier this year, the Federal Communications Commission finalized its repeal of the Obama-era net neutrality regulations, which prohibited broadband providers from blocking or throttling traffic and from charging higher fees for prioritized delivery.

Now that those regulations are off the books, the FCC and the Department of Justice are asking the Supreme Court to vacate a lower court's 2017 decision to uphold the former rules, arguing that the prior decision has become "moot." The government argues that all questions involving net neutrality should be rolled into a pending lawsuit filed by net neutrality supporters -- including a coalition of attorneys general, consumer advocates and tech companies -- over the legality of the recent repeal.

"The legal questions concerning the proper regulatory treatment of broadband services will be resolved in the pending challenges to the 2018 Order," the government argues in a legal brief filed last week with the Supreme Court.

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The new papers are the latest development in an ongoing battle over broadband regulations. In 2015, the Democrat-led FCC voted to reclassify broadband service as a utility and impose common carrier rules on providers -- including bans on throttling, blocking and paid fast lanes.

AT&T, along with others who opposed the rules, sued to vacate them. AT&T and the others argued that the FCC lacked authority to impose the regulations. A three-judge panel of the D.C. Circuit Court of Appeals ruled against the challengers in 2016. The carriers then sought a review before the entire Circuit Court. The majority of the court rejected that request, but Brett Kavanaugh -- nominated last month for a spot on the Supreme Court -- said in a written dissent that he believed the rules were invalid.

AT&T and others said in court papers that they planned to appeal to the Supreme Court. But before the companies made their substantive arguments, the current FCC passed the "Restoring Internet Freedom Order, which revoked the Obama-era rules and replaced them with a regulation requiring Internet service providers to provide "transparent" information about their traffic management practices.

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