The ruling is significant because it allows a previous ruling upholding the constitutionality of the regulations to stand, which may be used as a precedent in the future by another administration.
"The Department of Justice should not have been forced to make this filing today - the Ninth Circuit should have acted expeditiously, just as the Supreme Court expected them to do - but we will not hesitate to defend the Constitutional system of checks and balances vigorously and resolutely", Attorney General Jeff Sessions said in a statement after the appeals were filed. Instead, lower courts are examining how the government chose to wind it down.
Chief Justice John Roberts and Justice Brett Kavanaugh were both recused from deciding whether to take up the case. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have opted for Munsingwear vacatur, which would have left the D.C. Circuit's ruling without any precedential value. Providers complained that the rules were overly burdensome and a violation of the FCC's congressionally granted powers; consumer advocates said the rules were necessary as a vital consumer protection.
It takes four of the nine justices to agree to hear a case. Roberts owned stock in AT&T-owned Time Warner, while Kavanaugh took part in the case when he was a judge on the DC Circuit appeals court, Bloomberg Supreme Court Reporter Greg Stohr noted.
The FCC's rescission of the net neutrality rule came after Republicans, led by Chairman Ajit Pai, took control of the agency past year. It actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet policies. Jonathan Spalter, CEO of USTelecom, and other supporters of the Restoring Internet Freedom order, which negated net neutrality, believe broadband is an information service.
She added, "Let's call this interesting".
The Justice Department has also filed suit to block California's state net neutrality law from taking effect in January.