​How Judge Kavanaugh’s (Presumed) Appointment Would Alter Future Net Neutrality Litigation

When a Judge on the DC Circuit Appellate Court declares a rule “one of the most consequential … ever issued” in a dissent, they have strong feelings on the topic. This is how Supreme Court nominee and sitting Judge Brett Kavanaugh began his dissent in United States Telecom Ass’n v. FCC No. 15-1063 (May, 2017).  The litigation came to Kavanaugh’s desk after legal maneuvering in the lower courts. (link to full opinion).

A net neutrality synopsis requires much more verbiage than a simple blog post allows. The full text of the FCC’s guidelines can be found here. In (brief) summary: The FCC passed a new set of guidelines in 2015 aimed at keeping the Internet, “fair, open and fast” for everyone. Under the rules, internet service providers were required to treat all online content the same. They couldn't deliberately speed up or slow down traffic from specific websites or apps, nor could they put their own content at an advantage over rivals. (link to story).

Kavanaugh’s dissent – now a moot point thanks to subsequent roll back of the protection – argued Congress had not given that broad of rulemaking authority to the FCC. Additionally, ISPs had First Amendment rights to regulate speech on their respective platforms.  Your personal viewpoint on whether Kavanaugh’s opinion meets or misses the mark likely depends on your political prejudices, and it is not the hope of this post to convert devotees to one side of the aisle or the other.

But the message to Congress should be clear. If Judge Kavanaugh eventually ascends to the highest Court, Congress should not spare any turn of phrase to ensure the FCC (and all other administrative agencies) have its full-throated support in enacting net neutrality regulations.