Can ISPs simply opt out of net neutrality?

Last week the DC Circuit denied a petition to rehear en banc its 2016 decision upholding the Federal Communications Commission’s (FCC) Open Internet Order. The brief one-paragraph denial was accompanied by two lengthy dissents (together comprising 84 pages) explaining why, in the dissenting judges’ views, the court should have reheard the case, as well as a 23-page concurrence by the original panelists defending their earlier decision. In recent years, circuit judges have skillfully used dissents from en banc denials to signal to the Supreme Court that a case might be worthy of consideration. And indeed, it appears that both the dissenting and concurring opinions are speaking to the justices at One First Street. But it is unclear if they are listening: The Supreme Court takes only a small percentage of available cases each year and is unlikely to be interested in interpreting an order that the agency seems poised to vacate.