Tim Wu and Tejas N. Narechania (Columbia University – Law School and Columbia University – Law School) have posted Sender Side Transmission Rules for the Internet (Federal Communications Law Journal, Forthcoming) on SSRN. Here is the abstract:
In January 2014, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC's Open Internet Order, which contained the Commission's net neutrality rules. FCC Chairman Tom Wheeler has since indicated that he will take up the D.C. Circuit's invitation to implement rules that, consistent with historic practice, "will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic." In this paper, we consider the Commission's options for a path forward under Title II of the Communications Act. We find that the FCC has at least two available paths. The first is predominantly legal: By adopting the two-stage framework articulated by the D.C. Circuit, that each broadband transaction includes a call and a response, the Commission can conclude consistent with its previous Orders that sender-side transmissions are a "telecommunications service" under the statute. The second path is predominantly factual, and requires the Commission to consider whether it is still swayed by its analysis, now well over a decade old, analogizing broadband subscription services to dial-up Internet access. Regardless of the path the Commission chooses, it will reach a similar destination. Either course allows the Commission to meet the promise to prevent improper blocking and discrimination.