Sender Side Transmission Rules for the Internet

24 Pages Posted: 11 Jun 2014 Last revised: 13 May 2015

See all articles by Tejas N. Narechania

Tejas N. Narechania

University of California, Berkeley, School of Law

Tim Wu

Columbia University - Law School

Date Written: June 6, 2014

Abstract

In January 2014, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC's 2010 Open Internet Order, which contained the Commission's net neutrality rules. The Commission has since indicated that it will take up the D.C. Circuit's invitation to implement rules that, consistent with historic practice, meet the court’s test for preventing improper blocking and discrimination of 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 characterizing broadband transactions as including a call and a response, the Commission can conclude that response, or sender-side, transmissions are a telecommunications service under the statute. The second path is predominantly factual: The Commission can consider whether it is still swayed by its analysis, now well over a decade old, that analogizes 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.

Keywords: net neutrality, network neutrality, sender side, Title II, FCC, federal communications commission, open internet

Suggested Citation

Narechania, Tejas N. and Wu, Tim, Sender Side Transmission Rules for the Internet (June 6, 2014). 66 Federal Communications Law Journal 467; Columbia Public Law Research Paper No. 14-400. Available at SSRN: https://ssrn.com/abstract=2447107

Tejas N. Narechania (Contact Author)

University of California, Berkeley, School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://www.tejasnarechania.net

Tim Wu

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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