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Since 1966, the Federal Communications Commission has, one way or another, protected businesses that deliver services over the nation’s communications infrastructure. But in January 2014, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC’s net neutrality rules contained in its 2010 Open Internet Order. 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.”

Chairman Wheeler’s statement invites an obvious question: presuming that the FCC wants its rules to survive judicial scrutiny, what is the most prudent legal course? While the Commission has a variety of legal options, we focus here on two solutions that are almost certain to survive legal challenge, while not taking any position on the merits of possible alternatives.

We propose a novel option that relies on a partial return to the powers delegated to the FCC by Title II of the Communications Act. In particular, we suggest that the Commission take seriously the asymmetric framework suggested by the D.C. Circuit based on the premise that two distinct transmissions comprise a single broadband transaction. Consider a common usage of a broadband connection: first, the subscriber – the consumer – calls an application, service, or other content provider using the carrier facilities for which she has purchased access. Second, the content provider sends a response to the consumer, which necessarily traverses the broadband carrier’s facilities to reach the original consumer. This two-stage process is the framework adopted by the D.C. Circuit; as the court emphasized, it may be “logical to conclude that [a broadband provider] may be a common carrier with regard to some activities but not others.”


Communications Law | Internet Law | Law | Science and Technology Law