Document Type

Working Paper

Publication Date

2014

Center/Program

Kernochan Center for Law, Media and the Arts

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.

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