Academic journal article Federal Communications Law Journal

Sender Side Transmission Rules for the Internet

Academic journal article Federal Communications Law Journal

Sender Side Transmission Rules for the Internet

Article excerpt

Table of Contents    I. Introduction  II. Background      A. The Original Antidiscrimination Regime      B. From Computer II to Information Service III. Present Options      A. Sender Side Transmission Rules      B. Changed Circumstances      C. Proceeding by Adjudication  IV. Conclusion 

I. Introduction

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. (1) 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." (2)

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. (3) 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." (4)

The FCC may therefore decide, as a matter of first impression, that response transactions are subject to common carrier rules against discrimination and blocking. Indeed, as we explain below, none of the arguments that the information service designation applies to a broadband connection's call service can be said to apply to the response transaction. Cabining the reach of the Commission's Cable Modem Order, which designated the call transaction an information service, (5) to only the first stage of the two-stage framework would restore the Commission's authority to enforce network neutrality rules over broadband-delivered content. In addition, because such sender-side regulation focuses on incoming traffic, it also provides a useful framework for addressing interconnection disputes between broadband carriers and content providers.

Alternatively, the FCC could simply examine whether changed circumstances have undermined its decade-old decision (6) to reclassify broadband transmissions from telecommunications services to information services. Our examination of the Commission's analysis shows that the factual premises underlying its 2002 conclusion are now largely obsolete. That decision relied on the outdated premise that broadband subscriptions were akin to dial-up services including AOL, all of which offered a bundle of services including email access, branded web browsers, newsgroups, chat rooms, and other Internet-based services. Today, the relevance of these bundled services is highly diminished, as broadband subscribers overwhelmingly rely on third-party services and products such as Gmail, Firefox, Google Groups, Facebook, Twitter, and Instagram. (7)

Thus, the FCC has at least two available paths. …

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