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Abstract

I. Introduction

II. Communications Regulation and Net Neutrality ... A. Regulation of Plain Old Telephone Service ... B. Regulation of Data Processing and Dial-Up Internet Services ... 1. Forbearance from Regulating Enhanced and Information Services ... 2. Regulations Subsidizing the Dial-Up Internet ... a. Common Carrier Resale ... b. Access Charge Exemptions ... C. Pre-Common Carrier Regulation of Broadband Services ... 1. Competition Begets Net Neutrality Theory ... 2. Initial Broadband Classification Decisions ... 3. Adjudicatory Net Neutrality Decisions ... 4. First Internet Order ... D. Reclassification of Broadband as a Common Carrier Service

III. Dissemination of Mass Media Communications ... A. Application of the Press Clause to Dissemination ... B. The Distinction between Speech and Conduct ... C. The Distinction between Mass Media and Common Carrier Communications ... D. The Implications of Denying First Amendment Protection to ISPs ... 1. No Constitutional Right to Access Mass Media Communications Systems ... 2. Lack of Standing to Invoke First Amendment against Government Censorship

IV. Level of First Amendment Scrutiny ... A. ISPs Disseminate Print Media ... B. The Rules Are Content-Based ... 1. The Rules Are Content-Based on Their Face ... 2. The Purpose of the Rules Is Content-Based ... 3. The Gatekeeper Theory Is Content-Based ... C. The Rules Are Speaker-Based ... D. Cable Television Precedent Is Inapplicable ... E. The O’Brien Distinction between Speech and Conduct Is Inapplicable

V. Application of First Amendment Scrutiny ... A. Assuring a Diversity of Non-ISP Speech ... B. The Gatekeeper Theory Is Unsupported by Substantial Evidence ... C. The Gatekeeper Theory Is Inconsistent with Established Precedent ... 1. Telegraphy and Telephony ... 2. Broadcast and Cable Television ... 3. Mail Carriage ... D. Issue Preclusion Does Not Apply ... E. There Is No Factual Finding of Scarcity

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