fcc_newThe Net Neutrality debate is heating up once again. What was reported by numerous news media yesterday as a move by the FCC away from the Open Internet  is actually quite the opposite, said senior FCC officials on a conference call with reporters this morning. FCC Chairman Tom Wheeler has circulated a draft of a notice of proposed rule making (NPRM) within the FCC that aims to re-instate Open Internet rules that were struck down by an appeals court earlier this year, the officials said.

The Open Internet rules that were struck down prevented blocking of legal traffic and “unreasonable” traffic discrimination. The second item is particularly contentious because in striking down that rule, the court left open the possibility that broadband providers might be able to charge more for higher-priority traffic — a possibility that Silicon Valley and some consumer groups are vehemently against.

When the court struck down those rules it said the FCC had not established its authority to impose those rules, but left open the possibility that the commission might be able to impose the rules if it could demonstrate that it had the authority under a specific section of the 1996 Telecom Act that gives the commission the authority to enact measures that would encourage the deployment of broadband infrastructure.

Latest Net Neutrality NPRM
The NPRM that Wheeler is circulating aims to re-impose the Open Internet rules using that authority so that courts will uphold the rules, officials said. FCC commissioners will vote on whether to adopt the NPRM on May 15, the officials said. If adopted a comment period would ensue before any further action would be taken.

According to the officials, the court decision that struck down the Open Internet rules advised the FCC to focus on what was “commercially reasonable” if it were to attempt to re-impose rules about the treatment of traffic. As a result the NPRM will propose fact-based rules to determine what is commercially reasonable. Examples of such rules might be whether conduct is anti-competitive or bad for consumers, or whether broadband providers acted in good faith.

The NPRM also asks for comment on whether certain practices are so clearly unreasonable that they should be prohibited, the officials said.

The previous Open Internet rules did not include an outright ban on traffic prioritization the FCC officials said. They also noted that there might be times when traffic prioritization might be appropriate, such as for a connection to a heart monitor and that the NPRM asks for input on when traffic prioritization might be appropriate.

The previous rules did prohibit the blocking of lawful content and that provision also is included in the rules proposed in the NPRM, officials said. The previous rules also did not touch on interconnection between service providers such as the ones between Comcast and Netflix that have been a source of controversy, nor do the rules proposed in the NPRM, they said.

According to the officials, people who believe they have been harmed by service providers in connection with Open Internet rules would be able to file informal or formal complaints. Additionally the FCC envisions monitoring blogs, newspapers and other sources for potential violations.

The NPRM does not propose classifying broadband Internet as a Title II telecommunications service – another option that the appeals court left open for the FCC. Reclassification would subject broadband to broad regulation and industry stakeholders are generally opposed to the idea. But the FCC officials noted today that the FCC still has a proceeding open about Title II reclassification and that the NPRM asks for input on when and where Title II might be used.

The upshot of all of this is that broadband providers may or may not be allowed to charge for paid prioritization, depending how the NPRM process shakes out.

Rancorous Open Internet Debate
One thing that was very clear from some of reporting around this topic, however, was that Net Neutrality advocates have a lot of sympathy with a lot of media outlets. Take this GigaOm head: . Or the statement from Ars Technica that “New Net-Neutrality rules are anything but neutral.”

The debate isn’t likely to get any less rancorous moving forward —  particularly when the topic of paid prioritization comes into play. And people who want to prevent that are not going to give up easily no matter what courts and regulators say.