The Federal Communications Commission (FCC) is reviewing a draft Notice of Proposed Rulemaking (NPRM) to reinstate so-called “net neutrality” rules aimed at preventing the operators of broadband networks from treating consumers and content providers unfairly. As we reported in January, the US Court of Appeals for the DC Circuit struck down most of the FCC’s previous rules for lack of statutory authority. Verizon v. FCC (No. 11-1355). True to his promise, FCC Chairman Tom Wheeler has ensured that replacement rules will be considered.

Although the draft NPRM has not been released to the public, what some have heard of its contents is not encouraging. Fears persist that operators will be givencarte blanche to discriminate against third-party content. Many predict that, without strong FCC rules and enforcement, the Internet will become a playground for only the richest consumers and content providers.

Yesterday, Chairman Wheeler released a statement defending the NPRM against early criticism, stating flatly that “behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted.”

The Chairman summarized, “The Notice does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users.” He then set forth the three core rules in the NPRM:

  • Broadband providers would be required to disclose “all relevant information as to the policies that govern their network”;
  • No “legal content” may be blocked; and
  • Broadband providers “may not act in a commercially unreasonable manner to harm the Internet,” and that includes a prohibition on “favoring traffic from an affiliated entity.”

Chairman Wheeler believes that these rules fully realize the FCC’s statutory obligations while also comporting with the DC Circuit’s Verizon decision.

What appears to be missing from the NPRM was a tentative decision to reclassify broadband service as common carrier telecommunications under Title II of the Communications Act, a result that the DC Circuit seemed to encourage when it struck down the prior rules. Many believe that reclassification is crucial to adopting net neutrality rules that can survive appeal and be effective. To them, Chairman Wheeler said that “even Title II regulation … only bans ‘unjust and unreasonable discrimination.’” In other words, the Chairman believes that the NPRM will do no less than what Title II could do. The question is, however, whether any rules not grounded in Title II can long endure.

The NPRM has been presented “on circulation” which means that each Commissioner will review it and cast his or her vote with the FCC Secretary. There is no deadline for voting. One would imagine, however, that Chairman Wheeler will urge his fellow Commissioners to act expeditiously on the NPRM, if only to curtail further “misinformation,” as he called it, from being discussed in the media.