Under a draft rulemaking proposal circulated late last week by FCC Chairman Tom Wheeler, phone service carriers and other network-based providers of broadband Internet services would be permitted under certain conditions to impose toll fees on websites, such as Netflix and Hulu, that seek to provide faster or higher quality connection speeds to their customers. The draft notice constitutes the FCC’s third attempt at enacting net neutrality rules and responds to a January ruling by the D.C. Circuit Court of Appeals that struck down key provisions of the FCC’s Open Internet Order. Adopted in December 2010, the Open Internet order prohibited broadband Internet service providers (ISPs) from blocking or degrading lawful web content and engaging in discrimination with respect to the transmission of Internet traffic. Although the court affirmed the FCC’s authority to enact rules that are intended to promote broadband in accordance with Section 706 of the 1996 Telecommunications Act, the appellate panel decreed that the FCC had overstepped its authority by effectively regulating broadband ISPs as common carriers without having first classified ISPs as common carriers. Under the FCC’s latest proposal, network operators would be allowed to charge websites for access to premium broadband “fast lanes” as long as such access is provided in “a commercially reasonable manner” that complies with standards to be set by the agency. Although the proposed rules would still require ISPs to provide a base level of service to subscribers and would bar ISPs from blocking or discriminating in the transmission of lawful web content, carriers would be required to disclose to the FCC how they treat web traffic, the terms on which they provide access to premium fast lanes, and whether they offer favorable access to affiliated content providers. Denying that the agency “is gutting the open Internet rule,” Wheeler maintained in a blog post that “the same rules will apply to all Internet content” and that the FCC’s goal in promulgating the rules is to protect consumers. While reaction from carriers such as Verizon and AT&T was muted, both opponents and supporters of the 2010 Open Internet order found little comfort in the proposed rules or in Wheeler’s explanation. A spokesman for Public Knowledge lamented that “the FCC is inviting ISPs to pick winners and losers online.”