In response to widespread press reports that the FCC was preparing to adopt new network neutrality rules that would, among other things, allow “edge providers” (including companies such as Disney, Google or Netflix) to pay Internet service providers for special, faster lanes to send video and other content to their customers, FCC Chairman Tom Wheeler has posted a message on the FCC’s website describing a proposed Notice of Proposed Rulemaking (“NPRM”) that he is circulating to the other members of the Commission today. Chairman Wheeler indicated that his intent is to have the Commission adopt the NPRM at the agency’s meeting at the end of May and to have new rules in place by the end of the year.

Chairman Wheeler’s blog post characterized reports that the Commission was abandoning its prior network neutrality policies as being “inaccurate.” Rather, the new rules are intended to replace those rejected by the D.C. Circuit in January. (See January 2014 – Edwards Wildman Client Advisory: D.C. Circuit Strikes Down Net Neutrality Rules, Affirms FCC Has Limited Authority to Regulate Broadband, January 2014). That the Chairman would propose new rules is not a surprise: in February, Chairman Wheeler released a statement that the FCC would not appeal the D.C. Circuit decision, but would consider all other available options in pursuit of reviving the rules, including Title II reclassification of broadband services. (See February 2014 – Edwards Wildman Client Advisory - FCC Intends To Propose New Net Neutrality Rules).

The proposed NPRM that the Chairman is circulating to his fellow Commissioners will, in the Chairman’s words, “follow the roadmap” established by the January court decision by focusing on rules that protect against “commercially unreasonable” practices that harm consumers. Specifically, the NPRM will propose:

  1. That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network; 
  2. That no legal content may be blocked; and 
  3. That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

The Chairman indicated that the proposed rules will establish a “high bar” for what is “commercially reasonable.” In addition, while the FCC will not seek reclassification of Internet service under Title II, the Chairman’s blog post cautioned that pursuing regulation under Title II remains a “clear alternative,” albeit one that would still only protect against “unjust and unreasonable discrimination.”

Following adoption of the NPRM in May, interested parties will have an opportunity to submit comments to the FCC.