Deja Vu: FCC Will Try Again to Rewrite Open Internet Rules [Updated]

Proposal possible by late spring

Amid growing pressure to preserve the open Internet, Federal Communications Commission chairman Tom Wheeler said today that the commission is going to try again to craft rules that can withstand a court challenge.

The FCC will not appeal the D.C. Circuit Court's decision last month that remanded the rules back to the agency.

"The D.C. Circuit ruled that the FCC has the legal authority to issue enforceable rules of the road to preserve Internet freedom and openness," Wheeler said in a statement outlining his next steps.

But last month's court decision was a mixed bag, giving the FCC authority to set rules of the road for ensuring an open Internet, but striking down the no blocking and non-discrimination rules, the heart of the commission's rules. Wheeler said he instructed his staff to rewrite new rules that "fulfill" the same goals of no blocking and non-discrimination.

Even though Wheeler's staff will take a stab at rewriting the rules, Wheeler said he would keep open the option of reclassifying the Internet as a telephone service "on the table."

New rules of the road could be proposed as soon as late spring or early summer, an FCC official said during a press call.

The public will be invited to comment on both the new rules and the option to reclassify the Internet as a telecommunications service.

Wheeler also affirmed that he would hold Internet service providers to their commitment to honor the old rules as the FCC begins its work on the new ones. Comcast, for example, said it would continue to do so and would extend them to its purchase of Time Warner Cable, if the deal gets approved. Other ISPs, including Verizon and AT&T, have also committed to following the rules.

Wheeler's plan almost immediately stirred up an all too familiar debate in Washington, split along party lines, over what should be the FCC's authority to regulate the open Internet.

No matter what Wheeler proposes, it is likely to be opposed by the GOP commissioners, resulting in a 3-2 vote just like the 2010 vote over the old rules.

"Today's announcement reminds me of the movie Groundhog Day," said FCC commissioner Ajit Pai (R). "I am skeptical that this effort will end any differently from the last."

Both Pai and his fellow GOP commissioner Mike O'Rielly argued that the rules have always been a solution in search of a problem. "It appears that the FCC is tilting at windmills here," O'Rielly said in a statement.

GOP leaders in Congress are equally alarmed that the FCC is trying to do the same thing that landed it in court in the first place. Last time around, the House GOP passed a resolution denouncing the FCC's net neutrality rules.

"No matter how many times the court says 'no,' the Obama administration refused to abandon its furious pursuit of these harmful policies to put government in charge of the web," said House commerce chairman Fred Upton (R-Mich.) and communications and technology subcommittee chairman Greg Walden (R-Ore.), who added that the FCC had better things to do, like implementing the wireless spectrum auctions. Rep. Marsha Blackburn (R-Tenn.), vice chair of the committee said she would introduce legislation to block Wheeler's efforts.

Wheeler also took some hits from consumer and public interest groups that prefer the FCC reclassify the Internet as a telecommunications service, seeing it as the only way to preserve the open Internet.

"The FCC's reluctance to reverse its past mistakes is extremely short-sighted. More than that, it's a political choice driven by the industry's sustained campaign to demonize the important American principle of common carriage, which protects our right to have our communications carried free from discrimination," said Free Press president and CEO Craig Aaron.

Wheeler can take comfort that he has the unconditional support of the Administration and Congressional Democrats.

Congressional Dems Rep. Anna Eshoo (D-Calif.), ranking member of the communications and technology subcommittee and Sen. Ed Markey (D-Mass.) of the commerce committee, both issued statements praising Wheeler's plan.

Responding to White House petition calling for the FCC to reclassify the Internet as a telecommunications service, the administration said it was all up to the FCC. "The FCC is an independent agency," the White House said.