The term is key: FCC Chairman Tom Wheeler says in a blog post that the ability to bar “commercially unreasonable” practices empowers the agency — in a plan he will begin to circulate — to crack down on Internet service providers that discriminate against some content providers. But open Internet advocates fear it’s too squishy, and could allow ISPs to create tiers of service that enable some content providers (Netflix or HBO GO, perhaps) to pay for speedy transmissions. Wheeler hopes to “conclude this proceeding and have enforceable rules by the end of the year.” The plan he will begin to circulate will look at net neutrality violations on a case-by-case basis, an adjustment needed to meet the objections that the D.C. Court of Appeals raised in January when it remanded the FCC’s previous net neutrality rules. But he vigorously objects to the “great deal of misinformation” that characterized his proposal as an effort to gut the principle of open Internet by allowing companies to pay for speedier service. His plan “would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted,” he says. The court said that the FCC could stop practices it deems not ” commercially reasonable” — and he says that his plan will “establish a high bar for what is ‘commercially reasonable.'” To that end, his proposal would require Internet service providers to disclose policies governing their networks, and bar any blocking of legal content. His definition of what would be “commercially unreasonable” would include an ISP favoring traffic from an affiliated entity. Wheeler adds that the possibility of re-defining the Internet as a regulated common carrier service, as opposed to a lightly regulated information service, “remains a clear alternative.”
Wheeler’s plan would not address so-called peering arrangements like the one that Netflix struck with Comcast — and now criticizes as an “arbitrary tax” by the cable giant. That involved the streaming service’s connection with Comcast; the FCC rules govern the last mile traffic between an ISP and its customers.
Open Internet advocates began to attack Wheeler’s proposal yesterday based on news reports about his intentions. “If true, this proposal is a huge step backwards and must be stopped,” former FCC Commissioner Michael Copps, who’s now with Common Cause’s Media and Democracy Reform Initiative, said. “If the Commission subverts the Open Internet by creating a fast lane for the 1 percent and slow lanes for the 99 percent, it would be an insult to both citizens and to the promise of the Net.” And the Writers Guild of America East said that “permitting the key corporate players in the digital world to favor content based on the ability to pay throws the concept of neutrality directly under the bus.”