FCC Chairman Tom Wheeler is considering a novel legal strategy for solving the net neutrality mess the agency is currently in, one that would combine elements of the FCC’s two main legal options for enforcing rules on Internet providers.
Wheeler’s aides have been hinting for a month that the agency is seriously considering a so-called “hybrid” strategy, which would essentially regulate sections of Internet lines differently.
Broadband connections to consumers would be regulated lightly as a “retail” service. Lines between websites and services (or “edge providers,” in FCC-speak) and broadband providers would be regulated under old rules written for old phone networks. The Wall Street Journal also dug up some details about this hybrid proposal for a story published Thursday night.
Net neutrality is the idea that Internet providers shouldn’t be allowed to block or discriminate against any legal traffic. The FCC has tried twice to adopt net neutrality rules for Internet lines, but both attempts were shot down by the courts.
The agency has been considering three options. It can move ahead with what Wheeler already proposed, although that plan was widely criticized because it would allow Internet providers to charge websites and content companies for fast-lane service to consumers. The plan drew 3.9 million mostly negative comments, an agency record.
The FCC could re-regulate Internet lines under Title II of the Communications Act, which was written for old phone networks. That approach would unleash a flurry of lawsuits from phone and cable companies that don’t want to operate under antiquated rules that could force them to offer competitors wholesale access to their lines.
Taking a little bit from each side would allow Wheeler to argue that he’s trying to reach a compromise.
Net neutrality advocates argue that the third option, the hybrid approach, isn’t the best way to move forward since the plan is so convoluted it probably won’t hold up under the inevitable legal challenge. They want the agency to reverse a 2002 decision to deregulate Internet lines, which would give the agency clearer authority to police Internet providers.
Stanford Law School professor Barbara van Schewick told Wheeler’s aides earlier this month that if the FCC tries a hybrid approach, “the FCC would lose in court a third time,” according to a filing with the agency Thursday in which she laid out in detail why such an approach would belly flop.
Public interest group Public Knowledge’s Senior Vice President Harold Feld also argued recently that it wasn’t a good approach: Since “the various ‘hybrid’ and ‘sender side’ approaches are complex and untested, they invite carriers to play games and find loopholes.”
Internet providers aren’t wild about the idea either, because they don’t want the FCC regulating any part of their lines under old Title II phone rules.
Internet providers and their supporters have been producing a flurry of papers arguing against the re-regulation approach, with titles like “Thinking the Unthinkable” and “Will the FCC Break the Internet?”
Ironically, even Verizon Communications this week embraced the same legal authority it sued the FCC over four years ago, a case that resulted in a federal appeals court tossing the FCC’s last effort at net neutrality rules.
With the election almost here — thereby lifting the unofficial ban on federal agencies doing anything even remotely controversial — Wheeler is expected to unveil his proposal in the next few weeks. An FCC spokeswoman declined to comment.
Update: An FCC spokeswoman said Friday in a statement that “the Chairman has said that all Title II options are under serious consideration, including proposals by Mozilla, CDT and others.”
Trade publication Communications Daily wrote earlier this week that the agency could vote on net neutrality rules in December.
That has prompted a flurry of new lobbying from both sides. Last week, one advocacy group, Fight for the Future, even launched a viral campaign urging people to call the FCC — anyone at the FCC — to ask them to save net neutrality.
This article originally appeared on Recode.net.