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FCC to Release Draft Net Neutrality Rules in May

It’s the third time the agency has tried to craft Internet rules that will stick.

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Federal regulators are expected to release draft net neutrality rules in mid-May as part of an ongoing effort to craft rules for Internet traffic that might actually hold up in court.

Federal Communications Commission Chairman Tom Wheeler said Wednesday that the agency would consider draft “Open Internet,” or net neutrality, rules at an agency meeting May 15. As we reported in February, Wheeler will propose basically the same rules that the agency had tried before, but justify them under a different part of the law.

Consumer groups have complained about that plan because they’re worried that Wheeler’s rules may not hold up in court either. A federal appeals court rejected two previous versions of net neutrality rules after finding fault in the FCC’s legal reasoning. During the latest smackdown, however, the court suggested that the FCC had some authority to impose net neutrality rules under a section of the law that gives the agency the ability to regulate the deployment of broadband lines.

Internet activists would prefer that the FCC just re-regulate Internet lines under old rules designed for telephone networks, which they say would give the agency clear authority to police Internet lines. Wheeler has rejected that approach for now. Phone and cable companies, including Comcast, AT&T and Verizon, have vociferously fought that idea over the past few years.

Update: The FCC rules being proposed will include one major change from the agency’s last effort in 2010, according to an FCC official.

The chairman will propose allowing Internet service providers (ISP) to sell Internet and content companies special fast-lane, last-mile access to consumers. Four years ago, the agency’s Open Internet rules allowed for ISPs to offer similar specialized, fast-lane services but that was over a private part of an Internet provider’s line. (The term was also pretty vague and the agency said it would monitor the use of such services.) This would be over the public Internet, people briefed on the matter say.

The proposed rules would require broadband providers “to offer a baseline level of service to their subscribers, along with the ability to enter into individual negotiations with content providers,” an FCC spokesman said. Broadband providers would be required to act in a “commercially reasonable manner” that would be subject to case-by-case review by federal regulators.

That change already had some public interest groups complaining Wednesday afternoon. Common Cause said the FCC “is about to roll over on net neutrality.”

Free Press, a public interest group frequently critical of the agency, said the FCC was trying to create a “payola Internet” which would gut the entire concept of net neutrality. “Giving ISP’s the green light to implement pay-for-priority schemes will be a disaster for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls,” said Free Press president Craig Aaron.

Update: FCC Chairman Tom Wheeler released a statement late Wednesday night denying he was killing the Internet as we know it. Here it is in full:

“There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong. Tomorrow we will circulate to the Commission a new Open Internet proposal that will restore the concepts of net neutrality consistent with the court’s ruling in January. There is no ‘turnaround in policy.’ The same rules will apply to all Internet content. As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted.”

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