We're about ten days and counting from the Federal Communications Commission issuing an Order with net neutrality rules, but one of three Democrats on the FCC who supports the idea now says that the draft on the table might not go far enough. That would be Mignon Clyburn, who told the Practicing Law Institute's annual telecommunications summit that she "still has many questions" about the proposal, particularly whether it adequately covers wireless broadband.

"Do we have a consensus item in front of us?" Clyburn asked out loud on Thursday. "I think we are pretty close. But my focus over the coming days will be to ensure that we are thinking through the implications of the wireless piece of the item. While I recognize that there are distinctions between wired and wireless networks, I think it is essential that our wireless networks—those of the present and future—grow in an open way just as our wired ones have."

Same experience required

This sentiment runs contrary to the intentions of FCC Chair Julius Genachowski, who offered a sneak preview of the Order on December 1. The rules will bar indeed "unreasonable discrimination" on wired networks, but wireless operators get a free pass, as long as they tell everybody what they're doing and don't throw a total block in front of traffic.

That's not enough for Clyburn, it seems. This principle of "equality" is crucial, she told the Practicing Law crowd, because some consumers rely entirely on wireless services for their broadband experience.

"We should ensure that, while there are two kinds of networks, we don't cause the development of two kinds of Internet worlds," Clyburn warned. "Aside from technical differences, the basic user experience should be the same."

Does this mean that Clyburn will throw a wrench into the works? Hard to tell. The Washington Post's Cecelia Kang quotes a "source at the FCC" whose seen the draft Order and says that the rules will also include paid prioritization, allowing ISPs to privilege their own content above those of providers like Netflix.

"This allows for fast and slow lanes and while it suggests it would be a negative thing, nowhere does it say it violates the principle of rules," the source told The Post.

Dirt road ahead

It should come as no surprise that 80 public interest and community organizations are bearing down hard on the Commission to come up with a tougher Order.

"Paid prioritization is the antithesis of openness," they warned the FCC on Friday. "Any framework that does not prohibit such economic discrimination arrangements is not real Net Neutrality. Without a clear ban on such practices, ISPs will move forward with their oft-stated plans to exploit their dominant position and favor their own content and services and those of a few select paying partners through faster delivery, relegating everyone else to the proverbial dirt road."

Signed, The New America Foundation, The Future of Music Coalition, Mother Jones magazine, Common Cause, and The United Church of Christ's Office of Communications, among other groups.

Interestingly, there seems to be one area where both supporters and opponents of net neutrality agree—the new Order may be based on very question legal terrain. Genachowski's announcement that the FCC will not rest it on limited common carrier rules rooted in Title II of the Communications Act doesn't sit well with these organizations. After all, in April the DC Circuit Court of Appeals declared bogus the agency's attempt to punish P2P-throttler Comcast based on Title I "ancillary authority."

Staying with Title I "is an unnecessary risk, not only to the Net Neutrality rule, but to the FCC’s entire broadband agenda," the groups say. "The FCC must restore its unquestionable authority to protect consumers, promote adoption and deployment, and serve the public interest in the broadband market."

Can't go back

Ditto (from a very different vantage point), declared Republican FCC Commissioner Meredith Attwell Baker, who also spoke at the Practicing Law conference.

"With respect to Net Neutrality specifically, the court did not say go back and think creatively about how to contort the statute to discover or discern new authority," Baker observed. "Yet, that is how we intend to proceed. The Chairman’s approach would have the Commission adopt policies far more intrusive than those previously rejected under effectively the same legal analysis. I see nothing that has changed so significantly in the past eight months with respect to our statutory authority to suggest a different outcome if, and when, our action is challenged."

In fairness to the FCC's Democratic majority, the DC Circuit didn't tell the agency what to do next, one way or the other. It just said the Commission couldn't act as it had against Comcast based on the statutory language that the government invoked. But if both sides of the net neutrality debate are questioning Genachowski's new legal logic well in advance of a published Order, it's safe to say that this latest bid is a crap shoot.

How much? That depends on how it gets enforced, and who takes it to court, and when.