Tom Wheeler, the chairman of the Federal Communications Commission, is moving forward with a controversial plan that would allow Internet Service Providers (ISPs) to charge content providers for faster service, which is against the basic principle of net neutrality.

Wheeler’s carefully worded blog post, which was written in response to the backlash from the draft of the Open Internet Notice Of Proposed Rulemaking, said the FCC would not allow ISPs to harm the Internet in any “commercially unreasonable manner.” That phrase, however, has yet to be clearly defined by the FCC.

As a result, the blog post from Wheeler, the former leader of the CTIA Wireless Association lobbyist group, simply reads like damage control.

“The allegation that [the Open Internet Notice Of Proposed Rulemaking] will result in anti-competitive price increases for consumers is also unfounded,” Wheeler said. “That is exactly what the ‘commercially unreasonable’ test will protect against: harm to competition and consumers stemming from abusive market activity.”

What constitutes “commercially unreasonable,” and “unreasonable” to whom?

What Can Be Done?

Net Neutrality is about treating all data on the Internet equally, regardless of the type of data or who it’s from, without third-party interference. But the FCC’s fast lane proposal, which it still calls “the Open Internet,” would all but do away with that idea. Online companies would be allowed to buy access for better service, which leaves out many smaller businesses, particularly those with innovative ideas that take up a lot of bandwidth.

In January, the U.S. Court of Appeals for the District of Columbia struck down the portion of the Open Internet Order that actually allowed the FCC to prevent pay for priority deals. The appeals court ruled that the FCC exceeded its legal authority when it issued the Open Internet Order, simply because the FCC had previously classified ISPs as information services under the law, but then tried to regulate them as “common carriers,” which is a designation typically reserved for old-style phone services.

The FCC could still do something about this ruling, if only it would reclassify ISPs as common carriers and stand behind its rules for net neutrality, although it sounds like Wheeler is shrinking away from that strategy, and focusing on an approach that wouldn’t result in blowback from Congress. Congress could always grant new statutory authority to the FCC, but the odds are that are unfavorable considering the partisan gridlock in D.C.

Without the FCC’s ability to enforce net neutrality, content providers are free to push for these fast lanes—but there is still time for something to be done. Final rules for the FCC’s plan are to be in place by the end of 2014, Wheeler wrote in the blog post, and people have until then to weigh in.

Free Press, a non-profit advocacy group that proposes online nondiscrimination, has called for the FCC to reclassify broadband as a telecommunications service so that it can prevent this pay-for-priority model from taking effect. The company argues that online competition would bend unfavorably towards large companies that can afford the tolls, should content providers be charged for faster Internet speeds.

Free Press is floating along a petition to Wheeler, and also offers more ways to take action. It may also be time to activate the Cat Signal.

Image of Julius Genachowski, Wheeler’s predecessor at the FCC, by Knight Foundation on Flickr under Creative Commons license.