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Well here’s an interesting twist on the net neutrality debate. Mozilla, the open source foundation behind the Firefox browser, thinks that it has found a legal way to get the Federal Communications Commission to protect network neutrality and to give consumer activists calling for the agency to regulate broadband as a utility what they want.

Mozilla filed a petition with the FCC Monday asking the agency to recognize that, in addition to the relationship between ISP’s and their end customers, there is a separate relationship between the content provider (Amazon, Google, Netflix etc) and the ISP, and that relationship should be classified as transport under Title II of the 1996 Telecommunications Act.

Instead of saying the ISP simply has a duty to deliver all packets over its pipes to the consumer without discrimination, Mozilla claims there is a second legal obligation: a duty the ISP owes to content providers, who expect their packets to be delivered in a neutral manner. Mozilla suggests that the FCC split this relationship into two relationships, and that it classify the content-provider and ISP relationship as transport.

In that way, the FCC can continue making rules on the consumer side under the current regulatory regime, but apply more regulatory oversight between the ISP and the content provider. The proposal would also protect net neutrality on wireless networks. From the Mozilla blog post on the topic:

Categorizing remote delivery services as telecommunications services is consistent with the guidelines set by both Congress and the DC Circuit Court of Appeals, and would give the FCC ample ability to adopt and enforce meaningful net neutrality. With clear authority and effective rules, ISPs would be prevented from blocking or discriminating against any edge provider, whether on a wireline or wireless network.

A bit of history — okay, a lot of it.

There’s a lot to unpack here, so let’s take it in order. Back 2002 when broadband was gaining popularity mostly because it was a delivery vehicle for email, the FCC ruled that broadband was classified as an information service, with email and various web pages being the information. This is unlike phone lines, which were transport services, which allowed the FCC more power of making sure no one played unfairly.

In a series of rulings, the FCC declared DSL, cable broadband and wireless broadband information services, under Title I of the telecommunications Act. That, from a net neutrality perspective today, was the beginning of the end.

In 2010, the U.S. Federal Court of Appeals struck the first real blow in the reclassification fight noting that because cable broadband was classified as an information service the FCC couldn’t censure Comcast for blocking P2P files. At the time, since the agency was in the process of writing formal net neutrality rules, as opposed to the basic principles it had followed since 2005, the thinking was that the agency would solidify its position and reclassify broadband as transport under Title II.

It didn’t. Former chairman Julius Genachowski was too afraid of the telco lobby and Congress to solve the gaping hole in the net neutrality rules. Instead, he tried to walk the line between reclassifying broadband and keeping telcos happy, which led to the decision in January, that gutted the agency’s net neutrality rules.

Back to the present

Now, with Chairman Tom Wheeler at the helm, proponents of network neutrality are calling for the agency to reclassify broadband like it should have done in 2010 — to undo the series of decisions it made going back as far as 2002 when broadband providers often did provide email, storage and other so-called information services.

Instead, Wheeler is taking a path to net neutrality that will allow ISPs to create different traffic lanes and possibly even offer companies — from new services to content providers like Amazon or Netflix — the chance to pay to get their traffic priority on last mile networks.

This is a solution that will fundamentally change the internet — although Wheeler denies that ISPs will have free rein to start charging. The agency’s rules currently propose a non-blocking provision as well as order transparency regarding any prioritization. The agency plans to start the process of making those rules the law of the land with the release of a Notice of Proposed Rulemaking on May 15. The idea is that Wheeler’s compromise will take effect before the end of the year.

The next steps

Mozilla’s proposal calls on the FCC to make a Declaratory Judgement, and the hope is by petitioning the agency now, it can influence the content of the Notice of Proposed Rulemaking, so this suggested new relationship is discussed in parallel. Chris Riley, senior policy engineer at Mozilla, says he’s hoping the agency can issue a declaratory judgment recognizing this relationship and protect net neutrality also before the end of the year.

But can this work? It’s a neat way to call Wheeler’s bluff on the reclassification issue, which is so politically charged, that he truly can’t touch it. Instead of attacking the cable and telcos from the front on reclassification, he could sneak around from the side. However, Wheeler’s made statements in the past that indicate he’s okay with a double-sided market for broadband, which means he may not want to impose this new relationship on ISPs.

Such an action would also undoubtedly lead to lawsuits if it were implemented, which throws net neutrality into doubt for even longer. However, it’s about time someone changed the terms of this debate to reflect how the internet has changed since 2002 when the FCC decided it wasn’t a utility. Since then, as people have abandoned ISP-specific email, portals and more to surf for content and choose services delivered from the wider internet, it’s clear that ISPs are a conduit for content and services, not a provider of them.

Mozilla seeks to get the FCC to recognize this in a way that might be politically viable. Hopefully the agency takes Mozilla up on the idea.

This story was updated at 8:22 to correct Chris Riley’s title. He is a senior policy engineer not general counsel.