The Mozilla Foundation today is filing a petition asking the Federal Communications Commission to declare that ISPs are common carriers, but there's a twist.

The FCC doesn't have to reclassify the Internet access ISPs offer consumers as a telecommunications service subject to common carrier regulations under Title II of the Communications Act, Mozilla says. Instead, the FCC should target the service ISPs offer to edge providers like Netflix and Dropbox, who need to send their bits over ISP networks to reach their customers. Classifying the ISP/edge provider relationship as a common carrier service will be a little cleaner since the FCC wouldn't have to undo several decade-old orders that classified broadband as an "information" service rather than telecommunications, Mozilla argues.

In a summary of the petition, Mozilla wrote:

The FCC currently views last-mile Internet routing as only one commercial relationship: the relationship between an ISP, such as Comcast, and the end user. Mozilla is urging the FCC to recognize that technological evolution has led to two distinct relationships, adding a relationship between the ISP and edge providers. The petition calls on the FCC to designate last-mile delivery of edge provider communications as “remote delivery” services, and as telecommunications services under Title II of the Communications Act. These services include all of our Internet activity, from watching a video on YouTube to shopping on Amazon to playing online games on Xbox Live. Categorizing remote delivery services as telecommunications services would meet the standard set by the DC Circuit Court of Appeals and give the FCC legal authority to adopt and enforce meaningful net neutrality. With clear legal authority and effective rules, ISPs would be prevented from blocking or discriminating against any edge provider, such as speeding up or slowing down competing video streaming services.

Mozilla, maker of the Firefox browser and other software, explains its view in more detail in a blog post and the 13-page petition.

The petition was written by Mozilla Senior Policy Engineer Chris Riley and Public Policy Lead Alex Fowler. Riley, who formerly worked as an attorney-advisor at the FCC in 2007 and 2008, told Ars that he's concerned FCC Chairman Tom Wheeler's latest net neutrality proposal won't withstand court scrutiny.

The FCC had to start from scratch after a federal appeals court ruled that anti-blocking and anti-discrimination rules imposed common carrier obligations on ISPs, despite the fact that the FCC had declared that they were not common carriers.

Nonetheless, Wheeler has floated a new proposal that doesn't declare ISPs as common carriers yet imposes no-blocking requirements on them. The proposal also allows edge providers to pay ISPs for a faster path to consumers, as long as the arrangements are "commercially reasonable."

Wheeler hasn't yet provided full details of his proposal, but it's expected to be discussed at the May 15 FCC meeting.

"My understanding is he's talking about somehow getting to a baseline quality of service but allowing for commercially reasonable negotiations for priority on top of that," Riley said. "I sort of understand that but I think any baseline quality of service, if it's protected by the FCC, is going to be viewed by the DC Circuit [court of appeals] as a no-blocking rule and is going to be exactly the sort of thing they said not to do."

The FCC will likely justify the no-blocking rule based on its powers under Section 706 of the Telecommunications Act of 1996, which requires the FCC to accelerate broadband deployment. Matt Wood, policy director of consumer advocacy group Free Press, told Ars that "the slim hope that Section 706 authority could be used to prevent blocking is a tenuous one. It stems from a few paragraphs of speculation in the majority opinion, based on a theory the FCC failed to raise until the oral argument—an argument that drew nothing but scorn from Judge [Laurence] Silberman in his dissent."

The court's majority opinion noted that "if the relevant service that broadband providers furnish is access to their subscribers generally, as opposed to access to their subscribers at the specific minimum speed necessary to satisfy the anti-blocking rules, then these rules, while perhaps establishing a lower limit on the forms that broadband providers’ arrangements with edge providers could take, might nonetheless leave sufficient 'room for individualized bargaining and discrimination in terms' so as not to run afoul of the statutory prohibitions on common carrier treatment."

However, the court said, "We are unable to sustain the commission's action on a ground upon which the agency itself never relied."

"The court basically said that a no blocking rule would probably be OK if the FCC argued it a little bit better," Public Knowledge Senior Staff Attorney John Bergmayer told Ars.

Watch out for “subtle” discrimination

However, Bergmayer agrees that common carriage is the route the FCC should take. "A no-blocking rule is an important thing to have, of course, but the real danger from carriers at the moment isn't outright blocking but more subtle forms of discrimination such as 'fast lanes' and so on. These sorts of protections are what Title II provides better authority for," he said.

Bergmayer said Mozilla's petition presents "a very good argument, and one the FCC should take seriously. It's complementary to our main argument, that consumer broadband access is a telecommunications service. Mozilla's idea could be part of a basket of solutions to the problems that we see in broadband access and competition, as well as interconnection/peering."

Mozilla's petition does not address paid peering agreements like the ones in which Netflix pays Verizon and Comcast for direct connections to the edges of their networks. Like the original net neutrality rules themselves, the petition just covers the "last mile" over which content travels from ISPs to customers.

"These things are certainly related," but "we've structured our petition in such a way to make it grantable by the FCC without resolving questions of interconnection or peering," Riley said.

Mozilla is hoping that the FCC will start a new proceeding based on its petition and ask the public for comment on it. The commission is probably more likely to treat it as part of the overall Open Internet proceeding that's on the May 15 agenda.