FCC Chairman Tom Wheeler today said the commission will take another shot at preventing abusive practices by ISPs after the commission's Open Internet Order was vacated Tuesday by the US Court of Appeals for the District of Columbia Circuit.

The court struck down the order's ban on traffic blocking and discrimination by Internet service providers because the FCC had not designated ISPs as common carriers. If Internet service providers were treated as common carriers, they could be subjected to stricter regulations, similar to those applied to phone service, which ensure that everyone's calls must go through and that all calls are treated equally. Verizon, which wants to charge content providers for prioritized access to its network, claimed that the FCC erred by imposing common carriage regulations on companies that are not considered common carriers. Verizon sued and won.

The FCC has the authority to reclassify ISPs as common carriers, but corporate and political opposition would make such a change difficult. Wheeler has not given any indication that he wants to reclassify ISPs, but he pointed to a bit of good news for the FCC in the court ruling.

Despite vacating the anti-blocking and anti-discrimination rules, the court said the FCC has general authority "to promulgate rules governing broadband providers’ treatment of Internet traffic." The court remanded the case back to the commission, perhaps inviting it to rewrite the Open Internet Order in a way that puts it on a solid legal footing.

"The court invited the commission to act, and I intend to accept that invitation," Wheeler said today at a conference hosted by the Minority Media & Telecom Council. (C-Span has video of the speech.) "Using our authority, we will readdress the concepts in the Open Internet Order, as the court invited, to encourage growth and innovation and enforce against abuse."

Wheeler didn't detail any specific ways in which the FCC might prevent abuse. But he said he is encouraged by "expressions from many Internet service providers to the effect that they will continue to honor the Open Internet Order's concepts even though they may have been remanded to the commission."

That was likely a reference to a statement made by National Cable & Telecommunications Association (NCTA) CEO (and former FCC chairman) Michael Powell, who said, "The cable industry has always made it clear that it does not—and will not—block our customers' ability to access lawful Internet content, applications, or services." Powell led the FCC from 2001 to 2005 and made the decision not to classify broadband providers as common carriers.

Additionally, Comcast noted, "[W]e agreed in the NBCUniversal Transaction Order to abide by the Open Internet rules for seven years even if the rules were modified by the courts. We remain comfortable with that commitment because we have not—and will not—block our customers’ ability to access lawful Internet content, applications, or services."

The NCTA statement is just a pledge not to block traffic. It doesn't say anything about intentionally slowing certain traffic down, and the NCTA supported pay-for-play arrangements in which ISPs charge content providers for faster access to the network. The FCC, under previous chairman Julius Genachowski, attempted to ban such deals because they would disadvantage smaller content providers that can't afford to pay the fees. Pay-for-play deals are already being implemented in the cellular market by AT&T, which is charging content providers for the right to bypass customer data caps.

Wheeler called the ISP pledges not to block traffic "the right and responsible thing to do" and said the FCC will "take them up on their commitment." But that isn't all the FCC will do, he said.

"At the same time, we accept the court's invitation to revisit the structure of the rules that it vacated," he said. "The great revolution in the Internet is how it empowers individuals to both consume and create. It's the kind of opportunity that we're discussing here this morning, and to do so requires an accessible and open Internet, and we will fight to preserve that capability."

Wheeler had said immediately after the court ruling that the FCC would consider all options, including appeal. He followed that up with an extremely vague blog post. Today's comments are the most specific he's made since the ruling, indicating that he might prefer to rewrite the Open Internet Order to fit the court's order rather than appealing to the Supreme Court.

But a new Open Internet Order wouldn't impose an outright ban on blocking or traffic degradation, barring the unlikelihood of the FCC reclassifying broadband service. It's not even clear Wheeler wants to prevent the kind of pay-for-play deals Verizon wants to implement. Wheeler has said he wants to let "two-sided markets," in which ISPs charge fees to both home Internet users and content companies, evolve and then regulate if things go wrong. He's also said that AT&T's new charges for content providers are "not the sort of thing that should be prohibited out of hand" because AT&T's sponsored data may enable "increased competition and increased efficiency."

Besides rewriting the Open Internet Order, it's possible Wheeler could seek new voluntary agreements with ISPs as he did when he cajoled wireless carriers into promising to unlock out-of-contract phones. Whatever happens, the FCC's attempt to maintain a level playing field on the Internet will likely end up a watered-down version of its former self.

Consumer advocacy group Free Press argued today that the only good option left is reclassifying broadband as a common carrier service. Without doing so, the FCC might be able to force ISPs to disclose the fact that they are blocking services, but it couldn't actually prevent the blocking, Free Press wrote.

"In other words, the court is allowing the FCC to do anything except stop phone and cable companies from discriminating or blocking," Free Press wrote. "That’s right: They can do anything except protect Net Neutrality."