The FCC has announced its intention to pursue a new version of the Open Internet order that was struck down by a judge last month. In a statement, agency chair Tom Wheeler says that he will begin taking public input on an updated set of net neutrality rules. The FCC will not pursue an appeal in the case it lost against Verizon in January, opting instead to use the authority that the court granted in its decision. "Preserving the internet as an open platform for innovation and expression while providing certainty and predictability in the marketplace is an important responsibility of this agency," says Wheeler.

The FCC won't appeal in its case against Verizon

The FCC's original case relied on a piecemeal set of arguments that Judge David Tatel found unconvincing. Now, it's taking the shard of hope he gave it and digging deep. The court said the FCC could regulate the internet under Section 706, which lets it make rules to promote broadband deployment, and Wheeler will be proceeding with this plan. In principle, the new framework sound very much like the old one: wired broadband providers shouldn't be able to block lawful sites and services on their networks, they shouldn't discriminate against content, and they should make their network management plans public. According to a senior FCC official, wireless broadband providers will likely still be given looser rules. But the commission is just now considering proposals, and we don't know exactly what we'll end up with.

The original rules failed because they were too much like those for "common carrier" services like phone companies, which can be regulated more strictly. As he made this decision, though, Tatel said that internet providers did have strong incentives to abuse their power and unfairly favor their own services — and that net neutrality rules could therefore promote broadband adoption and competition. Wheeler has said over and over that he's going to "accept that invitation," but it's still a relatively limited one, and the commission will have to work around that. One of major sticking points is non-discrimination, a contentious rule that was explicitly struck down. Wheeler suggests that companies that violate non-discrimination rules could be evaluated on a case-by-case basis rather than outright censured. An FCC official said that doing this could avoid making a bright-line test that was too much like a common carrier rule, shoehorning it into Section 706. But even a milquetoast set of rules could still end up going on trial again.

There's another option: the FCC could just define broadband providers as common carriers. An earlier decision to classify them differently is what doomed the FCC's old policy, and the change would be a surefire way to make sure any new net neutrality rules would stand up. It would also be political poison. Wheeler has said he's leaving this possibility open, but it's clearly not one that the FCC wants to resort to right now. President Barack Obama has all but said the same in his support of the FCC. Nonetheless, the rules have yet to be actually written, so it's not clear that the FCC will be able to bend broadband competition rules to fit its needs. If it can't, reclassification is effectively the only way forward.

"It appears that the FCC is tilting at windmills here."

At least two other commissioners have come out against Wheeler's decision. "Today's announcement reminds me of the movie Groundhog Day," writes Commissioner Ajit Pai. "In the wake of a court defeat, an FCC Chairman floats a plan for rules regulating internet service providers' network management practices instead of seeking guidance from Congress." He's referring to the Comcast v. FCC net neutrality case that ended in a loss for the agency just before a new set of rules were introduced. "Net neutrality has always been a solution in search of a problem."

Commissioner Mike O'Rielly, meanwhile, said he was "deeply concerned" by the announcement. "It appears that the FCC is tilting at windmills here. Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice." Free Press, an organization that has been deeply involved in the net neutrality debate, critiqued Wheeler for attempting to proceed without larger policy changes. "Pretending the FCC has authority won't actually help Internet users when websites are being blocked or services are being slowed down," says president and CEO Craig Aaron in a statement. "If the agency really wants to stop censorship, discrimination and website blocking, it must reclassify broadband as a telecommunications service."

In addition to this rulemaking, Wheeler says he will continue to look for other ways to promote broadband deployment, including encouraging cities to develop their own broadband networks to compete with telecoms. He will also attempt to hold internet service providers to the statements they've made in support of an open internet, an issue that became more pressing when Verizon denied accusations that it throttled Netflix in the wake of the decision.