Federal Communications Commission Chairman Tom Wheeler isn’t abandoning his proposal to let ISPs charge Web services for access to Internet “fast lanes.”

But he will ask the public whether Internet service should be reclassified as a common carrier service and whether paid prioritization deals should be banned, The Wall Street Journal reported last night.

Wheeler is pushing for a vote on a Notice of Proposed Rulemaking (NPRM) at the commission's Thursday meeting, but has met resistance from both Democratic and Republican members of the commission.

The NPRM is both a proposal to issue new regulations and an invitation for the public to comment on it. While not abandoning his basic plan, Wheeler will ask for comment on a wider range of topics than he previously intended to.

The Journal reported:

In the new draft, Mr. Wheeler is sticking to the same basic approach but will include language that would make clear that the FCC will scrutinize the deals to make sure that the broadband providers don't unfairly put nonpaying companies' content at a disadvantage, according to an agency official. The official said the draft would also seek comment on whether such agreements, called "paid prioritization," should be banned outright and look to prohibit the big broadband companies, such as Comcast Corp. and AT&T Inc., from doing deals with some content companies on terms that they aren't offering to others. Mr. Wheeler's language will also invite comments on whether broadband Internet service should be considered a public utility, which would subject it to greater regulation. The FCC has so far not reclassified broadband as a utility, and providers have fiercely opposed such a move, saying it would cause innovation and investment to collapse.

Wheeler’s updated proposal would also include an “ombudsman” to advocate on behalf of startups.

Barbara van Schewick and Morgan Weiland of Stanford Law School’s Center for Internet and Society provided a good breakdown of what the latest news means. (van Schewick is a law professor and director of the Center. Weiland is a student fellow at Stanford.)

Wheeler essentially has to allow paid prioritization if he continues his plan to issue rules using the FCC’s authority from Section 706 of the Telecommunications Act, they wrote. But he can issue stronger network neutrality rules if he classifies broadband as a Title II service, treating it essentially as a public utility.

“The Wall Street Journal suggests that in addition to focusing on Section 706 of the Telecommunications Act as a basis for new network neutrality rules, the upcoming Notice of Proposed Rulemaking (NPRM) will seriously explore a second option for adopting network neutrality rules—Title II of the Communications Act," they wrote. "This is a huge step in the right direction from the state of play three weeks ago—keeping reclassification 'on the table' but out of the NPRM. This is what network neutrality proponents (including one of us) have been pushing for, so this is a big success.”

Wheeler is arguing that he can prevent ISPs from forcing Web services that don’t pay for priority into “slow lanes,” even without Title II rules. He also thinks he can ensure that paid prioritization deals don’t “unfairly disadvantage” companies that don’t pay for faster access.

van Schewick and Weiland cast doubt on this, pointing to the federal appeals court decision that overturned the FCC’s previous net neutrality rules.

“[T]he Chairman can’t deliver on this, because requiring ISPs to make the same terms available to everybody is impossible under Section 706,” they wrote. “Forcing carriers to treat like entities alike is the essence of common carrier rules. To be upheld under Section 706, any rules need to 'leave sufficient room for individualized bargaining and discrimination in terms,’ or they will 'run afoul of the statutory prohibitions on common carrier treatment.'"

van Schewick and Weiland concluded that the revision of the NPRM is a "significant step in the right direction, but [there is] still a long way to go."

"If we want to protect the Internet as a platform for free speech, application innovation, and economic growth, we need to ban pay-to-play access fees and adopt a bright-line non-discrimination rule that bans discrimination against applications or classes of applications," they wrote. "Users, entrepreneurs, investors, and public interest groups have already moved the debate in the right direction, getting reclassification off the table and into the NPRM. If we want an open Internet and the rules necessary to preserve it, we have to continue to make our voices heard and work hard to educate and convince the FCC, the White House, and members of Congress. The future of the Internet depends on it."