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FCC Chairman: New Internet Rules Will Be ‘Tough’ and ‘Enforceable’

FCC chairman Tom Wheeler once again defended his proposed rules of the road for the Internet on Tuesday, suggesting that they will protect broadband providers from degrading service so they can charge companies for access to “fast lanes” to deliver content.

He wrote in a blog post that “the Internet will remain like it is today, an open pathway.”

His comments come after public internet groups. consumer organizations and some Capitol Hill lawmakers have criticized his proposal as a watered down version of net neutrality, the concept that Internet providers treat all types of traffic equally.

On Tuesday, Sen. Al Franken (D-Minn.) released a letter he sent to Wheeler, arguing that the proposal would “create an online ‘fast lane’ for the highest bidder — shutting out small businesses and increasing costs for consumers.” Some of the coverage has been harsh: “Who is Tom Wheeler and why is he trying to kill the Internet?” read a headline from a post in Gothamist.

Wheeler’s proposal would allow for Internet providers to made deals with content companies for special delivery to consumers, but only if they are “commercially reasonable.”

Criticism has centered on whether such a standard will be enough to prevent the Internet from devolving into a landscape of different tiers, akin to the system of pay-for-play tiers of cable TV.

Wheeler, however, has said that he would set a “high bar” for what is “commercially reasonable.”

In the blog post, he wrote that he believes that includes any activity that harms consumers, like degrading service in order to create a new fast lane, or harms competition, like degrading service to force consumers and content companies to get content in a higher-priced tier, would be shut down under the new rules.

“Providing exclusive, prioritized service to an affiliate is not commercially reasonable,” Wheeler wrote. “For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.”

The FCC will vote on May 15 whether to post the proposed rules for formal public comment, with a goal of having them in place by the end of the year.

“I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation,” he wrote. On Wednesday, he was expected to tell attendees at the National Cable and Telecommunications Assn. convention in Los Angeles that “if someone acts to divide the Internet between the ‘haves’ and ‘have nots,’ we will use every power at our disposal to stop it.”

In January, the D.C. Circuit Court of Appeals overturned significant parts of the FCC’s existing rules, including ones that prohibit Internet providers from blocking content and another that prevents them from “unreasonable” discrimination in the delivery of content.

Wheeler’s challenge has been to come up with new rules that can survive another legal challenge, yet still be robust. His proposal still prohibits ISPs from blocking content, but the anti-discrimination rule has been dropped in favor of the “commercially reasonable” guideline.

Public interest groups have urged Wheeler to pursue a different path: declaring that broadband is a utility, a step that is referred to as Title II common carrier regulation. The D.C. Circuit overturned the FCC’s previous net neutrality rules because they were imposed as if the agency had classified the Internet as a utility, when in fact the FCC had stopped short of doing that.

Nevertheless, Wheeler wrote that he would not “hesitate” to pursue classifying broadband as a utility if “we get to a situation where arrival of the ‘next Google’ or the ‘next Amazon’ is being delayed or deterred.”

Such a move would rattle industry, as well as Republicans on Capitol Hill, as the Internet would fall under a greater set of government regulations and scrutiny. And Wheeler indicated that, while it is still an option, the controversial approach would drag out even further a decade-long effort by the FCC to impose rules of the road for the Internet.

He also suggested that, short of pursuing such an approach, the D.C. Circuit had limited the FCC’s options.

“We are asking for comment on a proposed course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet,” he wrote.

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