In the NPRM, the Commission proposes to retain the definition and scope of the 2010 net neutrality rules.  Thus, the rules continue to govern broadband Internet access providers but do not include not services such as special access, enterprise services, or Internet interconnection and traffic exchange through peering arrangements;

The Commission proposes that unlike in the 2010 Order, the same rules will now apply to both wireline and wireless Internet access providers;

The transparency rule, which was upheld by the Court, will be enhanced to provide consumers and edge providers with information regarding the nature of any congestion that impacts their use of online services;

To ensure consumers are not blocked in their attempts to reach websites, the Commission proposes rules to ensure “robust, fast and dynamic” Internet service;

The Commission tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate is illegal until proved otherwise;

Companies are permitted to pursue commercially reasonable agreements that would allow them to pay more to prioritize their traffic. The Commission seeks industry comments on how to devise a rigorous, multi-factor screening to analyze whether any such commercial agreement hurts consumers, competition, free expression, or civic engagement as a test of its “reasonableness.”

The Commission proposes to regulate the Internet under section 706, “the advanced services” portion of the 1996 Telecommunications Act. However, the Commission asks whether Title II regulation would be more effective in ensuring an open Internet;

The Commission proposes a multi-faceted process to promptly resolve disputes, including an ombudsperson to act as a watchdog on behalf of consumers, start-ups and small businesses;

The Commission’s proposed rules are controversial because they permit Internet traffic to be prioritized for certain carriers through the use of commercially reasonable agreements.  As expected, the proposal was immediately attacked by net neutrality advocates.  If this provision makes it to the final rules, they will almost certainly appeal it to the courts. Nevertheless, the feeling here is that the Commission would be on stronger legal ground defending individual commercial agreements rather than trying to defend a Title II “common carrier” reclassification for broadband Internet service. The key for the Commission will be using this proceeding to arrive at objective criteria that it could use to evaluate individual agreements.  The Court does not have to agree with the Commission’s approach. It still can find its actions lawful, as long as it believes that the agency’s approach is reasonable.  

While FCC Chairman Wheeler has included a consideration of Title II reclassification as part of the NPRM, it is felt here that he is simply making an effort to placate open Internet advocates, and is not serious. The Chairman is well aware that any attempts at reclassification would bring a long court battle and almost surely bring Republicans in Congress into the fight. Moreover, if the Republicans win back the Senate this November as many political experts believe, reclassification would become even more difficult.

It is clear that FCC Chairman Wheeler has the impossible job of trying to thread the needle between the open Internet advocates, and the parties advocating for no Internet regulation, all the while complying with the DC Circuit and trying to avoid future court appeals. While we will need to review the NPRM before passing a final judgment on his actions, and while it is undoubtedly a minority position, it appears that he taken the first steps to a legally defensible middle ground to preserve the open Internet.