The Federal Communications Commission will release a proposal soon on a new set of Open Internet rules to replace the net neutrality-friendly rules recently struck down by a federal court. But early leaks suggest the new replacement system is not so net neutrality-friendly, sparking a war of words between FCC Chairman Tom Wheeler and the tech community.

In January, a U.S. Appeals Court struck down the FCC's ability to enforce its 2010 "Open Internet" rules, which barred internet service providers (ISPs) from discriminating against any legal internet traffic or favoring sites and services that pay extra for faster delivery to customers. The 2010 rules basically enforced the concept of net neutrality, a longstanding principle of the internet that "all traffic should be treated equally." While the FCC promised to resurrect Open Internet in a net neutrality-friendly way, a report from The Wall Street Journal late Wednesday says differently.

FCC Proposal: "Commercially Reasonable" Preferential Treatment

According to the WSJ, based on a leak from the FCC, the agency's proposal would prevent ISPs from blocking or discriminating against specific websites, but would allow internet providers to give some sources of traffic preferential treatment -- a so-called "fast lane" for specific services and sites.

The veracity of this leak was bolstered by The Washington Post's own anonymous FCC official on Wednesday: "Broadband providers would be required to offer a baseline level of service to their subscribers, along with the ability to enter into individual negotiations with content providers," said the anonymous FCC official. "In all instances, broadband providers would need to act in a commercially reasonable manner subject to review on a case-by-case basis."

A "commercially reasonable" version of preferential treatment still breaks the definition of net neutrality. This means that the new FCC Open Internet rules, while possibly encouraging innovation -- and being of short-term benefit to general consumers, who probably wouldn't care if basic sites load slower, as long as their Netflix and Skype work flawlessly -- would still enshrine in law a concept that is the opposite of net neutrality.

Many, many internet democracy advocates, organizations, and editorial writers are upset about this.

Tom Wheeler Strikes Back

FCC Chairman Tom Wheeler responded to the web's whiplash with a statement saying the news reports were "flat out wrong" about the FCC's proposal, saying there was no "turnaround in policy." Later in a blog post on Thursday, "Setting the Record Straight on the FCC's Open Internet Rules," he said definition of the "commercially reasonable" provision, as defined by the appeals court and the FCC's new proposal, would be established as a "high bar."

He also emphasized the proposal will emphasize that "all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network," that "no legal content may be blocked," and that part of the definition of "commercially unreasonable" would include favoring traffic from an affiliated entity.

Problems Still Exist

Despite Wheeler's clarification, there are some big problems in what he's advocating as the new Open Internet rules. First, the rules against blocking some content and against favoring traffic from an affiliated entity already exist. These are basic anti-trust rules, which apply to online commercial business as much as they do elsewhere.

Second, the FCC is said to enforce the nondiscrimination rules on a "case-by-case" basis. This isn't from the leak -- Wheeler himself has said this before. In the wild, wide, and expanding realm of the internet, a regulatory agency with less than 2,000 employees managing the nation's multi-tiered internet infrastructure on a case-by-case basis is hard to believe possible.

As the New York Times' media expert David Carr said in an interview last month with WNYC, "As a reporter, I have trouble keeping up with this stuff day to day, and it's hard to think of any regulatory apparatus that would be flexible and fungible enough to keep up."

Finally, there's the problem of precedent. Once any sort of preferential treatment online is enshrined in law -- no matter how high the bar is set -- you've got precedent for further erosion of net neutrality principles.

The FCC will release its proposal later this week for public comment, so we'll have all the details soon. Expect a Latin Post Tech analysis forthcoming, as well as comments from Latino media advocacy groups.

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