Today Tom Wheeler, Chairman of the Federal Communications Commission, put to rest any doubt that the agency charged with regulating the infrastructure of the Internet plans to do so based on the strongest legal foundation available. It's victory for Net Neutrality advocates, to the chagrin of Internet service providers.

Wheeler wrote that he will propose a plan to use the strongest regulatory framework, known as "Title II" of the Communications Act, to ground and protect Net Neutrality, the principle that ISPs should treat all lawful data traffic equally, which the majority-Democrat FCC will likely vote into effect in its next meeting on February 26.

The fact that Wheeler made the announcement in a guest OpEd for Wired underscores how publicly visible, consequential and contentious the Net Neutrality debate has become over the past year.

Verizon Shot Itself (and All of Its Competitors) In the Foot

The debate started when the FCC essentially lost its authority to regulate ISPs a year ago, due to a victory in court by Verizon that forced the agency back to the drawing board. Its options were either to adopt an even lighter regulatory approach than it already had, under "Section 706" of the Telecommunications Act of 1996, or to completely reclassify ISPs under Title II, which treats ISPs more like strictly-regulated utility companies.

Now it seems that temporary Verizon victory has led to a defeat for the company -- not to mention both the wireless and fixed broadband industries as a whole -- as Wheeler is proposing tighter regulations on ISPs across the board under Title II:

Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC. These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply-for the first time ever-those bright-line rules to mobile broadband. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone's permission.

A Long, Uncertain Road to Net Neutrality's Victory

Wheeler's Title II proposal is technically his third since Verizon's court victory stripped the FCC of its regulatory authority, a period filled with uncertainty over the future of Net Neutrality -- and Chairman Wheeler's true intentions.

The first two proposals attempted to use the "Section 706" framework to enforce rules against ISPs manipulating traffic, while still allowing a qualified form of ISP data prioritization, as long as it wasn't "commercially unreasonable."

After the first draft proposal went public, Wheeler was immediately accused of allowing "fast lanes" on the Internet for those willing to pay, and the public uproar that followed resulted in millions of pro Net Neutrality comments to the FCC website, whose servers actually crashed under the load in the summer. The second "hybrid" proposal attempted to please the concerned public and ISPs, and was quickly rejected by both.

Wheeler -- a former lobbyist for both the cable and wireless industries appointed by President Obama -- frequently had his loyalties questioned during this uncertain period, even though days after the court decision, Wheeler pounded the lectern and passionately made promises to protect an Open Internet at the Minority Media and Telecommunications Council.

In explaining why he chose to go with Title II Net Neutrality protections, Wheeler wrote on Wired about his personal experiences, not as a lobbyist, but as the president of an Internet startup ultimately stymied by the closed nature of cable networks:

I personally learned the importance of open networks the hard way. In the mid-1980s I was president of a startup, NABU: The Home Computer Network. My company was using new technology to deliver high-speed data to home computers over cable television lines. Across town Steve Case was starting what became AOL. NABU was delivering service at the then-blazing speed of 1.5 megabits per second-hundreds of times faster than Case's company ...

But NABU went broke while AOL became very successful ... NABU had to depend on cable television operators granting access to their systems. Steve Case ... had access to an unlimited number of customers nationwide who only had to attach a modem to their phone line to receive his service. The phone network was open whereas the cable networks were closed ....

The phone network's openness did not happen by accident, but by FCC rule.

The Road Ahead

Ironically, Wheeler was careful to emphasize that his proposal would also modernize Title II, dropping regulatory details that ISPs would find absolutely insufferable, including rate regulation, tariffs, and last-mile unbundling -- the last of which is precisely what would have given NABU the network openness it needed to succeed.

Even with those alterations to Title II, telecom companies are guaranteed to file suit against the FCC. AT&T has already previewed its arguments this week, ending its blog post threatening not if but rather "when the FCC has to defend reclassification before an appellate court ... those who oppose efforts at compromise because they assume Title II rests on bullet proof legal theories" will find they were "only deceiving themselves."

Verizon -- apparently unfazed by the fact that its last court victory over the FCC eventually blew up in its face -- is also planning to immediately file suit, according to an insider source cited by VentureBeat.

But the final U-turn in the long road to having a national policy regulating the Internet may not be Wheeler's final decision. As VentureBeat noted, even without the legal challenges, it could take up to a year for the FCC to implement the new rules -- soon after which there will be a new President (and depending on the election results) possibly a new FCC Chairman with opposite priorities.

You can read more details of Wheeler's proposal in this FCC release (pdf).

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