The head of the Federal Communications Commission is revising proposed rules for regulating broadband Internet, including offering assurances that the agency won't allow companies to segregate Web traffic into fast and slow lanes.
The new language by FCC Chairman Tom Wheeler to be circulated as early as Monday is an attempt to address criticism of his proposal unveiled last month that would ban broadband providers from blocking or slowing down websites but allow them to strike deals in which content companies could pay them for faster delivery of Web content to customers.
The plan has drawn criticism from a wide range of players in the technology world, including Google Inc.,
Netflix Inc.
NFLX +2.14% and dozens of prominent tech investors, who say that such deals will inherently segregate the Internet into fast and slow lanes.
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. CMCSA -0.20% and AT&T Inc., T +0.11% 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.
The redrafting reflects the challenge Mr. Wheeler faces as he pushes forward with a vote Thursday on the plan that would then open the proposal to public comment. The chairman, agency officials said, is trying to address the backlash to his initial proposal while sticking to what he thinks will be the fastest course of action.
"The new draft clearly reflects the public input the commission has received," one of the FCC officials said, noting that the proposal seeks specific comment on the benefits of reclassifying broadband as a utility.
"The draft is explicit that the goal is to find the best approach to ensure the Internet remains open and prevent any practices that threaten it."
But Mr. Wheeler's modifications aren't likely to mollify critics of the plan, especially those who are calling for a purely neutral Internet in which all traffic is treated the same.
Last week two of the five FCC commissioners, Democrat Jessica Rosenworcel and Republican Ajit Pai, called for Mr. Wheeler to delay Thursday's vote, which would open the proposal to public comment, in light of the backlash.
Perhaps the boldest change is Mr. Wheeler's willingness to broach the topic of reclassification. Those who argue for it say that it is the surest way to achieve pure "net neutrality," the notion that the Internet's pipes should be equally open to all. Without it, they say, the FCC's authority isn't strong enough to prevent the paid deals.
The FCC also plans to seek comment on two other net neutrality proposals offered by the
Mozilla Foundation and
Columbia Law Professor Tim Wu, who coined the term "net neutrality."
Telecom lawyers believe Mr. Wheeler is using the threat of reclassification to discourage broadband providers from attempting arrangements that would run afoul of his rules. However, the broadband providers have successfully challenged the FCC's last two attempts at enforcing net neutrality in court, most recently in January.
Reclassification would probably also result in a court fight, leaving the status quo until it is settled. Mr. Wheeler argues that there are no rules to prevent broadband providers from blocking or slowing down websites under the current regulatory framework. His strategy is to allow the deals while relying on the FCC's regulatory hand to make sure they are fair.
"I won't allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service," Mr. Wheeler wrote to Google and other companies.
Net-neutrality advocates worry that Mr. Wheeler's approach may work while he remains in office, but a different commission could let enforcement wither. To assuage such concerns, Mr. Wheeler's latest draft rules will include new language on protecting consumers and innovators such as Web companies that rely on the broadband pipe. One possibility is approving proposed language that requires broadband providers to give all users access to "fast and robust service." However, such wording could prompt another legal challenge.
Mr. Wheeler's updated draft would also propose a new ombudsman position with "significant enforcement authority" to advocate on behalf of startups, according to one of the officials. The goal would be to ensure all parties have access to the FCC's process for resolving disputes.
Mr. Wheeler's insistence that his strategy would preserve an open Internet, without previously offering much insight into how, has been a source of disquiet within his agency. Of the five-member commission, both Republicans are against any form of net neutrality rules, which they view as unnecessary. Commission observers will be watching the reaction of the two Democrats, Ms. Rosenworcel and Mignon Clyburn, to Mr. Wheeler's new language.
"There is a wide feeling on the eighth floor that this is a debacle and I think people would like to see a change of course," said another FCC official. "We may not agree on the course, but we agree the road we're on is to disaster."
