FCC Net Neutrality Proposal Still Fuzzy

New rules hinge on how commission defines 'commercially reasonable' deals

The Federal Communications Commission did damage control today to try to convince critics that the chairman's net neutrality proposal would not create a "payola Internet,” would not end the Internet as we know it, and would not lead to a host of Internet price increases for consumers.

"This notice decides nothing," an FCC official explained during a call with reporters that followed a tsunami of negative press.

Even after the commission votes May 15 to proceed with the notice of proposed rulemaking, there will still be plenty of unanswered questions, including what would constitute a net neutrality violation. The public will have plenty of time to comment before the FCC finalizes the rules by the end of the year.

Let's take the easy part of chairman Tom Wheeler's proposal first. The FCC proposes to reinstate the 2010 "no blocking" rule for legal content and enhance the 2010 rule that requires ISPs to disclose their network policies and practices.

The biggest question, and what remains unclear in Wheeler's proposal, is how the FCC will determine what kind of fast lane agreements between ISPs and content providers is "commercially reasonable."

"We don't know; the rulemaking will decide it," said an FCC official. "We want a broad public debate before we make those kinds of decisions. We'll ask first and answer later."

So depending on a bunch of details that haven't been written yet, that could mean the FCC might allow deals that give some Internet content priority over another. But no one at the FCC seems to know how that will work, except that each deal will be reviewed on a "case-by-case basis."

In his blog post, Wheeler said the FCC "will propose rules that establish a high bar for what is 'commercially reasonable.'"

"The allegation that it will result in anti-competitive price increases for consumers is also unfounded. That is exactly what the 'commercially reasonable' test will protect against: harm to competition and consumers stemming from abusive market activity," Wheeler wrote.

When asked if that means a deal between Netflix and Comcast that raises prices for consumers would be a violation, the FCC official responded that: "if it limits competition, that's a problem."

OK, are we clear now?