Federal Communications Commission Chairman Tom Wheeler indicated this week that he still intends to enforce net neutrality rules after a three-judge panel struck down the means the FCC was using to enforce it. Those rules required that internet service providers treat all web traffic equally. The court didn't strike down the concept of that rule, just how the FCC had chosen to do it, and hinted at more than one way that the FCC could change its enforcement. Wheeler, apparently, is leaning toward a case-by-case approach.
"The court took a look at the anti-discrimination and non-blocking structure," Wheeler said at a Washington conference Tuesday, "not the concepts. ... I interpret what the court did as an invitation to us, and I intend to accept that invitation." [...]That leaves ISPs in the position of playing the odds, essentially, over whether or not the FCC is going to go after them for any given violation. That's certainly not as strong as one of the other options the court made clear was available to the FCC: reclassifying ISPs to make broadband companies fit under the same classification as other telecommunications companies the FCC regulates without question.
While the agency can't lay down a blanket rule prohibiting ISPs from abusing their power, it could go after offending companies on a case-by-case basis. This is exactly what Wheeler has in mind.
"We are not reticent to say, 'Excuse me, that's anti-competitive. Excuse me, that's self dealing. Excuse me, this is consumer abuse,'" said Wheeler on Tuesday. "I'm not smart enough to know what comes next [in innovation]. But I do think we are capable of saying, 'That's not right.' And there's no hesitation to do that."
As EFF persuasively argues, reclassification isn't the be-all and end-all solution in part because the FCC can be somewhat arbitrary from year to year in making and enforcing rules. What's really needed is actual legislation. But legislation isn't happening any time soon (because face it, this Congress isn't doing much of anything any time soon) and will be a huge pull for activists, given the industry's influence in Congress. At this point, the best hope for net neutrality is still the FCC reclassifying ISPs and using its blanket authority to enforce it.