FCC’s Tom Wheeler Says His Proposal Will Protect Net Neutrality. Here’s Why It Won’t.

[Commentary] Press reports indicate that Federal Communications Commission Chairman Tom Wheeler will propose new Open Internet rules that would allow Internet service providers to implement so-called paid-priority schemes.

These would allow Internet service providers (ISPs) to charge extra fees to content companies to guarantee their content reaches end-users ahead of those that don’t pay. The proposal would also allow ISPs to favor their own content. Chairman Wheeler insists his proposal would “restore the concepts of Net Neutrality.”

He stated that the court “made it clear that the FCC could stop harmful conduct if it were found to not be ‘commercially reasonable.’ Acting within the constraints of the Court’s decision, the Notice will propose rules that establish a high bar for what is ‘commercially reasonable.’” But the judges were pretty clear here: Unless the FCC reclassifies ISPs as common carriers, it can’t impose any rules that stop ISPs from discriminating against content or favoring their own content.

Chairman Wheeler’s post ends with a promise that his rules will not permit ISPs to favor their own content. But nowhere in the legal history is there any suggestion that such moves would run afoul of the “commercially reasonable” standard. What’s more commercially reasonable than a company looking out for its own best interests? Nowhere in his post does Chairman Wheeler suggest that his rules will bar paid prioritization.

And unless the FCC reclassifies ISPs as common carriers, it can’t legally prohibit this practice. So instead of fighting for real Net Neutrality, the FCC instead has chosen to bless online discrimination.