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FCC Chairman Circulates Net Neutrality Item

FCC Chairman Julius Genachowski late Tuesday night circulated a network neutrality item to the other commissioners for a planned vote at the Dec. 21 meeting, according to a source close to one of those commissioners.

That was confirmed by an agenda notice issued by the FCC shortly after midnight. "An Order adopting basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression," read the agenda notice. "These rules would protect consumers' and innovators' right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks."

It has been over a year since the chairman first introduced his proposed rulemaking on network neutrality, but the federal court decision striking down the FCC smackdown of Comcast for blocking BitTorrent file uploads delayed any action while the FCC decided how to better establish its Internet access oversight authority.

The source could not access the item remotely (from home at close to midnight) but it is expected to be similar to a compromise net neutrality legislative proposal hammered out with stakeholders by Energy & Commerce Committee Chairman Henry Waxman (D-Calif.).

It is expected to codify and expand the FCC's network neutrality guidelines, which the chairman has said was necessary to preserve an open Internet and implement the National Broadband Plan, but do so under the FCC's existing Title I definition of Internet access rather than the Title II reclassification the chairman initially proposed, then apparently disposed of when it became obvious it was a "nuclear option," opposed not only by industry but virtually all House Republicans and more than two dozen Democrats.

According to sources inside and outside the FCC, the National Cable & Telecommunications Association, AT&T, and Google are among the stakeholders whose support the chairman has lined up for the item. NCTA has argued that the FCC does not need to step in, period, but also was reportedly on board with the Waxman compromise as preferable to the "nuclear option" of Title II, which appeared to bring price regulation into the equation.

NCTA was also concerned that while the chairman pledged to forbear from all but a handful of Title II regs, there was no guarantee of what a future FCC would do.

The chairman got some Hill backing for the proposal Tuesday when Senators John Kerry (D-Mass.), Byron Dorgan (D-N.D.) and Ron Wyden (D-Ore.) wrote him saying he was on the right track with a compromise proposal. While not explicitly supporting a Title I approach, which was yet to be either announced or confirmed by the chairman, the legislators said: "We understand that there are some who would have you go further and some that would have you do nothing. But we believe you are headed toward a principled center and we support that effort."

The chairman just made it under the wire to give the other commissioners the customary three weeks to vet the item and make suggested edits, sending out the agenda almost at the stroke of midnight.

Commissioner reaction was not expected until Wednesday morning.

The night owls over at Public Knowledge were ready with a reaction, however. "We commend the Federal Communications Commission for tentatively putting open Internet rules on the agenda for the Dec. 21 Commission meeting and for, we expect, circulating a draft order. As Comcast's recent actions have shown, such rules are urgently needed," said PK President Gigi Sohn. "Public Knowledge looks forward to working with the Commission to strengthen the order so that consumers and the vitality of the Internet are protected."

She suggested somewhat hopefully that Title II reclassification was not out of the picture.

"The FCC has not circulated an order with regard to the chairman's ‘Third Way' proposal which would have reversed the Commission's 2002 decision to deregulate broadband access service." she added. "The ‘Third Way' would establish a firmer legal foundation, not only for open Internet rules but also for broadband policy generally. We urge the Commission to conclude the proceeding and adopt the ‘Third Way' proposal at a future meeting."