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Wheeler Clarifies, Toughens Draft Language

FCC Chairman Tom Wheeler has strengthened his draft of network neutrality rules to make clear what he has been saying for several weeks, and what he appeared to indicate from the outset of his effort to restore them--Title II is an option, and some paid priority may not be.

In the new version, according to a source familiar with it, the chairman says the FCC is considering both using Sec. 706 authority and Title II authority to buttress the rules. He has said all along that both were on the table, but the language reportedly raises Title II's profile, an effort to say "we heard you" to the chorus of network neutrality backers seeking a Title II classification.

The item still says a Sec. 706 framework is the starting point for establishing the new rules, which would prevent blocking and allow only commercially reasonable discrimination/differentiation on a case-by-case basis.

It will also say there is a rebuttable presumption against paid priority, with the practice presumed to be unlawful unless it can be proved not to be so. The item will also ask whether the practice should be banned altogether.

It was unclear at press time whether the item had been circulated, but neither of the Republicans had seen it. A source confirmed that Commissioner Michael O'Rielly's office had not seen it, and Commissioner Ajit Pai's office was publicly unhappy with its lack of access.

“When it comes to the Chairman's latest net neutrality proposal, the Democratic Commissioners are in the fast lane and the Republican Commissioners apparently are being throttled," said Matthew Berry, chief of staff for Commissioner Ajit Pai, in an e-mail. "The Chairman's Office should end this discrimination and stop blocking the Republican Commissioners from seeing the Chairman's latest plan.”

An FCC spokesperson was checking on whether the draft revisions had been circulated yet and, if so, to whom.