The FCC will soon share its response to the court’s maiming of network neutrality

Federal Communications Commission Chairman Tom Wheeler plans to share his agency’s plans for handling the uncertain state of the open internet in the coming days. Speaking at an event in Boulder, Colorado Monday, he said that he plans to outline how he plans to proceed in the wake of a court decision that gutted the Open Internet Order that enshrined the concept of network neutrality into law over three years ago.
Network neutrality is a concept that says ISPs can’t discriminate against the traffic flowing over their networks. The concerns are that without some sort of regulatory mandate, ISPs will seek to charge companies for faster delivery of their content over broadband pipes into users’ homes. Under that scenario a company like ESPN might pay for priority access to end users, leaving competitors or upstarts stuck trying to get to the end user over a slower path path.
After years of having a sense that the issue was important — and even having a set of principles written in 2005 that didn’t rise to the status of an actual law — the agency enacted a formal regulation in Dec. 2010. After becoming law it was challenged in court by Verizon, and last month the U.S> Federal Court of Appeals gutted the FCC’s order. It said that the agency had the authority to act, but that it didn’t use the appropriate legal justifications to do so.
Now the debate in policy circles is not only about whether the FCC should act, but also what legal course it should take. Wheeler, in his prepared remarks for his speech, indicated a few worthwhile points that might hint at his plans.
He’s clearly still a fan of everyone getting their content to the end users, although he doesn’t speak to the prioritization question that has people worried:

The court opinion specifically included that the Commission was justified in concluding that an open Internet would further the interest of broadband deployment by enabling the virtuous cycle of innovation that unites the long-term interests of end-users, broadband networks and edge-providers. After all, it explained, when edge-providers are prevented from reaching end-users, demand for both those upstream applications and for network expansion suffer. So, the preservation of an open Internet is within the FCC’s authority.

Unfortunately, he mentions a process; something that having sat through the two-year process from 2008 to 2010 to get the original Order enacted, I am weary of of hearing. Every process opens up an opportunity for the giants of the internet to plot ways to impose barriers for those that come behind. Wheeler knows this, having referenced it in his book on the Civil War, but it remains to be seen if he’s willing to open that door again.
There’s one more line worth recalling from Lincoln’s second address to Congress. “We cannot escape history…” he remarked. “We will be remembered in spite of ourselves.” This is what confronts us and, appropriately, we will be judged by our responses, whether active or passive. I prefer active.