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FCC to rewrite Net neutrality rules

The FCC's chairman says the agency won't challenge a federal appeals court decision to throw out its Open Internet rules and will instead take another crack at writing new regulations.

FCC commissioners
The FCC commissioners (left to right): Ajit Pai, Mignon Clyburn, Tom Wheeler (chairman), Jessica Rosenworcel, and Michael O'Rielly. FCC

Federal Communications Commission Chairman Tom Wheeler said he plans on a do-over for Net neutrality rules.

On Wednesday, the chairman laid out a plan for preserving the Open Internet after a federal appeals court struck down the rules last month.

As part of this new strategy, Wheeler said the FCC will not ask the federal appeals court to re-examine its decision in which the rules were thrown out. Instead, the agency will write brand-new rules using a different legal basis that was affirmed by the court's decision.

Last month, the US Court of Appeals for the District of Columbia Circuit threw out the FCC's Open Internet rules in its Verizon v. FCC decision. But the court sided with the FCC in its authority to regulate broadband services. And it affirmed the FCC's justifications for writing the rules. That said, the court did not agree with the FCC's legal reasoning for these rules. And it essentially told the FCC to fix them.

In a statement Wednesday, Wheeler reiterated that the court had invited the FCC to find a different path to preserve a free and open Internet. And he said, he intends "to accept that invitation by proposing rules that will meet the court's test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet service providers manage traffic, and enhancing competition."

He emphasized that the court's decision notes that the FCC has the legal authority to issue enforceable rules of the road to preserve Internet openness as part of Section 706 of the Telecommunications Act of 1996 to encourage broadband deployment and competition. But instead of using an argument based on a legal concept called "common carriage" to justify its rules, the FCC will base its legal argument on authority affirmed by the court in its decision.

"The court recognized the importance of ensuring that so-called edge providers, those that use the network to deliver goods and services, can reach people who use the Internet," he said. "And it upheld the Commission's judgment that Internet freedom encourages broadband investment and that its absence could ultimately inhibit broadband deployment."

Wheeler's decision to rewrite the Open Internet rules means that the agency is not looking to reclassify broadband services as so-called common carriers, a position the White House supports. But Wheeler said that the Commission is still keeping the option of reclassification open.

In the meantime, Wheeler also said the FCC will hold all major Internet service providers to their promise to honor the safeguards of the 2010 Open Internet order. And if providers step out of line, he said, the court's decision gives it more than enough authority to rectify the situation on a case-by-case basis.

"That's the right and responsible thing to do," he said. "And we take them up on their commitment -- which will continue to provide protection for the Open Internet until new rules are put in place."

In an unexpected twist, Wheeler also said that the FCC found additional authority in Judge Laurence Silberman's separate opinion. Specifically, the FCC will look into abolishing legal restrictions imposed by states that prohibit local cities and municipalities from building and offering their own broadband services to consumers.