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Mark your calendars: FCC to hold Net neutrality vote on Feb. 26

FCC Chairman Tom Wheeler announces the date to a CES crowd, indicating that the proposal on the table will include reclassifying broadband as a utility.

The Federal Communications Commission will vote on a proposal to reinstate Net neutrality rules at an open commission meeting February 26, Chairman Tom Wheeler said during a discussion at the Consumer Electronics Show in Las Vegas on Wednesday.

FCC Chairman Tom Wheeler confirmed Wednesdaay that his agency will vote on new Net neutrality rules in February. In this 2014 photo, he addressed broadcasters at the NAB trade show. CNET/Marguerite Reardon

Wheeler said the new proposal will be circulated among the commissioners starting February 5 and the full commission will vote on it three weeks later. He didn't offer specifics of what will be in the proposal, but he hinted that the new proposal will reclassify broadband traffic, in part, as a Title II utility, which some supporters believe will put the new rules on stronger legal footing.

President Barack Obama urged the FCC to reclassify Internet traffic under Title II of the Communications Act in November. Wheeler had previously not stated whether he would support the president's suggestion.

The issue of how broadband traffic should be classified has been a hot button issue in the debate over the new Net neutrality rules. Large broadband providers, such as AT&T and Verizon, say that reclassifying broadband as a utility will stifle innovation by imposing antiquated telecommunications regulation on an industry that they say has grown well without government regulation. But some consumer advocates and Internet companies, such as Netflix, say reclassifying broadband services is the only way to ensure that the new Net neutrality rules will stand up to future court challenges.

Net neutrality is the concept that all online traffic should be treated equally by broadband providers with no restrictions or preferential treatment given to certain types of traffic. The FCC has been working since May on drafting new rules that will replace rules that had been adopted in 2010. The 2010 Open Internet regulation was struck down in a federal court early last year.

Wheeler made it clear during his discussion with the Consumer Electronics Association head Gary Shapiro that the approach that the FCC will take with its proposal will not apply all of the restrictions under Title II meant for traditional telephony networks to broadband. Instead, he said the proposed rules would forbear or exclude broadband from adhering to provisions of the Communications Act that don't make sense for a broadband service.

He said the ultimate goal of doing this is to make sure that the agency can provide a legal standing for rules that will prohibit broadband providers from blocking content, throttling traffic, or offering a paid prioritization service, as well as ensuring that the way in which Internet service providers manage their wares is transparent to customers. At the same time, he said he wants to ensure that broadband providers are incentivized to continue investing in their networks.

He explained that such exclusions to existing regulation have been applied with success in other industries. He pointed to the wireless telephony industry, which like the wired telephony market, is regulated under Title II of the Communications Act. But he said the application of the Title II regulation as it pertains to wireless service does not include all the same restrictions that apply to the traditional phone network.

"The wireless industry has been wildly successful as a Title II regulated industry," he said. "So there is a way to do it right."

Wheeler stopped short of calling the broadband industry's fears that such an approach would jeopardize investment unfounded. Instead, he emphasized that even with the president backing reclassification, the FCC has seen a record turnout for its current wireless spectrum auction.

"Even after the president said what he said about Title II, we have still had record bidding for spectrum from ISPs," he said. "And we continue to see announcements of new gigabit broadband plans."

Representatives for the wireless industry sharply disagreed with Wheeler regarding the application of Title II restrictions on broadband.

Meredith Attwell Baker, president and CEO, CTIA-The Wireless Association, is one such opponent.

"Comparisons to the regulatory framework for mobile voice are misplaced and irrelevant," she said in a statement. "Congress created a regulatory regime for mobile voice under Section 332 and Title II. Congress also created a separate regulatory regime - -explicitly outside Title II -- for other services like mobile broadband. The FCC cannot now rewrite Congress's intent to rewrite the Act or rewrite history."

But Sen. Edward J. Markey (D-Mass.), author of the first Net neutrality bill to be introduced in the Senate, commended Wheeler for taking the Title II route.

"I am pleased to hear that Chairman Wheeler is being guided by Title II on the FCC's path toward new open Internet rules," Markey said in a statement. "The best way to prevent the broadband behemoths from erecting online tollbooths and undermining the openness of the Internet is to reclassify broadband under Title II."

Wheeler's initial proposal, which some claim suggested that it would allow for broadband companies to offer priority access to to the Internet, was sharply criticized. Wheeler has since said that he has no intention of allowing broadband providers to create a two-tiered Internet of "haves and have nots."

Following an initial report by The Washington Post, an FCC spokesperson confirmed earlier this montht hat the long-awaited vote on the new rules would be coming in February.

Updated 4:30 pm PT: This story was updated with additional information from Wheeler's discussion at CES.

This story is part of a CNET special report looking at the challenges of Net neutrality, and what rules -- if any -- are needed to fuel innovation and protect US consumers.