Federal Communications Chairman Tom Wheeler released a statement today “setting the record straight” that the federal agency is not abandoning its principles of an open Internet.

Yesterday the FCC revealed it would be disclosing a new set of Open Internet rules in May that, among other things, would allow Internet Service Providers to set up a “fast lane” that prioritizes traffic delivery for any web company willing to pay for the privilege. The fast lane would allow web companies to promise more reliable delivery of their services to consumers, but non-paying companies could see their Internet traffic delivery degraded as a result. Also, there’s some speculation among critics that the fees companies will pay to use this “fast lane” will get passed on to consumers.

“The allegation that it will result in anti-competitive price increases for consumers is also unfounded,” Wheeler wrote in a blog post today. “That is exactly what the ‘commercially unreasonable’ test will protect against: harm to competition and consumers stemming from abusive market activity.”

Wheeler said the commission is currently reviewing the proposed new Open Internet rules, which reinstate concepts that were initially adopted by the FCC back in 2010, while adhering to the federal appeals court decision earlier this year that effectively rendered net neutrality useless.

Wheeler said he’d like the FCC to have a new set of “enforceable rules” that allow it to step in if an ISP does something that hurts competition or negatively impacts consumers as a result of anti-competitive behaviors. The FCC will be able to identify when ISPs are stepping out of line because, supposedly, they will be completely transparent in how they manage Internet traffic delivery over networks.

At issue is the matter of how to determine and identify what sort of behaviors from ISPs are deemed “commercially reasonable.” Right now it seems that setting up an Internet fast lane is not an unreasonable behavior by the FCC’s standards, but of course we won’t know for sure until the new rules have been submitted.

Here’s Wheeler’s full statement:

“There has been a great deal of misinformation that has recently surfaced regarding the draft Open Internet Notice of Proposed Rulemaking that we will today circulate to the Commission.

The Notice proposes the reinstatement of the Open Internet concepts adopted by the Commission in 2010 and subsequently remanded by the D.C. Circuit. The Notice does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users established by the 2010 Rule. The Notice does follow the roadmap established by the Court as to how to enforce rules of the road that protect an Open Internet and asks for further comments on the approach.

It is my intention to conclude this proceeding and have enforceable rules by the end of the year. To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted.

Incorrect accounts have reported that the earlier policies of the Commission have been abandoned. Two points are relevant here:

  1. The Court of Appeals made it clear that the FCC could stop harmful conduct if it were found to not be “commercially reasonable.” Acting within the constraints of the Court’s decision, the Notice will propose rules that establish a high bar for what is “commercially reasonable.” In addition, the Notice will seek ideas on other approaches to achieve this important goal consistent with the Court’s decision. The Notice will also observe that the Commission believes it has the authority under Supreme Court precedent to identify behavior that is flatly illegal.
  2. It should be noted that even Title II regulation (which many have sought and which remains a clear alternative) only bans “unjust and unreasonable discrimination.”

The allegation that it will result in anti-competitive price increases for consumers is also unfounded. That is exactly what the “commercially unreasonable” test will protect against: harm to competition and consumers stemming from abusive market activity.

To be clear, this is what the Notice will propose:

  1. That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
  2. That no legal content may be blocked; and
  3. That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

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