Eager to preserve the Internet's openness but not to be rebuked again by the courts, the
The Internet is no egalitarian playground. Companies with deep pockets, such as
To preserve that status quo, the FCC adopted rules in 2010 that banned ISPs from blocking legal content (a rival's online phone service, for example) or unreasonably discriminating against any site or service's traffic. These rules were thrown out on appeal on the grounds that the commission had exceeded its authority. Nevertheless, the District of Columbia Court of Appeals suggested that the commission could adopt less prescriptive rules to stop ISPs from blocking sites or discriminating in commercially unreasonable ways.
That's what FCC Chairman Tom Wheeler has called on the commission to do. His proposal, which the commission is expected to put out for public comment next month, would set a clear ban on blocking legal sites but a fuzzier restriction on prioritizing traffic. The commission would judge deals by ISPs to give sites preferential treatment based on their effect on consumers, competition, innovation, investment and free expression, among other factors. But the new rule would effectively shift the FCC's default position from opposing prioritization with exceptions to allowing it with conditions.