It seems Tom Wheeler can't catch a break: His latest attempt to charm both sides of the contentious Net Neutrality debate has seemingly pleased no one. 

The Federal Communications Commission, of which Wheeler is the Chairman, lost its authority to enforce its "Open Internet" rules earlier this year, after a court struck down the FCC's regulatory framework and sent Wheeler back to the drawing board.

Then, the new proposed Open Internet rules angered Net Neutrality advocates by allowing "paid prioritization" of traffic by Internet service providers (ISPs). That resulted in an uprising on the Internet and a record number of (mostly negative) comments.

So, Wheeler went back to the drawing board again.

Late last week, a new proposal leaked from the agency to The New York Times and Wall Street Journal. This new framework attempts to appease both the biggest industry players and the skeptical public, while retaining some flexibility for future technological advancements, by taking a "hybrid" approach.

It's already being rejected by both sides, sight unseen.

What We Know About the "Hybrid" Approach

From what's been leaked, it appears the new framework seeks to reestablish the FCC's authority over transactions between ISPs, content providers, and other infrastructure in the gullyworks of Internet, while keeping a light touch on the "last mile" connection between ISPs and consumers.

To do this, the FCC would divide "Internet traffic" as a whole into two distinct entities with different definitions: "Wholesale" transactions, those connections between servers, hubs, and ISPs on the backend of the Internet; and "retail" transactions, which only applies to data traffic between ISPs and consumers.

The wholesale, backend part would be governed by Title II of the Communications Act -- which, to oversimplify for the sake of not boring you with a dissertation in 20th century telecommunications law, is the strongest tool in the FCC's regulatory arsenal.

In practice, implementing Title II would mean the backbone of the Internet -- like agreements between Netflix and Comcast to create better connections between their networks -- would be strongly regulated, almost (but not quite!) as if Comcast were a utility company. In this regulatory realm, the FCC could prevent unfair deals, uncompetitive behavior, and discrimination of legal traffic.

But consumer Internet service (the "front end" or "last mile") would be governed under a lighter approach, using Section 706 of the Telecommunications Act of 1996. Again, to simplify it, this means ISPs wouldn't be burdened by a heavy regulatory hand, ostensibly allowing for innovations in services, and investment in building out broadband.

It would also leave the FCC the regulatory flexibility to allow for special arrangements (as long as they're not commercially unreasonable) to deliver unique Internet services that may not even exist yet.

The best of both worlds, right?

Everybody Hates "Hybrid" Already 


Although Netflix is probably happy about being protected from what it sees as ISPs bullying them to pay for better connections on the backend, industry and public representatives on both sides of the Net Neutrality debate are unhappy with Wheeler's new proposal -- which is being likened to a Solomon-esque "splitting the baby down the middle" non-solution.

On the consumer advocate side, groups like Free Press are calling the hybrid approach a "Frankenstein proposal" and a "flimsy fabrication" that will "only serve to squander the political support of millions and millions of Americans" who rallied for Net Neutrality and the full application of the stronger Title II-based regulation on ISPs.

Another group, the Electronic Frontier Foundation, published a blog post titled "No Compromise," arguing that the hybrid approach is confusing, legally messy, and "will not survive the inevitable legal challenge."

Given that the FCC has tried to regulate ISPs under shaky authority framework twice before, and both times a court struck it down, it isn't hard to imagine.

In fact, on the industry side, threats of a legal challenge are already being made. Verizon recently sent a letter to the FCC hinting that it would go to court if the FCC tried implementing any part of Title II. (Verizon was behind the last challenge that got the FCC into this mess in the first place.)

According to VentureBeat, broadband trade group USTelecom's Senior VP Jonathan Banks has announced plans for a similar legal challenge.

But We Still Don't Know Any Details

You might give Wheeler some sympathy if you consider that his "hybrid" approach hasn't even been seen by the other commissioners yet, much less representatives on either side of the Net Neutrality debate. And especially considering it's not an all-or-nothing proposal from either perspective, the details matter.

Now that the midterm elections are over, it's much more likely the FCC will pick up speed in its deliberations, but insiders are saying there might not be any official proposal to look at until as late as the first quarter of next year.

Until such time, an open mind mixed with plenty of skepticism might be the best position for thoughtful interested members of the public to hold. Because while details on the actual plan are still scarce, overreaction to it is currently in abundance.