Is the FCC Chairman getting ready to take a case-by-case approach to net neutrality?

FCC chairman Tom Wheeler said Monday that he will announce the agency’s proposed plan for an open Internet “in the coming days” – but the plan may disappoint net neutrality advocates.

First, some background. When a federal appeals court in Washington, D.C. ruled last month that the FCC does not have the authority to require that Internet service providers treat all traffic equally, it also gave the agency a clear way to obtain that authority, saying the FCC could regulate these providers if it changes how it has chosen to categorize them.

Under the Telecommunications Act of 1996, the FCC can decide if ISPs are “telecommunications services,” which transmit information and treat all information equally, or “information services,” which process information. Telecommunications services, like wired phone networks, are regulated to be open, common carriers, whereas information processors are left unregulated to promote innovation.

Although net-delivering cable companies offer both kinds of services, the FCC decided in 2002 that their information processing (of web sites, for instance) trumped and that cable-delivered broadband would be classified as an information service. (The FCC chairman at the time, Michael Powell, is currently the main lobbyist for the cable industry.)

In 2005, any platform that delivered broadband net was also classified as an information service. Since only a telecommunications service can be regulated as a common carrier, this raised the possibility that the Internet could become like cable TV, with tiers of programming.

Many net neutrality advocates are hoping the FCC will simply correct its previous classification. But that’s not what Wheeler has been signaling in recent weeks.

Economics journalist Hal Singer, writing in Forbes magazine late last month, believes that the FCC will adopt an “adjudication” compromise:

“In a nutshell, the FCC would permit special-delivery arrangements between broadband providers and websites, but the agency would police abuses of that newfound discretion through a complaint process.”

In his speech on Monday at a conference in the University of Colorado, Wheeler acknowledged that the court said “the preservation of an open Internet is within the FCC’s authority.” Yet he has indicated on previous occasions that he prefers a case-by-case approach.

This, of course, raises the distinct possibility that all of those cases of abuse will require opponents to organize and complain, and all may end up in court.