The Federal Communications Commission (FCC) will pass Internet line regulations for the first time ever on Tuesday, shoring them up with a shaky legal argument that could get shot down in court.
But the agency will not close the door on using a stricter legal framework that might be more likely to survive a court challenge — even though the tougher regime is seen as anathema to broadband investment.
It became clear on Monday afternoon that the FCC has the votes to pass Chairman Julius Genachowski's compromise net-neutrality proposal. After weeks of negotiating, Democratic FCC Commissioners Mignon Clyburn and Michael Copps have agreed to support the chairman's plan — although they both said they wish it were stronger.
"While I cannot vote wholeheartedly to approve the item, I will not block it by voting against it. I instead plan to concur so that we may move forward," Copps said in a statement.
Clyburn took a similar line in a statement.
"The Commission has worked tirelessly to offer a set of guidelines that, while not as strong as they could be, will nonetheless protect consumers as they explore, learn, and innovate online," she said.
As the FCC prepares to pass what is has portrayed as a compromise solution on net neutrality — palatable to some broadband carriers, some Internet companies, and some public interest groups — it has refused to rule out a much stricter legal regime that it explored earlier this year.
A senior FCC official told The Hill on Monday that as the FCC moves to impose new net neutrality rules, it will leave its Title II docket open. That docket would reclassify broadband as a public utility, subjecting phone and cable companies to a powerful new set of strictures.
Republican Commissioner Meredith Baker has adamantly called for the Title II docket to be closed, arguing that investors gain little certainty if is still looming.
"What certainty can the Commission provide industry if there remains an open and active docket under which three Commissioners-at any time-could flip a switch and treat broadband as a monopoly-era service?" she said in a speech last week.
Senior FCC officials said on Monday that negotiations with Copps and Clyburn caused Genachowski to make various revisions to the rules, including to the definition of broadband Internet access service, a key concern of public interest groups.
Public Knowledge, which supports strong net neutrality rules, saw it as a negative development that the compromise proposal will be cemented.
"Consumers deserved better. The FCC should have fought for consumers, not put the burden on them to fight for their rights," said Public Knowledge President Gigi Sohn.
Still, she said it is a positive development that the Title II docket will remain open.
"They are going to need it for many other parts of the [broadband] plan: public safety, cybersecurity, USF, data roaming, privacy," she said.
The Republican commissioners have already said they will vote against the plan. Republicans in Congress oppose it as well, and have promised to push back strongly in the next Congress with hearings and legislation.