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Lobbying intensifies over FCC’s ‘fast lane’ plan

WASHINGTON — In the nine weeks since the Federal Communications Commission said it would try, for a third time, to write new rules to secure an open Internet, at least 69 companies, interest groups, and trade associations — more than one a day — have met with or otherwise lobbied commission officials on what the rules should specify.

That effort does not count the more than 10,000 comments individuals have submitted to the FCC.

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Now the flood of lobbying efforts is likely to increase after the disclosure Wednesday evening that the FCC would soon release preliminary rules allowing for the creation of special, faster lanes for online content to flow to consumers — for content providers willing to pay for it.

The FCC had warned against such deals, saying they could unfairly favor companies with deeper pockets. But after a federal appeals court struck down, for a second time, the commission’s earlier regulations, the FCC is trying again.

Reaction was swift, as consumer groups accused the commission of betraying its promise to maintain net neutrality, or equal treatment for both providers to and users of the Internet. That prompted an immediate rebuttal from the FCC chairman, Tom Wheeler, who said late Wednesday that speculation that the commission was “gutting the open Internet rule” was “flat out wrong.”

The jockeying continued Thursday. Verizon, which brought the court challenge that prompted the last set of open Internet rules to be struck down in January, issued a statement warning against “unnecessary and harmful” new rules. Consumer advocates reiterated their opposition.

Wheeler stepped up his defense of the commission’s plans. “The proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted,” he wrote on the FCC’s blog.

The sparring will be closely watched by every company that depends, even peripherally, on the Internet — which is to say, just about every company out there. Businesses that use Internet connections to provide consumer services — obvious ones like Google and Netflix but also home alarm system providers, medical equipment companies, and even makers of washers and dryers — will thrive or fail based on how much it costs them to maintain easy online contact with households and businesses.

As such, the lobbying ahead of the release of the proposed new rules on May 15 is certain to be intense. As recently as Tuesday, officials from the National Cable and Telecommunications Association, which represents cable and broadband companies and is led by Michael K. Powell, a former FCC chairman, met with commission staff members to discuss the pending proposals.

For companies, lobbying efforts will center on what it means for a broadband provider to favor some content over another in a “commercially reasonable” way — the standard the FCC says will determine whether a practice is acceptable.

The FCC says its proposal will show that it is trying to accomplish most, if not all, of the same goals that it pursued in its 2010 Open Internet Order, which the appeals court struck down.

“The court of appeals made it clear that the FCC could stop harmful conduct if it were found to not be ’commercially reasonable,’” Wheeler wrote in his post.

In addition, he wrote, the commission “believes it has the authority under Supreme Court precedent to identify behavior that is flatly illegal.”

If the FCC fails in this attempt to devise rules that withstand judicial scrutiny, technological advances may move so far beyond current practices that the concept of trying to govern broadband connections could be irrelevant.

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