Net neutrality appears to be in dire straits in the US with a decision expected soon in the US Appeals Court over the FCC’s ability to ‘regulate’ the Internet under its current definition as an information service.

Perhaps the swearing in of a newer, tougher FCC chairman, in the shape of Tom Wheeler, might change the balance? Perhaps not. Wheeler has already been playing with words. When asked the obvioius yes/no question - are you pro Net neutrality? - he appeared to answer another question. That’s always a worrying sign.

“I am pro the ability of individuals to access an open network,” he said. So something is obviously going to be let in under the wire sooner or later when some sort of deal is finally struck - what could it be?

Odds on that Wheeler’s position involves the network remaining open in principle - so that any user can get at any content - but (as with the EU information commissioner Neelie Kroes’ neutrality plan for Europe) there will be premium services allowed and encouraged. So you will always be able to access the Internet for any content, but if you’re not on the right service there may be some content that won’t always work as well. Differentiated services, in other words.

That there might be some high level trans-Atlantic consensus on this also makes sense.

The fear from the net neutrality point of view is that the dispensation might lead to the development of a ‘two speed’ (or multi-speed) Internet over time.

So things appear to be looking up if you’re a notrality supporter and not so good for the net neutrals.

But this is bound to be a long fight - not over until someone with an excessive Body Mass Index sings. In Europe the Dutch parliament, which instigated the first net neutrality law in Europe, looks like it’s going to hold out against Neelie and the proposed European Connected Continent legislation which would allow premium services. Dutch politicians are mulling a call to defend the national neutrality law which explicitly forbids ‘tollways’, against the Commission.

And in the US, seemingly in anticipation of the court overturning the FCC rules, a bill is to be introduced which in many ways follows the Dutch and other net neutrality laws around the world, by making net neutrality a matter of business discrimination rather than a breach of technical regulations. In US terms, it would become an “anti-trust” issue. That would get around the rules blockage at the FCC.

Democrat senator, Jay Rockefeller, as chairman of the Senate Commerce Committee, has introduced a measure that, if passsed, would stop ISPs from engaging in “unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which are to hinder significantly or to prevent an online video distributor from providing video programming to a consumer.”

Rockefeller’s bill goes after pay TV networks interfering with OTT video in particular, but the effect would be to make neutral business behaviour on the Internet the norm on all content issues.

Long story short: things like blocking, choking, surcharging, as well as restrictive covenants in carriage agreements, discriminatory usage-based billing and so on should be judged against business motivation. As we’ve long argued at TelecomTV, the net neutrality definition of “treating all packets the same” has been a distraction and an opportunity for the notrality advocates to pour scorn.

Rockefeller’s bill may not get far, but at least it’s making the right arguments within the correct frame.