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Editorial

The F.C.C. Tries Again

After losing two court cases on the issue, the Federal Communications Commission last week came up with a promising way to prevent broadband companies from giving preferential treatment to big players like Netflix and Google, which could hurt smaller businesses and start-ups, as well as consumers.

At issue is whether the broadband providers can charge different rates for different types of content, or even block content altogether. The commission’s most recent legal defeat came last month when the United States Court of Appeals for the District of Columbia Circuit struck down regulations the F.C.C. enacted in 2010. The regulations would have restricted the ability of phone and cable companies to block or discriminate against some Internet traffic. The F.C.C.’s chairman, Tom Wheeler, says the commission will not appeal and will instead rewrite its rules to comply with the decision in a way that will effectively achieve the same result.

It is important that the commission get these rules right. Without these regulations, broadband providers would be free to strike deals with the Amazons and Apples of this world to deliver their movies, software and other data to customers faster than, or ahead of, other content. Such deals would put smaller competitors at a serious disadvantage.

Phone and cable companies say these rules are not needed because the companies are committed to an “open Internet.” But that could change as the few large companies that dominate the industry become even bigger. Earlier this month, Comcast, the nation’s largest cable and broadband company, agreed to buy Time Warner Cable in a deal that would give it control of about one-third of the country’s broadband subscribers.

There are two ways the commission could proceed. It could reclassify broadband as a telecommunications service, which would allow it to prohibit companies like Verizon and Comcast from engaging in “unjust or unreasonable discrimination.” (The F.C.C. classified broadband as a lightly regulated information service during the Bush administration.) Or, the court said, the commission could issue rules under a provision of a 1996 federal telecommunications law that authorizes it to promote the spread of broadband.

Mr. Wheeler says he intends to use the 1996 law, presumably because that would be easier than reclassifying broadband, although the commission will leave the option to reclassify broadband open. In a smart move, Mr. Wheeler also said the commission would explore using its authority to challenge laws in 20 states that restrict city governments from offering broadband service to local residents in competition with private companies. More competition would discourage phone and cable companies from blocking or interfering with Internet traffic, since they would fear losing customers.

The option the chairman has put on the back burner — reclassifying broadband — is more likely to survive a court challenge than using the F.C.C.’s power to promote broadband (authority the court has said is quite limited and can’t be used to impose telecommunications-style regulation).

Having failed twice to write rules acceptable to the appeals court, the F.C.C.’s credibility is at stake. It has to prove that its latest strategy can work.

A version of this article appears in print on  , Section SR, Page 10 of the New York edition with the headline: The F.C.C. Tries Again. Order Reprints | Today’s Paper | Subscribe

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