Effort follows recent loss in court.

You have to feel sorry for the FCC, trying to write net neutrality rules despite a court order that pretty much rules out “neutrality.”

A month after the D.C. Circuit rejected the FCC’s approach to net neutrality, the FCC has announced it will not appeal that decision. While three of the commissioners remain determined to craft some type of net neutrality constraints, the FCC has put out a curious announcement that sheds no light on what, if any, alternatives it may have in mind to address a problem the court just made a lot more difficult.

The sad part, though, is that the FCC’s dilemma is entirely self-imposed.

Back in the dial-up days, the FCC distinguished between transporting Internet content and providing that content. It regulated the transport component of Internet service as common carriage, while leaving the provision and processing of content unregulated.

With the advent of broadband, the FCC made a key change. It decided to treat the transport and provision components together as a single service, and deregulated all of it. Those rulings relinquished its common carrier authority over the transport component, a step that led directly to the D.C. Circuit’s striking down the FCC’s net neutrality rules.

To be sure, the court agreed with the FCC that Section 706 of the Communications Act, while on its face merely telling the FCC to “encourage” broadband deployment, nonetheless provides “affirmative authority” to impose “rules governing broadband providers’ treatment of Internet traffic.” But the court balked at the non-discrimination provisions the FCC had written into its rules. Non-discrimination, said the court, is a hallmark of common carrier regulation. The FCC cannot impose such rules on companies it has specifically declared not to be common carriers.

The FCC said it will not appeal this ruling; instead it will try to craft new net neutrality rules that comport with the court’s decision. To do that, it will have to find language that imposes a non-discrimination requirement on Internet service providers (ISPs) while still avoiding the non-discrimination wording that characterizes common carrier rules. Since the potential discrimination by ISPs that concerns the FCC is almost the same behavior as is barred to common carriers, we don’t see how the FCC expects to pull off this linguistic feat.

The two Republicans on the five-member Commission are opposed to the rewrite attempt, preferring to leave the broadband ISPs unregulated.

The FCC has another option: it can “reclassify” the transport component broadband of ISP service as common carriage. The legal obstacles are probably surmountable, but the political barriers may be higher. Successive FCC chairmen have ruled out the possibility – although the current Chairman Wheeler recently backed off somewhat from this commitment, reminding us that the Commission still has the authority to reclassify Internet service if warranted. Yet that authority comes from Congress, where some have warned that they will step in to overrule the FCC if it tries to reclassify. We expect the anti-reclassification forces will have support from the telephone and cable companies who serve most of the country’s broadband Internet users and who prompted deregulation in the first place.

Having stared at this problem for several years, the FCC is surely familiar with its available options. It is thus noteworthy that the FCC declined to suggest a preferred course (through the issuance of a Notice of Proposed Rulemaking) or even to lay out the known options (through a Notice of Inquiry). Rather, it has essentially shrugged in bewildered puzzlement and opened up the call-in lines to anybody anywhere who might have some thoughts, any thoughts, on the matter. After briefly summarizing the history of net neutrality to date, the FCC announces:

[W]e establish a new docket in which to consider the court’s decision and what actions the Commission should take, consistent with our authority under section 706 and all other available sources of Commission authority, in light of the court’s decision.

We welcome comments from interested parties.

This total lack of direction might suggest that the FCC is adrift in a rudderless boat with no compass and only the D.C. Circuit’s decision as a very rough map. Or possibly the very smart people who work there have something up their sleeve they are not ready to disclose.

You can make the reclassification dispute unnecessary and help guide the FCC to safer waters by telling it how to write network neutrality rules that accord with the recent court decision. Read the public notice; then browse to this link and enter your suggestions in Proceeding Number 14-28. Comments submitted by March 21, 2014 will be especially helpful, says the FCC. Please be polite.