The Federal Communications Commission (FCC) is planning in the next couple of weeks to begin an inquiry into Net Neutrality. On the surface, that might appear to be an enlightened, even noble, action for the agency to take.

It’s not. Beneath the surface, the reality is that FCC Chairman Kevin Martin’s planned Notice of Inquiry on Net Neutrality is an audacious triple play with the goals of greasing the largest telecom merger in history, relieving pressure on a key piece of legislation, and burying the Net Neutrality concept for good.

Net Neutrality is the simple idea that the companies which operate telecom networks, like telephone and cable companies, shouldn’t be able to have control over content by playing favorites, whether with affiliates or through companies which cut special deals. The telephone network operated for 71 years under a non-discrimination policy, which the FCC lifted last year for high-speed Internet services. Those of us, like my day job employer Public Knowledge, who want customers and content producers to have the ultimate control, want that non-discrimination principle reinstated.

The Net Neutrality debate has proven so potent that the proponents in Washington and around the country have been able to bring Senate Commerce Committee Chairman Ted Stevens’ massive telecom bill to a standstill. There’s a lot in the bill not to like, but Net Neutrality is the defining issue.

So here’s the setup. The FCC is currently considering AT&T’s $67 billion purchase of BellSouth, the largest merger in history. In similar past mergers, such as SBC’s purchase of AT&T, or Verizon’s purchase of MCI, the Commission has imposed some relatively neutered Net Neutrality conditions for a limited period of time. Martin would like to approve the current deal without any conditions.

Martin’s gambit to make the merger as painless as possible for the companies is to try to take the Net Neutrality issue off the table. The way he will try to do that is with a Notice of Inquiry.

In the arcane world of FCC process, there are basically three levels of action the Commission can take. Most of the time, the Commission employs only two out of three. First, there is a Notice of Proposed Rulemaking (NPRM). The construct of the NPRM is that the Commission has found a problem that needs a Commission ruling and proposes some solutions. After a public comment proceeding, the Commission then issues the rule. The construct the rule is that the Commission has picked a course of action to follow. Most of the time the Commission adopts its proposed rule, rather than something others might suggest, but you have to go through the drill anyway.

A preliminary step to the NPRM is called the Notice of Inquiry. The construct here is that the Commission is asking whether there is a problem that needs FCC attention. Notices of Inquiry rarely go any farther in the process. They are a device for burying a problem. But this one is tricky, for the political and analytical hazards it poses for Net Neutrality advocates, including FCC Commissioners Michael Copps and Jonathan Adelstein.

When the FCC votes on an action, Commissioners can vote for it, vote against it, or concur in part or dissent in part. Because the window dressing on a Notice of Inquiry is that it’s simply asking a question, it’s hard for a Commissioner to vote against issuing one without appearing unreasonable. In this case, it would be hard for Copps or Adelstein to vote against issuing the Inquiry would open them to the charge of being unreasonable. After all, critics will say, the Commission is only “asking questions” and no one can object to that, particularly when Copps had been such a staunch advocate of Net Neutrality.

It’s easy to see how the inquiry will play out. The telephone companies and cable companies will tell the FCC there’s no problem with Net Neutrality. Those of us who favor reinstating the non-discrimination law will argue that there might not be a current problem because discrimination was until recently illegal, because the telephone and cable companies are on their best behavior while trying to obtain easier entry to the cable business from Congress and because the FCC’s current non-enforceable Net Neutrality principles don’t protect consumers from the telephone and cable companies giving priority to the services in which they have a financial interest (even more than they do now with Internet telephony).

None of our arguments will matter. The FCC, if it says anything, will say there’s no need for a proposed rulemaking because no one has shown a problem exists. More study or monitoring will be needed. Even if the telephone and cable companies do start openly discriminating in favor of some services, the current FCC is unlikely to do anything about it.

As an added bonus, Stevens will be able to say there’s no need to pursue Net Neutrality in his telecom bill because the FCC is handling the issue. The irony, of course is that the legislation prohibits the FCC from enacting any rules on Net Neutrality.

Here’s an alternative scenario. Martin’s actions should be seen as dodge they really are. Copps and Adelstein should insist on strong non-discrimination language as part of the AT&T takeover of BellSouth. They should either dissent to the bogus Notice of Inquiry or, at the least, point out the reality of the situation. And the telecom legislation should be allowed to expire. Then, perhaps next year, a serious discussion about protecting the open Internet can take place.