WASHINGTON DC – While Net neutrality rule-making by FCC Chairman Tom Wheeler sputters and spins, some folks on Capitol Hill are reportedly poised to provide much-needed relief.

FCC Chairman Tom Wheeler certainly expected to be asked about the ongoing Net neutrality rule-making in his appearance Wednesday at CES, CNET News.Com reported. But he may have been surprised at the direction that conversation has taken in the last few days.

Multiple sources have reported that a bipartisan effort has been under way for several weeks in Congress to draft legislation that would supersede the FCC’s efforts while providing a solid legal foundation for enforceable rules after a decade of failed efforts by the commission.

This week, Politico reported that Senate Commerce Committee ranking member Bill Nelson (D-Fla.) has been working on a Net neutrality bill with the committee chairman, John Thune (R-S.D.).

Nelson told Politico that he and Thune had “talked extensively” about a bill that would solve the FCC’s Net neutrality problem without transforming ISPs into public utilities, but that the two “don’t have any resolution.”

“Stay tuned,” Nelson told Politico. “It’s going to be exciting.”

Indeed. How the Net neutrality debate proceeds could now come down to timing. As CNET reported earlier today, Wheeler confirmed that after nearly a year of false starts and U-turns, he plans to circulate a new Net neutrality proposal to his fellow commissioners on February 5, with a vote planned for the commission’s February 26 meeting.

“We’re down to short strokes on this,” Wheeler told a full house at CES, in his one-on-one interview with Consumer Electronics Association CEO Gary Shapiro. “It’s been an interesting process — there’s an understatement — over the last year.”

Wheeler was referring to the raucous and often bizarre twists that have plagued what would normally have been the dull machinations of an administrative proceeding. Late-night comedians lobbed jokes at the agency’s expense while protesters disrupted commission meetings. Later last year, the agency announced it had misplaced or misidentified as many as 650,000 public comments in the proceeding, most of which were form letters and other spam.

Wheeler was combative but seemed more relaxed than he has since taking office in late 2013, with the end possibly near for a public relations nightmare in which the chairman was subjected to repeated personal attacks by activists, including some who blocked his driveway.

Conflict with Congress?

But Wheeler’s troubles may not be over so fast, as his final proposal will likely bring him into conflict with what Congress is considering. While Wheeler refused to go into specifics on the proposed rules, he did confirm his intention to proceed with a controversial and legally uncertain approach that would “reclassify” broadband Internet access services as utilities under a provision of the 1934 Communications Act written for former monopoly telephone service.

The chairman dodged questions about how he would respond to congressional action that could on the one hand pre-empt an agency rule making while at the same time resolve the nagging problem of regulatory authority once and for all without resorting to the public utility approach.

“We’re coming out with the gold standard,” Wheeler said. “If Congress wants to come in and say we want to make sure that this approach doesn’t get screwed up down the road by some crazy future FCC chairman….” Wheeler did not finish his thought.

Congressional action, however, could do more than simply validate possible agency action. The FCC’s lack of authority over broadband ISPs under current law “has been the real issue all along,” said University of Pennsylvania Law School professor Christopher Yoo, who spoke earlier in the day at CES’s annual Innovation Policy Summit.

The concept of Net neutrality itself, Yoo said, is nowhere near as contentious as the FCC’s lack of congressional authority to enact and enforce rules that regulate broadband Internet service in the first place.

Federal courts have twice rejected earlier FCC efforts to regulate ISPs, most recently in January 2014, when the latest round of Net neutrality debates restarted. The rulings found fault not with the rules, however, but rather with the agency’s authority to make them.

Wheeler wrote in a blog post soon after the January ruling that the court had finally given the FCC actionable guidance on how to proceed under current law, citing a provision known as Section 706 that gave the FCC authority to promote broadband.

In April, the agency issued a Notice of Proposed Rulemaking to restore the 2010 rules rejected by the court, basing its authority on Section 706.

“[T]he simple fact is that the court has provided a legal roadmap for how we can protect Net neutrality and do so expeditiously,” Wheeler wrote in late April. “The recommendation on which we seek comment would result in timely and meaningful Open Internet rules. … We have been talking about Net neutrality for a decade; it is time to put something in place — and to do it with dispatch.”

Changing course

But after activists staged protests and generated an avalanche of comments that overloaded the agency’s outdated IT systems, the chairman changed course repeatedly, announcing over the summer that he was considering the more dangerous reclassification route, on the theory that it would give the agency a wider legal berth in which to regulate.

After reports circulated that the chairman was also considering a “hybrid” solution that would regulate under both Section 706 and Title II, the White House intervened. Soon after the mid-term elections in November, President Obama released an unprecedented statement calling on the constitutionally independent FCC to pursue Title II in full.

“[T]he time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do,” Obama said, referring to services including water, power and other infrastructure long regulated as quasi-governmental public utilities.

Wheeler acknowledged today that the president’s intervention had changed the debate. The chairman now seems committed to reclassification, though he rejected claims that he, like the president, wants to transform ISPs into public utilities.

Wheeler indicated he would apply only limited sections of Title II to broadband ISPs, leaving off onerous provisions such as those requiring providers to file tariffs and other information, and to work with state utility commissions as incumbent wireline telephone providers must still do.

Still, any Title II approach, as Wheeler has said repeatedly, is certain to lead to another legal challenge. And the FCC will be fighting an uphill battle. The utility rules were only left in the last major revision of communications law in 1996 to regulate what’s left of the former monopoly telephone network, which is now nearly defunct as up to 80 percent of consumers have switched to better and often cheaper mobile and VoIP alternatives.

Broadband Internet, on the other hand, was defined as an “information service,” subject to the light-touch regulatory model under Title I of the law, not Title II.

The FCC itself argued for that interpretation in a 2005 Supreme Court case known as Brand X. The court agreed with the agency in a 6-3 majority that unleashed billions of dollars of investment by cable, fiber, DSL and satellite Internet providers.

The FCC will now have to convince the federal courts that its 2005 view of the law was wrong. There is also the likely risk that reclassification will slow or halt continued investment in new and upgraded broadband infrastructure.

That’s why both Republican and Democratic lawmakers have long argued that the only solution to the Net neutrality conundrum, if any, must come from Congress granting the agency limited authority to resolve specific concerns, such as blocking, throttling, and potential future “paid prioritization” deals.

Until now, however, several bills that have been introduced never moved very far.

But with the embarrassing chaos that has characterized the past year of FCC proceedings, and with the chairman on the verge of taking action he acknowledges is not on as firm a legal footing as his original proposal, this time may be different.

The question may soon become not how the FCC will vote, but whether they will wait for Congress to pursue a potential bipartisan compromise.