Net neutrality was probably as good as dead when Netflix and Comcast reached a deal for Netflix to pay the cable giant for high-speed access to its video streaming customers. (Full disclosure: Melissa and I are catching up on How I Met Your Mother by watching entire seasons on Netflix, just as quickly as the boys will let us, which isn’t very.) But now the FCC is getting into the game:

The Federal Communications Commission is set to propose new open Internet rules that would allow content companies to pay for faster delivery over the so-called “last mile” connection to people’s homes, but enhance scrutiny of such deals so they don’t harm competition or limit free speech.

That’s according to a senior FCC official familiar with the matter who wasn’t authorized to speak publicly and spoke on condition of anonymity. FCC Chairman Tom Wheeler is to present the proposed rules to the other commissioners on Thursday.

So-called “net neutrality” rules are hotly debated because without them, consumers’ ability to freely access certain types of content could be constrained by giant conglomerates for business, political or other reasons.

That last bit is the worrisome thing, isn’t it? And it’s difficult to know where to take a stand, when the players include free-speech killers like the federal government and giant, monopolistic utilities like Comcast.

If we get into a situation where the content of my downloaded bits can be regulated or priced, then I’m worried. In fact, then it’s Game Over for the internet as we know it. But the old days of the internet, where all bits were created equal, was over when HD video streaming became a thing. Because now we’re in a new situation. It’s no longer just web surfers going to similar HTML-based pages whenever they happen to have a computer in front of them. Netflix streaming customers make up a small minority of web users in this country, but during primetime viewing hours they make up one-third or more of all internet traffic. In this country, that’s about ten percent of all internet users taking up 40% of the bandwidth. And they can do it from their desktops, their laptops, their tablets, their phones, or even from the bedroom TV.

At some point, something’s gotta give — especially as Netflix continues to sign up new streaming customers, which is precisely their business model.

But we have to make a distinction here between the content of our bits and the number of our bits. What you download should follow the rules of the Old Internet — bits is bits. It shouldn’t matter to Comcast or to the FCC if you’re downloading Shakespeare, porn, or a political attack ad. Bits is bits.

But now that a small fraction of users have the ability to use up huge amounts of bandwidth right from their sofas, it makes sense for someone along the cable line to be able to charge them extra for their outsized demands on the system.

Generally I’d prefer to see private entities cutting bandwidth deals like the one between Netflix and Comcast. But if anyone — private or public — starts charging different rates based on the content of our bits rather than their sheer numbers, then it’s pitchfork time, folks.