As the FCC grappled with how to regulate network neutrality following an April court decision that diminished its authority over Internet service providers (ISPs), over the summer it began holding industry meetings. The goal was to bridge the gap between two groups that have been diametrically opposed on network neutrality: content providers fighting for an open Internet and Internet carriers fighting FCC regulation of their network management practices. Just when a stalemate seemed inevitable, on Aug. 9 content provider Google--a leading pro-net neutrality voice--and carrier Verizon broke away from the FCC talks and released their own joint legislative framework proposal.
Under the proposal, ISPs would be prohibited from "undue" discrimination against "lawful" data. They wouldn't be allowed, as in the case that threw the FCC into uncertainty, to limit speeds to bandwidth-sucking content providers such as peer-to-peer filesharing networks, or, conversely, to allow faster speeds between users and certain content providers.
Following that ruling, the FCC proposed what it called a "Third Way"--an alternative to either continuing to regulate under the ancillary authority that the D.C. Circuit said it lacked, or applying its authority, set forth in Title II of the Telecommunications Act, over telecommunications services to Internet and broadband providers. The Third Way struck a balance--the FCC said it would assert its Title II authority to regulate certain ISP practices, but only where that authority was clear from the statute. In murkier areas, it would use rulemaking procedures to gain such authority. (The scheme would require committee-level approval, at the least, from Congress.)
"It's not as good as if they'd gone to Congress and tried to get legislation passed," says Kevin Thompson, a member at Davis McGrath. "[It's uncertain whether] they're going to get the authority they need, but in this political climate they might think it would be easier to get that through than with a whole new set of regulations."