There was a great deal of speculation and uncertainty at the beginning of May as to what action, if any, FCC Chairman Julius Genachowski would take to extend FCC's power to regulate Net Neutrality. In early April of this year, the Federal Court of Appeals for the DC Circuit decided that the FCC did not have the power to implement Net Neutrality rules because regulating cable broadband was not within their responsibilities. Some believed that reclassifying cable broadband as a Title 2 service would be the solution, and encouraged the FCC to do this. Others, like Comcast favored Title 1 classification, which they felt would "not cast a regulatory cloud that would chill investment and innovation by ISP's".
On May 6th Genachowski came out with a "third way" stating that the FCC would go forward with reclassifying just the "transmission component" of broadband, regulating the flow of data not the data itself.
So how did we get here? Before we get to a rundown of what that means and how we have gotten to this point, lets catch up on the ever growing history of an open internet :
Back in the day..
From the inception of the Internet lawmakers have taken measures to make sure the Internet was open and non-discriminatory towards users. Lawmakers understood that a certain amount of protection would safeguard the internet from becoming a monopolized medium, like cable for instance.
In 2005 the FCC came out with a statement of principles that consumers should be able to access the content and applications of their choice as well as attaching the devices of your choice. In 2008 Free Press and Public Knowledge requested an investigation at the FCC into Comcast's blocking of vs. Comcast case was brought to the FCC because peer-to-peer applications. Peer-to-peer is how large files are transferred between users. Comcast was caught interfering with the internet, the argument was that internet users should be able to access the internet in a nondiscriminatory fashion, as the FCC had previously articulated in its principles.
After the FCC confirmed that Comcast had violated FCC principles on "internet freedom", Comcast brought the FCC to the Federal Court of Appeals saying that they didn't have the regulatory power to regulate the internet. Comcast argued that the FCC doesn't have the regulatory power to regulate the internet, and that Congress should bestow that right, because cable broadband is not a Title 2 service (Title 2 governs "telecommunications services" such as voice service on your mobile phone). Broadband internet had been labeled a Title 1 service in 2002 under a Bush-administration led FCC Commission. Being excluded Title 2 means Broadband has been excluded from having to comply with a number of requirements and rules for Title 2 services. Comcast won the case against the FCC in April, which led to another wave of grassroots organizing around reclassifying internet as a Title 2 service.
On May 3rd Washington Post reported that FCC sources believed that Chairman Julius Genachowski would leave broadband services unregulated. Many people called the FCC and continued to sign petitions demanding open internet protections. On Thursday, Chairman Genachowski decided that he would go forward with the administration's Net Neutrality promises and implement what Genachowski calls a "third way".
Harold Feld, Legal Director at Public Knowledge is calling "Title 2-lite". Here is Harold Feld's video summing up the FCC decision on May 6th, 2010.
Essentially, the Commissioner decided he would invoke some of the ability to regulate that Title 2 allows and "forbear" or hold back on using other aspects.
This gives Net Neutrality (a free, open, and competitive internet) a chance, because it shows that the FCC is willing to work on protecting the Internet to remain open and not just let the ISP's make of it what they will. At the same time it may tailor the FCC's power narrowly enough to help avoid concerns of excessive government interference in the Internet.
Going forward, the Commissioner states that the FCC will be looking for comments on this proposed “third way,” and the future of the internet continues to be up for discussion.