The Third Way 2.0: Evaluating the Title II Reclassification and Forbearance Approach to Net Neutrality
Citation: 103 Geo L.J. 1609 (2015)
As a Los Angeles Times editor put it, “In essence, the [net neutrality] debate boils down to a question of what freedom online is most worth preserving: the freedom from regulation, or the freedom from interference by [Internet service providers].” Nearly four million comments were filed with the Federal Communications Commission to weigh in on the net neutrality rulemaking proceeding, eclipsing the previous record set when it received 1.4 million comments in response to Janet Jackson’s Super Bowl “wardrobe malfunction” in 2004. This Note seeks to explain some of the key legal and policy arguments embedded in those rulemaking comments. This Note also discusses the costs and benefits associated with the net neutrality rules approved by the FCC in March 2015.
Columbia Law Professor Tim Wu coined the term “net neutrality”—short for network neutrality. Net neutrality is synonymous with an “open Internet”: the idea that users should choose what lawful content, services, and applications to use online, without interference from Internet service providers (ISPs). To provide for an open Internet, the FCC adopted rules that apply to providers of “broadband Internet access service”—that is, mass-market retail service that provides the capability to send and receive data over the Internet. In general, there are two categories of broadband service: (1) “fixed” broadband service
provides Internet access at stationary locations (for example, home modems); and (2) “mobile” broadband service provides Internet access to users of mobile stations (for example, smartphones).