Following a May District of Columbia Appeals Court decision in Comcast vs. FCC, the Federal Communication Commission has released a statement in which they outline a “third way” to deal with the problem known as network neutrality. Tim Wu, who first popularized the term in his 2003 paper entitled Network Neutrality, Broadband Discrimination, defines network neutrality as “the idea … that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application” . In Comcast vs. FCC, the court ruled that Comcast has the right to limit the Internet connections of their customers, who were using peer-to-peer services, on the grounds that such limiting falls under the role of network maintenance . The FCC took this as an attack on the principal of network neutrality because it allowed Internet service providers (ISPs), like Comcast, to treat certain applications as different from others. In response, FCC Chairman Julius Genachowski released a statement entitled “The Third Way: A Narrowly Tailored Broadband Framework” which outlined the FCC’s plan to reclassify the transmission element of broadband access as a telecommunication service . The “third way” is presented as an alternative to the two conventional methods previously suggested: either maintaining the FCC’s ancillary authority over Internet communications, leaving the FCC powerless, or reclassifying all Internet communications as telecommunication services, thus exposing such communications to a number of unnecessary and detrimental regulations. The “third way” would enable the FCC to side-step the court’s decision and continue to enforce its conception of network neutrality while stopping short of regulatory authority over Internet traffic itself . This article will explore how broadband access works and conclude that FCC regulation should be limited to internetwork connections.
Comcast originally instigated their policy of limiting consumer access to deal with a problem known as network congestion. Traditional copper wire voice networks carry a total frequency of 4 kilohertz. This is more than enough for voice communication but dial-up internet access, which is internet access provided through voice networks, can only provide a maximum of 56 kilobits per second over voice frequencies, far less than is necessary for effective use of more data intensive applications like streaming video or large file transfers . As a result of the increased demand for such data intensive applications, ISPs now predominantly provide what is known as broadband Internet access. There is no universally accepted definition of broadband Internet access, but the Organization for Economic Cooperation and Development (OECD) defines broadband access as having data transfer rates at or exceeding 256 kilobits per second .
The two most common methods of broadband access are digital subscriber lines (DSL) and cable . DSL access is provided through traditional phone lines at a higher frequency than voice services and is routed through a digital subscriber line access multiplexer or DSLAM. The DSLAM keeps the voice and data networks separate, allowing voice services to use the bottom 4 kilohertz while data networks use those above . Cable access is provided through the cable lines used to provide television access. Such lines are an obvious choice for broadband access as they already have sufficient bandwidth to provide multiple simultaneous television channels and the only additional requirement is to make the cable lines capable of sending as well as receiving data .
Recently, the advent of BitTorrent clients as well as the increased use of streaming video, online gaming, and video conferencing has led to a massive upsurge in broadband demand that is pushing the limits of current access networks. As Penn Law Professor Christopher Yoo explains, Internet access works in a similar fashion to a road network: there are backbone providers who provide long distance high-speed connections between the next level of providers known as middle mile providers who in turn connect what are known as last mile providers that bring broadband to the consumer’s home . All three levels suffer from the physical limits of their wired connections and these limits cause congestion . Users that consume abnormally large quantities of data put a strain on access points, especially with last mile providers like Comcast, who must use the lowest capacity connections as they connect to the most consumers. This strain causes a decrease in quality of service as access points become overwhelmed with traffic and overall connection speeds decrease . In traditional congestion economics, when congestion is an issue providers should instigate usage sensitive pricing. However, Yoo suggests that high transaction costs associated with the metering necessary to instigate usage sensitive pricing make the practice unfeasible and therefore ISPs must use alternative methods, such as interfering with the connections of high demand users, to support quality of service .
However, network neutrality defenders argue that limiting user access to certain applications, like BitTorrents in the case of Comcast vs. FCC, is harmful to the freedom that has made the Internet such a strong force for change . Tim Wu argues that such interference by ISPs constrains the evolutionary potential of applications as interference provides preferential treatment to certain applications while making it impossible for others to grow and develop . Another major contention is that limiting access to certain applications would allow ISPs to limit users to a select collection of ISP specific applications which would in turn limit free access to information and lead to censorship .
The practical needs of network maintenance make a completely un-fettered use of the principal of network neutrality unfeasible, yet the long-term implications of application restriction on the part of ISPs do have troubling consequences for Internet evolutionary growth. In order to account for both the practical needs of ISPs and the demands of network neutrality defenders, Wu suggests a policy of allowing ISPs to control their local networks while leaving internetwork connections free from such controls . This policy would allow ISPs to regulate their own last mile networks and conduct the necessary network maintenance to maintain a high quality of service while disallowing so called ISP controlled “walled gardens,” where consumers only have access to their particular ISPs applications. To return to Yoo’s road metaphor, an ISP controlled “walled garden” would be very similar to a city that cut its citizens off from all other cities. The citizens would only be able to consume the particular goods and services available in their city and would lose out on the benefits of trade with other cities. In order to cut off access to other cities from its citizens a city would have to control the highways, or the internetwork connections for ISPs. Apple’s IPhone operating system and America Online are both examples of “walled gardens” where the provider controls the applications available to the consumer. By disallowing ISP control of internetwork connections, ISPs would be unable to control the applications their consumers could access. If the FCC were to instigate such a policy, it would allow ISPs to maintain their networks without encroaching on the freedom of speech the internet provides and therefore would be an ideal solution to the current incarnation of the network neutrality problem.
 Wu, Tim. “Network Neutrality FAQ.” Tim Wu’s Home Page. Web. <http://www.timwu.org/network_neutrality.html>.
 08-1291. United States Court of Appeals for the District of Columbia Circuit. 6 Apr. 2010. Print.
 Federal Communication Commission. Chairman. The Third Way: A Narrowly Tailored Broadband Framework. National Broadband Plan. Federal Communication Commission. 6 May 2010. Web.
 Speta, James B. “Handicapping the Race for the Last Mile?: A Critique of Open Access Rules for Broadband Platforms.” Yale Journal on Regulation 17.39 (2000): 39-91. Print.
 Yoo, Christopher S. “Network Neutrality and the Economics of Congestion.” The Georgetown Law Journal 24 (2006): 1847-908. Print.
 Wu, Tim. “Network Neutrality, Broadband Discrimination.” Journal on Telecom and High Tech. Literature 2 (2003): 141-79. Print.