When the D.C. Circuit ruled April 6 in Comcast Corp. v. Federal Communications Commission that the Internet essentially doesn't have a federal regulator, prognosticators expected the FCC to respond with an either/or solution: continue to rely on its ancillary authority to regulate under Title I of the Communications Act of 1934 or reclassify broadband Internet access under Title II.

But one month to the day after the court delivered a decision that gutted significant aspects of the agency's plans for national broadband deployment, FCC Commissioner Julius Genachowski announced a radical shift in broadband classification. Pending a final rule, broadband will neither be regulated solely under Title I or Title II. Instead, Genachowski proposed “The Third Way.”

Under this proposal, the FCC will govern different Internet functions under different statutes, managing Internet service providers (ISPs) such as AT&T and Comcast under Title II of the act, alongside heavily regulated telecommunications networks. Internet content, however, which includes everything from Twitter to NYTimes.com, will remain under the loosely regulated Title I jurisdiction. It's based on a framework suggested by Supreme Court Justice Antonin Scalia in a 2005 dissent to National Cable and Telecommunications Association v. Brand X Internet Services, Inc.