Netflix does use Level 3. At least for their connections to Verizon FiOS customers. Who also observe shit performance.
It's very important that the distinction be made between saturated interlinks and throttling of specific origins; many people seem to think that it's the latter that's been done here, when the issue is consistently interlink capacity disputes between last-mile ISPs and T1 providers.
To put it another way, unless these new rules require that ISPs hook up as much interlink as their T1 peers ask for, these rules won't fix shitty Netflix performance on last-mile networks who are engaged in peering disputes with Netflix's transit providers.
100% agree. But it isn't really "as much as peers ask for;" it's more like: as much as consumers demand, keeping peak link utilization at 50% or some industry standard figure.