Editorial: Look to the Hill

Congress needs to step in and clarify what power
the FCC has over broadband. The FCC-brokered
industry talks may have been jettisoned by the agency in the wake of the Google/Verizon reports of an agreement on
network management and managed services. But just because the FCC isn’t
into the public brokering business anymore doesn’t mean there isn’t a deal
to be had, or that some of those stakeholders can’t and won’t still talk.

The cable and telco industry players and network neutrality absolutists
may be unlikely to have a kumbaya moment over the FCC’s broadband
regulatory authority. But perhaps those who cannot see networks as anything
but telecom Voldemorts should not be framing the debate anyway.

The Google/Verizon compact is a good place to start. It showed that a
network neutrality evangelist and a company that needs to run a network
can find common ground. Google was being pilloried for actually compromising
and agreeing to a carve-out for wireless broadband and managed
services, though Verizon was getting no credit for agreeing to the nondiscrimination
principle that is a key add-on in the FCC’s proposed codification
and expansion of its four Internet freedoms. They are both businesses
living in the real world of bandwidth-hungry apps and finite resources.

Given the number of legislators who are at least worried about the FCC’s
“third way” proposal and the opportunity it provides for mischief by a future
FCC with different folks in the big chairs, it now seems obvious: To get clarity
about what authority Congress wants the FCC to have over network access
and management and nondiscrimination, the place to go is Congress.

FCC Chairman Julius Genachowski has suggested that Title II reclassification would essentially consolidate the expected legal challenges to the
FCC’s authority into one case, rather than the series of court challenges to
individual actions expected if the FCC did not try to clarify its authority in
the wake of the BitTorrent decision. But the commission could also avoid
court battles if Congress weighed in with targeted legislation.

The FCC appears to be afraid that without doing something quickly to
shore up its authority, all heck.com will break loose and its vaunted national
broadband plan will be imperiled. We actually agree that regulatory clarity
is necessary, and the sooner the better. But a bad decision hastily imposed
against the wishes of a majority of the members of the House of Representatives
is not the way to go.

Stakeholder sources are looking to the FCC to continue to work more
informally toward a possible wider agreement on a legislative path forward.
It should, and industry should keep the lines of communication open.