Editorial: Look to the Hill

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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.

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