FCC Should Abandon Third Way And Support Congressional Reform

I'm a big believer that if you're going to do something you should do it right the first time. Also, if you're going to do something, make sure you're doing the right thing.

To that end, today I want to make the argument that the FCC should abandon its push for a "third way" on telecom regulation and instead get behind the push for a Congressional update of the Communications Act.

As a quick refresher, the FCC recently lost a court battle that's called into question their authority to regulate broadband. FCC Chairman Julius Genachowski has proposed a "third way" that aims to split the difference between the side that wants broadband to be regulated and the one that doesn't.

While this is going on, Congress has grumbled about the FCC's attempt to take unilateral action on broadband reclassification, and now they've come out to say that they're prepared to revisit the Communications Act, which will necessitate a debate over things like FCC authority over broadband.

Now, with this refresher in mind, I think it's a mistake for the FCC to try and blaze its own trail on these issues. I say that for multiple reasons.

The first is simple: what good is a "third way" if whatever the FCC comes up with as a compromise is overruled or made irrelevant by Congressional action? That could easily happen in big and small ways, meaning that all the work the FCC puts into this may be for naught.

The second is a related thought: the FCC should wait until it has its new Congressional authority before trying to re-regulate broadband. At this point we have no idea what the FCC's new powers will be, so it seems unwise to embark on such a fundamental reexamining of how we regulate broadband with this much uncertainty.

The third is to acknowledge the basic reality that Congress is higher on the totem pole than the FCC. There's really nothing the FCC can do that can't be taken away by Congressional action, so it seems like it makes sense to try and work with Congress rather than against them.

Which brings me to my main point. The most fundamental truth of these debates about re-regulating broadband is that whatever is decided and however these decisions are made, it's going to be a contentious process. There are no such things as making easy, no-nonsense tweaks to broadband regulation. Instead, what's going to happen is that there will be a massive PR and lobbying fight pitting those who wish to maintain the status quo vs. those who want to see revolutionary changes.

I bring this up for the simple reason that if we're going to have to endure a knock-down-drag-out fight, I want to make sure we're doing it to accomplish something that matters. My fear is that we're going to have to put all this energy into making sense out of what will be a bloody battle between interest groups only to create new regulations that could be washed away by Congress.

That is why I believe that if we're going to open Pandora's Box and try to take on these most contentious of issues, then we need to make sure we're doing this right, we need to concentrate everyone's energy on one focused battlefield rather than allowing these battles to spring up everywhere. And in my mind, the battlefield with the most at stake, with the greatest chance of improving our country's broadband future is in Congress.

Now, I understand there are risks associated with abandoning the FCC's "third way" approach and focusing all our energy on Congress.

One big downside to doing this is timeframe. With elections in the fall, we'll be lucky to get serious Congressional movement on these issues until 2011, and it could take even longer to resolve given how little Congress seems to understand the real issues at hand.

The FCC, on the other hand, has the potential to move unilaterally and more quickly. But there's a flipside to this, namely that whatever the FCC does will be more exposed to being tied up in court challenges than whatever Congress does. So while the FCC may be a shorter path to getting new regulations resolved in the short term, in the long term it may take FCC action a lot longer before it can create regulatory certainty.

Another potential downside some might cite in trying to work through Congress on these issues is that many people feel as though a significant portion of Congress is in the pocket of the biggest broadband providers. Some might point to the recent letters from Congress to the FCC demanding that they abandon their "third way" proceedings as evidence of this as the signees of these letters were broad and represented both parties.

But be that as it may, this doesn't change my opinion of what needs to be done. For starters, even if it's true, there's no way to get away from it. Whether we focus the fight in Congress or the FCC, ultimately Congress will have its say. Because of this, I'd rather have Congress involved from the outset so at a minimum we don't end up having to deal with a Congress that's pissed off at the FCC for attempting to make these decisions unilaterally.

A final potential downside to taking this Congress-centric approach is that it may cause the debates to broaden too widely, dealing with too many issues. One advantage the FCC has right now is that they're laser-focused on a specific issue they feel needs to be addressed. When these debates go to Congress under the umbrella of revisiting the Communications Act, there could be any number of minor issues that flare up that will divert us from the need to focus on establishing a new core for how America's broadband policies work.

But again, I feel like this is a risk we have to take. If we want real reform, if we want to have a comprehensive communications policy that's relevant to the advances in 21st century communications technologies, then we need to have a far-ranging debate. The responsibility, then, falls on our shoulders to make sure that debate stays focused on the issues that matter most.

If the FCC feels it must proceed with its attempt at "third way" regulations, what I'd strongly suggest the agency do is take the approach that what they're doing is not the be-all-and-end-all of communications policy but rather is the first step towards a top-to-bottom review of the Communications Act. The more the FCC says that what they're doing doesn't need Congressional action, the more they're pissing off Congress and the higher the odds are that whatever work (good or bad) the FCC does will be wiped away by new legislation.

Instead, the FCC should clearly state that America's communications policies do need a comprehensive review and likely reform, that Congressional action will ultimately be needed, and that the FCC is setting off to start that process of identifying the issues that most need to be addressed. In this way, while it may take a bit longer to make progress, the progress we make should be more significant and more likely to be permanent.

As a final thought on this subject for now, I can't help but express my disappointment that the FCC's national broadband plan was largely silent on the topic of Congress revisiting the Communications Act. Yet again we're seeing the shortcomings of a plan that's neither comprehensive nor a real plan. Imagine how the dynamics of this debate would have shifted if the FCC would've really taken up these larger issues, established a framework for what's needed moving forward and what's missing now, and suggested a path through Congress for making the changes that need to be made.

Instead, despite having a national broadband plan that's less than three months old, we're essentially starting this debate over broadband regulations from scratch, with little serious intellectual groundwork for new legislation to be built upon. I can only hope that this won't prevent us from making the progress that's needed.

But regardless of these laments, moving forward the only path I see towards making lasting positive changes to how America regulates broadband is one where the FCC and Congress work together, where we endure this battle as one government and one nation rather than attempting to fight the same fights on multiple fronts without coordinating these efforts.