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Editorial: Weighing the ‘C’ Word

FCC chairman Tom Wheeler has said he is not opposed to Congress providing more guidance on the FCC’s authority to enforce open Internet rules.

Now is a good time for Congress to take him up on the offer.

The FCC’s decision to reclassify Internet access service as a common carrier under Title II regs, undoubtedly fueled by the laudable ends of openness and innovation, has led to a flurry of lawsuits that will tie up the issue for years and likely land it in the Supreme Court.

At stake is what authority the FCC has to regulate access in service of openness. The clearest answer to this has to come from Congress. There needs to be bipartisan support for a bill that would prevent the blocking and degrading of content, stop paid prioritization and avoid the nuclear option of Title II.

What Democrats in Congress want is certainty that those things are clearly prevented. A law has been proposed that would do that without Title II. Title II is only the means, not the end.

But one of the sticking points in the Republican-backed bill is that it would limit the FCC’s authority under Sec. 706, saying it is not in itself an express grant of authority. The FCC has been using Sec. 706—which instructs the agency to take whatever steps necessary to insure advanced telecommunications is being deployed to all Americans in a reasonable and timely manner—to support various regulatory moves, from expanding Universal Service Funds to broadband, to boosting speeds to at least a portion of the new open Internet order.

So we have a suggestion in the interests of—brace yourselves—a compromise. Yes, we know, that’s a dirty word in D.C. these days, with Congress hardly agreeing on anything beyond the flag’s colors and new names for post offices.

Here’s the suggestion: Remove the language in the bill that would weaken Sec. 706. Republicans have arguably compromised already by agreeing to legislate open Internet protections proposed by President Obama and network neutrality activists. Dropping the Sec. 706 language would be another step toward the center. Democrats should sign on, and then Congress should pass it. The president should declare victory in legislation that enshrines those protections in law. And cable and telco operators could, and almost certainly would, drop their lawsuits.