FCC should defer to the autonomy of contract making

Recently, Federal Communications Commission chairman Julius Genachowski voiced his concern that Google and Verizon’s efforts to broker a deal on the transmission of traffic over Verizon’s networks has hampered the FCC’s efforts at coming up with a mechanism for instituting net neutrality. I would beg to differ.

First, I don’t see how an agreement entered into willingly between two non-coerced parties somehow is at fault for a regulatory agency’s failure to address a regulatory matter. While Google and Verizon play highly important roles in content production and content access, both companies are not too big to cause regulatory efforts to fail.

Second, the FCC is still in a position to create an environment of force majeure, where its properly promulgated regulations could nullify an unfavorable agreement.

What would be the best way for the FCC to get to properly crafted rules? Instead of signaling to Congress an ill-advised intent to circumvent Congress by reclassifying broadband access as a telephone service, the FCC should take into account the rightward shift in the House and limit its attempts at net neutrality by proposing legislation that merely codifies the first four net neutrality principles.

Those principles have been abided by the industry for twenty years without fail. Pursuing this true middle of the road third way would lay a foundation for continued cooperation between not only industry and government, but between the two branches of government as well. This approach would also signal a high level of regulatory certainty in the financial markets.

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