I found listening to Federal Communications Chairman Julius Genachowski’s moderate tone during today’s press conference encouraging. From what we know based on today’s press conference, a reclassification of broadband access as a Title II telecommunications service is off the table. By taking Title II off the table, the FCC increases the perception of its approach to net neutrality rules as middle of the road.

Proponents and opponents agree with the overall concept of an open network, and the Chairman acknowledged that the Internet is currently Open, which has enabled its success today. Openness, as I’ve argued time and time again, adds value to this digital engine of economic growth. The more consumers accessing the Internet and the World Wide Web for digital information, the better.

At the heart of this growth is an innovative, responsive, and daring private sector that relishes in bringing products to as many consumers as possible. Everyday this sector finds ways to make the Internet better and faster than it was before. Everyday, there is a network engineer or an application developer that is designing and building devices that can connect us to the Web and each other in both fun and productive ways. All this growth since that first web page in November 1990 without the burden of excessive regulation.

I hope Mr. Genachowski presents in December rules that effectively maintain the status quo. His rules should be more an acknowledgement and celebration of what the private sector has done in providing mankind an awesome tool for productivity, which he seemed to address in his speech today. His rules should be a reinforcement of existing consumer and privacy protections and not a recreation of the regulatory wheel.

I’ve been really impressed with our judicial system lately. The attempts to expand the interventionist tentacles of government have been thwarted not by Congress or the administrative branch but by the courts.

One of these impressive moments came yesterday when the United States Court of Appeals in the Second Circuit held in Fox Television v. FCC, that the Federal Communications Commission’s policy on decency violates the First Amendment because the policy is unconditionally vague and creates a chilling effect that goes beyond fleeting expletives.

In other words, the FCC has to be more specific in its regulation of decency than just saying we don’t like the use of an inadvertent f-bomb or the accidental baring of a breast at a half-time show.

In arriving at its conclusion, the court made a couple important points. First, the court raised the concern about the risk of subjective, content-based decision-making and its negative impact on the First Amendment. Do we want the FCC to say, “we’ll allow ABC to show a movie where f-bombs are dropped throughout a movie because the movie depicts real events, but we want the f-bombs edited from a documentary on NBC that discusses drug intervention.” Where would the FCC draw the line on indecency?

Second, because the FCC’s standards for identifying indecency are indiscernible, are not clear upon inspection, this alone creates an environment for discrimination against one person’s speech. In other words, I woke up this morning and something about the lines in that documentary rubbed me the wrong way, so I’m going to say it was indecent. Talk about throwing cold water on free speech.

The court only addressed the FCC’s policy. It did not go so far as to call section 1464 of Title 18 unconstitutional. According to the language in the law, “whoever utters any obscene, indecent, or profane language via radio communications will be fined under this title, or imprisoned not more than two years, or both.” The statutory basis for FCC rules on decency still exists.

What will the FCC do next? According to FCC Commissioner Copps, expect the FCC to appeal the decision. The FCC will have its work cut out for it. The U.S. Supreme Court has already showed a preference for corporate speech in its recent ruling regarding limits on campaign donations by corporations. It may not buy an argument from the FCC that it should be allowed to regulate decency on a standard that basically says, we are going to regulate it in this medium but ignore it because it takes place in another medium.

That to me would be indecent.