Federal Communications Commission chairman Julius Genachowski could not get away from the legal authority question today in his testimony before the House Sub-committee on Communications hearing on net neutrality. Mr. Genachowski was asked whether the FCC’s net neutrality rule would be able to withstand a legal challenge. Mr. Genachowski, without hesitation, answered in the affirmative.

His colleague, Robert McDowell answered, also without hesitation, in the negative. Mr. Genachowski’s assessment is based on his legal team’s assurances as well as his interpretation of past precedent.

Fair enough. But with Verizon and MetroPCS’ lawsuits challenging those very rules, a more definitive answer will be forthcoming and hopefully soon enough to save Congress the hassle of coming up with a statute should the decisions go the right way. Ooops. I mean against the FCC.

It seems that Federal Communications Commission chairman Julius Genachowski may have made a slight right turn to the middle when he told staff at The Hill that regulations, specifically on the state and local level were slowing down deployment of broadband facilities.

Mr. Genachowski will get no arguments from me on that one. I’ve seen how local governments can slow down broadband facility deployments. Local governments particularly leverage the federal telecommunications act, state laws, and their local ordinances to negotiate franchise agreements that would make Tony Soprano proud.

I fully understand why most consumers wouldn’t shed a tear for cable providers, but when local governments shake down a cable company for state-of-the-art television studios, funding for production facilities on local community college campuses, and institutional networks to connect up local government buildings, those costs get passed on to you.

And guess what? Those costs are in addition to the five percent that local and state governments are allowed to collect as franchise fees. Just take a look at your cable bill, right before your blood boils.

What Mr. Genachowski appears to have done in his interview with The Hill is artfully move the argument from the federal side to the local and state side. If I were in the room with the G-man, I would stop him and say, “buck up, now, Mr. G.” Let’s not forget that you and the Congress can do a couple things to rein in the states.

One example is to shorten the statutory approval timeline for a franchise agreement. Another would be to expressly state in the statute that franchise terms and conditions should be directly related to the cost of maintaining rights-of-ways, including poles.

Dumping the delay in the deployment process solely on municipalities and states is not the adequate deregulatory framework we need.

Valentine’s Day is right around the corner and even an old grouch like me can appreciate a good laugh; just like the chuckle I got out of listening to Federal Communications Commission chairman Julius Genachowski’s February 7^th speech before the Information Technology and Innovation Foundation.

As a precursor to today’s notice of proposed rulemaking on converting the universal service fund from a telephone subsidy mechanism to a broadband subsidy mechanism, Mr. Genachowski noted that a big problem with the universal service fund is that it’s inefficient. As an example, he described universal service subsidies of $2,000 a month for telephone service in rural areas.

You heard me. Two thousand dollars a month. What sticks out in this example is a decades long problem with universal service that will only be exacerbated by using the funding for broadband. The problem that sticks out is that regulators, whether federal, state, or even local, are so ivory tower in their approach to universal service that they have no concept of the term, marketing.

You see, Mr. Genachowski, low-income consumers don’t know about these programs. The FCC, state PUCs, and local consumer affairs offices never made it a point to hit the pavement and stick a brochure describing Lifeline or Linkup to a single parent working two jobs while trying to feed and school two kids. My impression has always been that it’s too beneath these regulators to learn about and sell these programs.

In other words, if you want the costs per household of subsidization to come down, shouldn’t you increase the number of households participating in universal service programs? Just imagine what these costs are going to be when you try to subsidize broadband service to households who don’t believe they need the Internet?

My mother, a 67-year old grandmother who lives alone, called me about her cell phone bill. She was “shocked” at the 30% increase in the bill amount. A couple days later my sister, eight-year old son, and I stopped over to my mom’s place and the subject of the bill came up. My son, who is shock averse, quickly dispatched himself to the back room to watch Sponge Bob Square Pants. After an hour or so we came up with a strategy for working around any future “bill shock” problems.

My mother, who only has a high school diploma from night school, determined that given her calling behavior and the number of local, long distance, and international calls she makes, plus her mobility, that an alternative combination of existing telecommunications services could best be employed to avoid any future “bill shock.” Applying the alternative services, she is now able to make more calls anytime she likes at a lower price.

My mother is the example of a proactive consumer. This is a far cry from the “Ooops, I messed up so let me blame someone else” consumer that Federal Communications Commission chairman Julius Genachowski appears prepared to defend. Consumers like an executive Mr. Genachowski referred to in a speech on bill shock three months ago. It seems that this executive was shocked that his cell phone bill would run a couple thousand dollars after transferring data overseas.

I repeat. Overseas. You would think that an educated international jet setting executive would have the presence of mind to expect that in a foreign jurisdiction there would be different rules regarding telephone rates just like there are different prices for eating overseas.

Yet, Mr. Genachowski would like the mobile telephone industry to find more ways to use technology to alert consumers when they may be going over their minutes based on his executive‘s dilemma and other outlier consumers. And lets not forget driving up our cell phone bills in the process.

Heck. I was under the impression that we were running out of spectrum. I may have been wrong.

Look. I have no problem with cell phone companies disclosing their rates, terms, and conditions each month in cell phone bills. It is a bit much, however, to require them to reconfigure their billing systems to send me an alert about possibly going over my minutes of use limit when all I have to do is look at the clock on my phone, determine how long I talked, and subtract the talk time from my monthly minutes.

We already have the technology for knowing when we are running out of minutes. It’s called our brains and eyes. I don’t want another line item that says “bill shock avoidance fee” on my bill either. Besides, doesn’t everyone have a sexy female voice on their phones telling them how many minutes they have left anyway?

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In December 1944, General Anthony Clement McAuliffe was in command of the U.S. Army’s 101^st Airborne Division. He and his troops were surrounded by Germans in Bastogne, Belgium. The Germans demanded that General McAuliffe surrender his troops. In response, General McAuliffe uttered one of the most famous quotes in American history: “Nuts.”

I couldn’t help but think of this response as I read James Rucker’s piece in The Huffington Post. I respectfully acknowledge Mr. Rucker’s passion on net neutrality, but at this juncture one must question why he and his fellow advocates insist on taking the low road in the face of certain political and economic realities.

We are now facing a national unemployment rate of 9.8%. The unemployment rate among black Americans has climbed to 16% in November from 15.7% in October. The technology sector is gaining because any productivity increases of note are partially attributable to the use of technology. The tech sector is one of the few areas of the economy that needs an influx of human resources.

Yet, instead of using their finite resources to promote employment and production in an area they claim to know well, the net neutrality posse focuses on responding to nonexistent personal attacks and worse yet making personal attacks.

FCC Chairman Julius Genachowski has grudgingly begun to see the light of the middle road. As the light dims on the 111^th Congress, Mr. Genachowski knows he needs to get to the end of the tunnel before the 112^th Congress turns off the lights.

I think it’s time that the advocates for an open Internet salvage some type of victory by joining Mr. Genachowski in the spirit of compromise. If not, your credibility will meet its own Pearl Harbor.