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.

Senator Tom Udall, Democrat from New Mexico, described reclassification of broadband access services as one clear path to ensuring an open Internet. Maybe the esteemed senator has been inspired by the sunny skies, and mild, semiarid climate of his great state to give such a ringing endorsement of reclassification.

I, on the other hand, see reclassification as a dusty trail upon which industry would have to navigate through the high plateaus, mesas, mountain ranges, and canyons that New Mexico is also known for. Reclassification, like any additional regulation, invites that great regulatory mountain lion, uncertainty, into the environment.

For example, how broadband access service is viewed in terms of its use has been determined by the consumer. Consumers don’t look at broadband as telecommunications.  Telecommunications is for making telephone calls; two-way conversation. Consumers view Internet access as a way to get information electronically and don’t expect a conversation when getting that data.

Treating broadband access like telephone service introduces rate regulation on both the federal and state level. Decisions will have to be made on whether a broadband access pipe should receive price cap treatment or rate of return treatment. Broadband access lines will now be subject to subscriber line charges, the payment for the privilege of accessing long distance services.

On the federal and state levels, the issue of interstate and intrastate compensation will have to be addressed. How will carriers bill each other for Internet traffic received and handed off to end users? Will the states simply let this new funding stream for their universal service programs slip through their fingers?

On the local level, municipal governments may now view broadband access lines as fair game for the application gross receipt tax . Other utility charges may apply as well. If we believe that local and state governments will not find an excuse to apply additional taxes, especially as their budgets are subjected to fewer revenues, think again.

No, Senator Udall.  Reclassification is not a clear path.  If anything, it’s a drive along a mountain road where one wrong turn can send you into a canyon.

“To the extent that any FCC chairman has any political capital, they have it in their first year,” said Derek Turner, research director at Free Press, as quoted by The Wall Street Journal. At 15 months or so into the job, Federal Communications Commission chairman Julius is out of political capital alright.

The FCC right now looks like a shooting range with spent cartridges laying around and staffers reeling in those paper targets showing nary a shot hitting the center. Between putting together a national broadband plan, delivering it to Congress late, drafting net neutrality rules, and scheming to circumvent Congress with a plan to reclassify broadband access as telecommunications, Mr. Genachowski has nothing to show for it.

Free market conservatives want the FCC reeled in while left-wing, regulation-favoring liberals see Mr. Genachowski as abandoning the Obama agenda on net neutrality. No, he can’t win for losing.

So, how did Mr. Genachowski blow his wad of capital? He presumed the broadband access market needed to be regulated because we are allegedly number 19 on some global list. He presumed that companies like Verizon that spent billions of dollars rolling out Fios to customers demanding broadband weren’t capable of exercising business judgment when delivering broadband services. Mr. Genachowski erred by sending loud, clear signals to Congress that he was going to reclassify broadband access as telecommunications, in spite of a court ruling saying that he needed Congressional authority to do so.

In short, Mr. Genachowski lost his capital when he forgot to read his copy of the Constitution and failed to give free markets a chance.

Henry Waxman understands the dilemma the Democrats face this November. With the public showing its growing displeasure with the overly interventionist initiatives of the Democrats, the last thing the Democrats need is the FCC implementing a vice-grip on the broadband access market; a grip that would eventually harm consumers with higher prices and fewer innovative products.

Waxman’s middle of the road approach honestly surprises me, but I respect his attempt to codify what’s already being done in terms of network openness. Not applying the four principles to mobile access makes sense. Why stifle innovation in the wireless broadband market now, especially given the FCC’s recent reaffirmation of its rules that open up white spaces to mobile broadband access providers. Let the wireless market blossom before trying to place brakes on it with unnecessary regulations.

The irony of Mr. Rockefellers preference for reclassification of broadband access effectively as a telecommunications service is that the regulatory burdens that would follow with such regulation would have a negative effect on minority access to the Internet. A disproportionate number of African American and Hispanic households access the Internet via wireless devices. Burdening wireless broadband access service with onerous Title II rules will make mobile access more expensive for these communities.

I once met Representative Roscoe Bartlett, Republican of Maryland, in 2002 during the state Republican convention. The subject of the U.S. Constitution came up. That’s when Mr. Bartlett informed us that he always walked with a copy of the document for quick reference.

I wish some of my net neutrality friends would do the same. Arguing that the Federal Communications Commission can just go and reclassify broadband access as Title II without the authority of Congress is political suicide. In addition, it’s administrative waste.

Two things would come from such a move. First, the FCC’s decision to reclassify would be reversed. The FCC would be required to show, pursuant to Comcast v. FCC, that there was some change in how consumers view Internet access. In other words, do consumers view Internet access as more than just an information service? Do consumers still separate telecommunications from the provision of e-mail? If yes, the Congress and the courts will reverse the FCC.

Second, the FCC will look ridiculous. The credibility they need for other areas such as merger review, universal service reform, and inter-carrier compensation reform will be damaged. Their brazenness will make them a laughing stock on K Street, Wall Street, and Main Street. Bourbon Street may be the only place they’ll have as a legitimate home if they pursued the ill-advised course of reclassification without congressional authorization.