The Federal Communications Commission’s announcement last week that it will pursue a “Third Way” approach to its oversight of broadband networks has stirred up intense reactions among stakeholders. It is a monumental decision. While the public should be heartened that the FCC did not shy away from its responsibility to protect consumers or bend from the pressure of corporate lobbies, there remain serious concerns about whether the agency's Third Way will be able to deliver universal, affordable Internet access to consumers. Competition, affordability and consumer protection in the broadband marketplace should remain the top priorities for the agency as it moves forward through a summer of hotly contested legal debates. At the end of the day, it is progress toward these goals that will be judged by history.

While many observers have pored over the FCC’s motives for selecting this Third Way approach, below are key observations and arguments regarding the agency’s decision from a consumer advocacy perspective:

Resolving the FCC’s broadband jurisdiction problems now — and quickly — is a reasonable move that will ensure that the National Broadband Plan can be implemented on schedule. This is not about any one narrow issue. And it is certainly not exclusively about Network Neutrality. A stable solution for establishing FCC jurisdiction over broadband networks is critical for the timely reform of the Universal Service Fund, the extension of broadband services to the disabled and the reliable functioning of public safety communications. Stakeholders must not forget the broad consensus that broadband policy is intended to deliver social and economic benefits to all Americans. We can't afford for it to be derailed by special interest squabbles.

The unanimous opinion given by the D.C. Circuit Court of Appeals in Comcast v. FCC dramatically limited the legal foundation for broadband policy under Title I of the Communications Act. The courts essentially forced the hand of the FCC. We are left with an absurd outcome: Under a Title I framework, the FCC lacks reasonable oversight over the dominant communications network of our time. This was not the intention of Congress; nor is it in the best interest of the public.

The FCC’s decision to re-establish authority over the physical broadband networks under Title II of the Communications Act is clearly in step with the law. It is an effort to clean up the mess caused by the Cable Modem Order -- a failed experiment from 2002 that reconstructed broadband policy under a Title I framework. Rather than continue down the same broken path, this FCC is choosing to modernize broadband policy with a sustainable legal framework by reclassifying broadband networks as “telecommunications services” under Title II of the Communications Act. All regulatory agencies rely upon tried and true policies to guide the modernization of rules and to protect consumers as markets evolve.

The steps announced by the FCC do not involve regulating content or applications on the Internet. Rather, the agency is looking to apply basic rules of the road for the physical networks that connect users to the online content of their choice. That simply means that the FCC will see to it that broadband networks — critical infrastructure just like electrical grids and waterways — have the federal oversight that is needed to protect the public interest. The online content offered over this infrastructure, like websites and applications, will remain unregulated just as it has always been. This is, without question, an appropriate position, and is perfectly consistent with the goals of the Communications Act.

The FCC should move quickly and deliberately to eliminate the uncertainty caused by the court's ruling in the Comcast case. It is in everyone's best interest for this legal matter to be resolved without delay. Whatever decision the FCC delivers will certainly be challenged in court. The threat of litigation is not a reason to choose a different path because all paths lead to court. The question is whether the path chosen has sound legal footing.

In announcing its Third Way approach, the FCC is not proposing to apply all of the rules that it currently places on legacy telephone networks onto broadband providers. On the contrary, the agency goes out of its way to explain the drastic limitations that it will place upon its own authority and the extent of its oversight. Using “forbearance” — a tool that allows the FCC to decline to enforce some of its regulations — the FCC is proposing that the application of only a small number of statutory provisions will be necessary for accomplishing its goals and protecting the public.

Law and policy exist to balance the public interest against the special interests of network owners operating in non-competitive markets. The Commission’s broadband policy must ensure that the agency has the tools to promote competition, affordability and consumer protection. The FCC must deliver a policy framework that can achieve these results.