In a recent Guest Observer written for Roll Call, my friend Tyrone Brown, a former Federal Communications commissioner and a Minority Media and Telecommunications Council Advisory Board member, stated his belief that FCC Chairman Julius Genachowski’s proposal for a regulatory “third way” on net neutrality does what Congress wants. With the greatest respect, I disagree. A majority of the Members of Congress have cautioned the FCC on pursuing this regulatory approach.

[IMGCAP(1)]In his piece, Brown states that it is the desire of those skeptical about some aspects of net neutrality to have a “toothless” FCC that is “powerless to address consumer privacy needs.” But that’s not what the MMTC, most of the mainstream national civil rights organizations and the Communications Workers of America want at all. Of course we want the FCC to have jurisdiction over broadband, but first we want Congress to establish limits and expectations for how the FCC would exercise that jurisdiction. Congressional action would reduce litigation risk, enhance investment potential and ensure that no future FCC could forbear from applying civil rights mandates, such as the FCC’s duty to eliminate market entry barriers facing minority and female entrepreneurs.

The “third way” rests on a bed of Title II common carrier regulation, with forbearance from all but six or seven provisions. Without Congressional direction, forbearance is a moving target. While President Barack Obama’s FCC probably will observe civil rights mandates, this is not a guarantee for all future presidential administrations.

And surprisingly, the FCC wants to disallow price incentives and incubation programs that would stimulate minority broadband entrepreneurship. Here we are, at the dawn of the digital age, with minority and female digital entrepreneurs largely shut out of access to capital, contracting, advertising and employment opportunities in Silicon Valley-based firms. That’s unacceptable, and the “third way” would make it even worse.

That’s why Congress needs to step in and make sure that this FCC, and future commissions, will enthusiastically and aggressively apply civil rights protections and develop new ones tailored to the digital age. Opponents of Genachowski’s proposal are looking for a steady but not heavy-handed FCC to oversee the Internet as it grows and develops into an even more powerful force in the life of minorities and all underserved Americans.

I hope that the FCC will listen to Congress and turn its attention toward larger Internet issues. These include the two most urgent broadband policy issues the country faces: expanding the availability of high-speed Internet service to minority and underserved communities and making it more affordable for all.

The most immediate step forward would be for Congress to begin work on updating our outdated communications laws. As Brown writes, the Telecommunications Act was last revised in 1996. Good point.

It’s the understatement of the decade to say the Internet has changed since 1996. Yet broadband is not yet accessible or affordable to many minorities and the underserved. A new law would encourage the deployment of wired, wireless and satellite broadband in minority, underserved and rural areas that have missed a good portion of the Internet’s development up until this point.

On this point, there is widespread agreement. The FCC’s first-rate National Broadband Plan contains solid recommendations for reaching these historically underserved populations, such as the expansion of digital literacy programs and the repurposing of the Universal Service Fund. The plan also has realistic ideas for improving America’s wireless coverage, noting that our finite spectrum capacity is clearly not being put to the best use.

Rather than fighting yesterday’s battles on net neutrality, the FCC should look to Congress and to the future to solve the bigger problems of access and affordability, especially in minority and underserved communities. With strong support from across the political and technological spectrum, no one will be neutral about that.

David Honig is the president and executive director of the Minority Media and Telecommunications Council.