He explains: “Heavy-handed prescriptive regulation can chill investment and innovation, and a do nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead to reduced investment and innovation.”

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But Genachowski believes some regulation is needed, insisting that is “widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, as well as the ability to develop policies aimed at connecting all Americans to broadband, including in rural areas.” Ditto for “basic” consumer protection against anti-competitive behavior.

And he is stuck with the results of Comcast (NSDQ: CMCSA) v. FCC, stemming from a 2002 decision to treat ISPs as information services, not telecoms, under the Communications Act. That classification was based on the idea that the FCC could use “ancillary” authority to manage info services if need be, something the court struck down. Keeping ISPs as info services would also keep it in a legal loop, he contends; switching them to Title II status with telecom would stop the legal cycle but subject ISPs to “extensive regulations ill-suited to broadband.”

The staff solution: a third way that puts broadband transmission services in the telecom category, renounce inappropriate sections, and protect against “regulatory overreach.”

It’s far from a done deal. This is the FCC, so it starts with a comment period. It’s also not a unanimous recommendation: the Republicans of the FCC already have issued a dissent. Commissioners Robert McDowell and Meredith Atwell Baker called the proposal “disappointing” and a “stark departure” that would “usher in a wave of regulatory uncertainty.” As for the Dems, Commissioner Michael Copps would rather see full Title II coverage but will support it. Same for Commissioner Mignon Clyburn.

The cable operators are going for a “we’re disappointed” and “we’ll work with them” attitude so far. We’ll hear more from them and Genachowski during The Cable Show in LA next week. For “net neutrality” proponents, it’s not enough; for opponents, it’s too much.

But Genachowski needs to pull this off—or a variation of it—if he wants to see his national broadband plan make it to reality.

Broadband Framework Genachowski FCC