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Former FCC Chair Lays Out the Limits on the Agency's Authority

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Regulating big consumer issues such as the availability of Internet apps on mobile devices and metered broadband are outside the Federal Communication Commission’s authority, said Kevin Martin, the former FCC chairman, speaking today in Seattle at the Mobile Broadband Breakfast. Martin, who is now with Patton Boggs LLP, responded to a question about how as networks open up, the activities to keep them closed are being pushed to hardware, by saying, “The further it is pushed out the more difficult it is for the Commission to address it. The FCC’s core regulatory authority is on wireless and carriers, so its direct authority is less and less the further out you go.”

The issue of just how far the FCC’s authority reaches was raised last summer, when the agency opened up a probe into the blocking of Google (s goog) Voice on the iPhone. It turns out that Apple (s aapl) had blocked the application, not AT&T (s T), prompting questions as to what the FCC could really do to force Apple to allow Google Voice on the device. Apple has yet to relent.

Additionally, the FCC doesn’t appear to have authority to stop the recent efforts of carriers and ISPs to introduce metered wired broadband, according to Martin. The Commission can, of course, step in when ISPs discriminate by tying services to required service bundles, but he doesn’t think metering violates any rules.

Martin also praised the potential for more spectrum for mobile broadband, but suggested that more spectrum alone isn’t the key. He said getting traffic off the wireless network faster will help, as will bigger and better fiber connections. Additionally, he said the FCC’s stated goal of providing 500MHz of spectrum to carriers, and its plan to offer broadcasters compensation for relinquishing some of their spectrum, will require changes in the law that only Congress can implement.

Martin steered clear of making judgments on the current FCC, but by delineating the limits of the Commission’s authority, I left feeling doubtful that the agency has the authority to implement some of the policy goals it’s recommending in the National Broadband Plan. I also wish that instead of focusing on things it can’t control, the FCC comes up with a solid plan to address competition in wired and wireline, so that a competitive market can do what the FCC cannot.

5 Responses to “Former FCC Chair Lays Out the Limits on the Agency's Authority”

  1. Heather Tishman

    Martin is right. FCC has no authority to regulate what Apple puts on its phones, and has, under the current regulatory structure, no ability to do anything about ISP pricing structures.

    But even as a supporter of net neutrality and a strong proponent of the flat rate billing model (from an economic standpoint), I’m actually OK with that. The FCC has the authority to do other things that can lead to better market outcomes than device-app blocking and price gouging.

    Stacey has honed in on the central issue here. The National Broadband plan should be about promoting more effective competition — something Martin failed to do when he held the reigns of power. But, it looks like Genachowski’s competition platform will be almost indistinguishable from Martin’s. Which just goes to show that it doesn’t matter which party holds the office, that Chair is ultimately one that belongs to the incumbents.

  2. spirit of the law

    Of course, a telecom lap-dog installed into the FCC specifically to mitigate its influence would naturally question the regulatory domain of the institution he was once brought-in to suppress.