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

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.