FCC Retains Important Wireless Role Post-‘Comcast,’ Advocates Say

The FCC’s scramble to find authority for ambitious programs after the Comcast decision doesn’t mean its authority over wireless services and devices should be doubted, advocates told the State of the Mobile Net conference in Washington late Wednesday. The FTC can keep its existing limited authority in wireless, mostly concerning data’s trip “back to the mother ship” from devices, without butting into crucial FCC authority over standards-oriented practices, said Harold Feld, legal director at Public Knowledge.

More FTC authority at the expense of the FCC is preferable, said NetChoice Executive Director Steve DelBianco, whose group represents Yahoo, News Corp. and eBay among other e-commerce players. Exploiting a typo in the panel description, DelBianco set up a “who’s on first” joke that had the FCC “picked off at third” by the U.S. Court of Appeals for the District of Columbia Circuit and the FTC waiting on second. The FTC would get expanded rulemaking authority under the House-approved financial protection bill, which generally worries the e-commerce industry, though it still supports expanded enforcement resources for the agency.

Former FTC Consumer Protection Bureau Chief Howard Beales’ test for weighing regulation would fit wireless well, DelBianco said: whether there’s substantial consumer injury that outweighs “countervailing benefits,” such as higher network speed for most through traffic management of some, and injury a consumer can’t avoid. “We have an agency that protects consumers regardless of the medium” and it needs more resources, he said.

Feld disagreed the FCC had been “picked off.” The agency arguably has authority over geolocation services because it’s “adjunct to the carrier function” under the E-911 mandate, Feld said, to give one data-oriented example. “The more consumer watchdogs we have out there, the healthier” the market is. “The goals of net neutrality are still important” after the court’s narrow ruling that the FCC needs to base its broadband regulation on an “express delegation” of congressional authority, said Joel Kelsey, policy analyst for Consumers Union. The wireless industry has grown by “leaps and bounds” but lacks sufficient competition, he said. As consumers ditch landlines, their frustrations with wireless -- declining service quality, rising early-termination fees and heavy overage charges -- will grow as well, showing the FCC’s continued relevance, he said. But a GAO survey last year said more than four in five consumers are “somewhat or very” satisfied with their wireless service, said Jackie McCarthy, CTIA state regulatory affairs director, calling it evidence the industry is responsive to concerns.

Text, data and voice increasingly are bundled and sold on the same platform, potentially bringing all under the FCC’s voice authority, Feld said. The FCC’s roaming NPRM could start to answer those gray areas, he said. It’s “disingenuous or ignorant” to imply the FTC’s unfairness authority would have better decided how to judge Comcast’s treatment of BitTorrent traffic, he said, alluding to DelBianco’s example of the typical BitTorrent user hogging bandwidth to download illicit movies. Considering the FTC’s charter, it would be a “disaster” for consumers to complain and seek redress for voice and data problems from two agencies, Kelsey said. Short codes certainly fall under FCC authority, said Feld, but McCarthy said application providers and aggregators are part of the market too, complicating the authority. The Mobile Marketing Association is addressing problems through best practices, she said.

Consumers understand the difference between the carrier and the application provider, Kelsey said. The FTC could oversee the latter, especially now that the agency is evaluating the continued viability of the notice-and-choice privacy framework, which should take mobile devices into account, he said. But that risks setting up a “balkanized system of enforcement authorities” if activities traditionally regulated by the FTC come under FCC jurisdiction simply because carriers are involved, DelBianco said. It’s better that the FTC regulate geolocation where applicable, such as in its current review of Children’s Online Privacy Protection Act regulations, though only where it has specific authorization from Congress, he said. The FTC is “not exactly shining” in its responsiveness to advocates’ requests for privacy review, Feld said.

It’s dangerous to leave regulators “untethered” from congressional authority, said Berin Szoka of the Progress & Freedom Foundation from the audience. “The FCC threw out every theory they could possibly think of” to regulate network management, and if the House financial bill becomes law, the FTC will have similarly unbridled power, he said. The question is “what do you fear more,” a “dysfunctional” Congress and increasing concentration in the market, or an agency that sometimes oversteps its boundaries, Feld said. Congress can set the “outward boundaries” for agencies but they should have latitude, Kelsey said. Consumers Union supports the House financial bill and thinks the FTC could have mitigated the financial meltdown if it had broader rulemaking authority then, he said.