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The birth of an activist FCC?

By: Scott Bradner

The latest news out of the normally sluggish FCC is quite a change of pace. Just 3 days after the New York Times ran a story on Apple refusing to carry Google Voice in the iTunes App Store for the iPhone the FCC started asking questions about it -- the FCC was looking to dance without even waiting to be asked. I will say that I'm a bit worried for the toes of its reluctant dancing partners.

According to press reports (http://www.networkworld.com/community/node/43920) the Google Voice rejection had actually happened a few weeks earlier but the news broke on July 28th with stories in the physical-world Times and on a number of news websites. On July 31st the FCC sent letters to Apple, Google and AT&T asking some pointed questions about what happened. As far as I can tell no one formally asked the FCC to get involved this time. The FCC had been asked by Skipe back in February 2007 to take a look at the same sort of thing. (http://svartifoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518909730) But that request seemed to just fade away after the FCC asked for comments on Skipe's request, which the FCC had assigned the identifier "RM-11361." There were some press reports at the time that the FCC had rejected the request but that might not be the end of the story.

The FCC asked Apple why the Google Voice application had been rejected, if Apple had acted alone or did AT&T have anything to do with the rejection, in general what power does AT&T have over what applications are accepted, what other application have been rejected and why. (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1736A1.pdf) Apple may have its work cut out for itself to explain just how the evaluation and approval process runs since, by all reports, Apple has raised capriciousness to an art form in the way it runs the App Store.

The FCC asked AT&T some of the same questions about AT&T's power over what is accepted in the App Store and also asked about any other VoIP applications running on other AT&T phones, and about any limitations AT&T has stuck in user agreements. (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1737A1.pdf)

Finally, the FCC asked Google for a description of Google Voice, what Apple had told Google about why Apple had said no to Google Voice, what other applications Google had in the Apple App Store and what process Google uses for applications in its own App Store for the Android phones.

(http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1739A1.pdf)

In each case the FCC also asked some other questions, but the above lists cover the high points. The FCC asked for answers by August 21, 2009 and told the companies that the companies could ask for parts of their responses to be kept confidential as long as the requests for confidentiality met federal requirements. (http://edocket.access.gpo.gov/cfr_2007/octqtr/pdf/47cfr0.459.pdf)

Meanwhile, the FCC had opened a exploration about handset exclusivity (see http://www.networkworld.com/columnists/2009/062909bradner.html and http://edocket.access.gpo.gov/2008/pdf/E8-25058.pdf) This effort was assigned the identifier "RM-11497."

The reason I bring up the identifiers is because the FCC used both of these efforts in the opening paragraph of its letters about Google Voice. The FCC said "In light of pending FCC proceedings regarding wireless open access (RM-11361) and handset exclusivity (RM-11497), we are interested in a more complete understanding of the situation."

Sorta looks like the Skipe request is not quite as dead as it looked. I will say that I'm of a rather mixed mind on this new FCC activity. As a general rule government regulations do not make the world go smoother. But sometimes they are needed - for example rules against lead paint on kids toys. I can see where rules from the FCC that limited the reasons that an Apple or AT&T could block applications and usages of networks would be a good thing but rules limiting what you and I can do with that connectivity would not be so good.

disclaimer: Part of education in a place like Harvard is to let students that there are rules but I've not seen a university opinion on the FCC's rulemaking prowess so the above worry is mine alone.