The FCC’s “Hotel California” Moment

Mytheos Holt
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Posted: Dec 04, 2015 9:32 AM
The FCC’s “Hotel California” Moment

The Federal Communications Commission, like most Federal agencies, has gotten worse at its job under Barack Obama. So much worse, in fact, that Republican Senators have had to send a letter to them asking if they’ve even acted on half a million consumer complaints. Even the worst tech support line in the world would regard that sort of figure with horror.

Yet, for those paying attention to the tech world, the FCC could also be poised on the brink of a massive power grab over one of the most significant areas of Americans’ lives in the present day: the future of wireless internet itself.

Specifically, the FCC may very well be invoked as a regulatory agency to handle the emerging fight over the new “LTE-U” technology. Without boring readers with too many details, LTE-U is a form of technology being developed by companies who claim it will ­­give their customers much faster internet connections. This shouldn’t be a problem, except skeptics claim that the way it does this is by cutting everyone who’s not a customer of one of those companies off from the internet altogether.

Needless to say, the potential for this kind of anticompetitive behavior has provoked a high stakes fight. Companies like Google and Comcast on the skeptics’ side are vying with equally powerful entities like AT&T, and T-Mobile on the pro-LTE-U side. With that much money and market share in the mix, Washington was bound to get involved eventually.

Now it has. As POLITICO notes, the two sides were recently invited to hash their differences out in front of a closed door session of Congress for the second time since the fight began. It seems to have gone about as well as you’d expect. Which is to say that the supporters of LTE-U at least agreed to get their technology tested, but now the fight has simply shifted to being over who should do the testing.

Now, you’ll notice the problem right away. What we have here are two teams in search of an impartial umpire. Cue the FCC waving its hand in the air proclaiming, like some sort of bizarro pro-government Katniss Everdeen from the “Hunger Games,” “I volunteer as tribute!”

Unfortunately, as any conservative knows, the FCC, like most government agencies, is no Katniss. If anything, it’s a less competent version of President Snow, with a more rapacious lust for power. And to make matters worse, the FCC has already begun flexing its muscle to try to show it can act as a protector of wireless users – a sure sign of regulatory creep to come. Specifically, they’ve targeted hotels like Hilton, who apparently made the genuinely sleazy move to try to block personal Wi-Fi in order to force users onto their services. This is hardly the first anticompetitive move by the hotel industry, which has also tried to shut down third party booking sites using technophobic and baseless claims of fraud, and on one level, it’s relieving to see the FCC actually doing its job, for once.

But as anyone who’s ever dealt with a government agency after a mistaken power grab knows, trying to undo that power grab is reminiscent of the infamous “Hotel California” hook: “You can check out anytime you want, but you can never leave.” And while it’s relieving to see, the FCC’s taking on the predatory hotel industry, the fact is that taking on hotels blocking Wi-Fi signals and refereeing the fight over LTE-U aren’t just different ballgames: they’re different sports.

Why? Because whereas internet access is an incidental feature of hotels’ business models, and thus a space that they barely play in, the companies backing LTE-U, and the ones opposing it, owe their very livelihoods to the technology that makes wireless internet possible. If Washington gets directly involved, they’re going to throw around money and political muscle that would make your average FCC regulator’s head spin. To put the FCC in charge of negotiating this fight because they handled hotels well is rather like putting a beat cop who caught one drug dealer in charge of cracking down on gang wars between entire cartels. They simply are not prepared to operate at this level.

None of this will stop the FCC from trying to step in if negotiations get too tense between the actors in the LTE-U fight. As Rahm Emanuel says, “never let a crisis go to waste.” But that doesn’t mean conservatives have to stand by and let them make hay from this particular crisis. As another scholar correctly notes, the best route for Washington here is to let everyone work this out for themselves in the private sector – not an uncommon best option, but a particularly obvious one here.

In short, to prevent the FCC from handling the future of Americans’ wireless internet with their “check out anytime you want but never leave” style of regulation, the best thing is for them to never check in at all.