The general public probably doesn’t realize that all telecom devices must be approved by the FCC before the devices can be announced, marketed, or sold to the public. These requirements were put in place many years ago at the FCC to make certain that devices were safe, that radio devices don’t exceed legal power limits, and that radio devices use only the radio frequencies that are authorized.

Once a manufacturer has devices that are of a finished quality ready to sell to customers, the devices are sent to the FCC testing labs for approval. It’s rare for devices to fail the FCC approval process, but it does happen – and one has to suppose a manufacturer of a failed devices was hoping for a miracle by sending devices for testing.

This testing is still a vitally needed step, particularly in the wireless world. Devices that go inside central offices, huts, and cellular sites must also pass inspection by Underwriters Laboratories to makes sure the devices are safe. But wireless devices have two big concerns that must be addressed. The first is that devices stay within the spectrum bands they are supposed to use. Now that devices have software-defined antennas it would not be hard for cheap devices to stray out of the authorized band, which would cause havoc in the real world as devices interfered with licensed uses of spectrum – including uses by the military, satellites, and other key users of spectrum. Without testing it’s not hard to imagine cheap foreign cellphones that would blast out signals out of the authorized band.

The other big issue with wireless devices is the power level. We care about the power level for a bunch of reasons. First is user safety, and one of the reasons that cellphones have been declared safe over time is that they transmit at relatively low power levels. Power also defines how far a signal can propagate. If wireless devices were allowed to transmit at high power levels the signal might carry to the horizon and interfere with other uses of the frequency. Limiting the power of devices is one of the key ways that allows the FCC to define license areas for selling or awarding spectrum. The ability to limit power is probably the main reason that the FCC has been allowing rural WISPs to use some of the frequency in rural areas that sits idle. If WISPs used too much power they could be interfering with urban use of the spectrum.

The FCC rules are rigid in the process that a device manufacturer must follow. One key aspect of the FCC rules is that manufacturers are prohibited from doing pre-sales or conditional sales of wireless devices – except at the wholesale level. Apple can pre-sale a new iPhone to Verizon, but neither Apple nor Verizon can take preorders from the public. That means that the marketing effort for a new device can’t start until the device passes the FCC tests, and the devices can’t be sent for FCC testing until the devices are retail-ready.

Manufacturers are also prohibited from sending display versions of their devices to retail outlets. People want to see and touch a new cellphone before they order it, but the devices can’t be displayed in a Verizon store until they are approved for retail sales.

Manufacturers have been asking for the FCC to relax these rules so that they can market in the way that we market most things today. The testing delays may have made sense decades ago, but today it adds significant time in bringing new cellphones and other devices to market.

Cellphones are huge business today and it’s a major marketing event when Samsung or Apple announces the next generation cellphones. I have a hard time thinking why Verizon and other wireless carriers couldn’t take pre-orders for the latest phone months before the phones are ready. We now do that with a lot of big-ticket items like the Tesla Cybertruck – people are willing to get on waiting lists long before they can ever buy a new truck. We also now live in the world of Kickstarter where cool new ideas of all kinds are pre-marketed to see if there is enough marketing demand to go to manufacturing.

The big manufacturers like Samsung and Apple are never going to send a phone for FCC testing that doesn’t pass the tests – and they aren’t going to deliver phones to customers until they pass the FCC tests. It’s hard to think of any reason why the cellular carriers can’t take preorders for the latest phone. It’s hard to see what harm would come through taking orders early when customers are fully aware that they have to wait until the new phone is released.

It no longer makes sense to treat FCC-approved devices differently than other electronics. Manufacturers have asked the FCC to allow for waivers from the rules. It’s probably not a good idea to let cheap foreign cellphones be marketed until they have passed FCC muster. But it’s hard to think of any reason why the FCC should delay commerce by not allowing presales of iPhones. It’s time for the FCC rules to catch up to the realities of the marketplace.

One of the oldest tugs-of-war in the regulatory world is a battle between state and federal authority to impose regulations. This has been a constant battle in telecom regulation, but also extends across the regulation of many other industries.

The latest telecom clash between state and federal regulators comes from the attempt of states to implement net neutrality rules. The first state to pass a net neutrality law was California, but this was quickly followed by net neutrality rules in Vermont, Washington, Rhode Island, New York, Montana, and Hawaii.

The California net neutrality rules closely match those that were killed by the FCC in 2017. The California laws were quickly challenged by the US Department of Justice along with some large ISPs. The federal courts upheld the FCC’s authority to kill federal net neutrality but ruled that the FCC didn’t have the jurisdiction to override state net neutrality rules.

This year several industry lobbying groups have banded together and have sued in the U.S District Court in the Eastern District of California to stop the implementation of the California law. This includes the American Cable Association, CTIA — The Wireless Association, NCTA — The Internet & Television Association, and USTelecom — The Broadband Association. Other states have put implementation of state net neutrality rules on hold waiting for the outcome of this latest case.

The line between state and federal regulatory authority has always been a fuzzy one. The plaintiffs in this case argue that the California rules are unlawful because the state is trying to regulate interstate commerce – meaning communication between California residents and Internet servers sitting in data centers in other states. They argue that only the FCC can regulate this kind of traffic.

But the line between state and interstate traffic got blurred a long time ago as telcos and ISPs have implemented centralized technologies. For example, regulators always assumed that states have the authority to regulate telephone features like Caller ID or voice mail since these are sold to accompany landlines, which has always been considered to be under state jurisdiction. However, a close look at the technology used by telcos would show that some functions supporting telephone features are handled in other states. A company like AT&T or Verizon might house the master servers for identifying the identity of calling numbers in a single data center that serves a huge swath of the country. If a computer dips into a data center in Chicago to get the name of a calling party, does that make caller ID an interstate function?

Unfortunately, technology has badly blurred the lines between telecom products that are interstate in nature versus products that are delivered locally or within a state. My guess is that there are very few telecom products left that are purely local.

This kind of jurisdictional argument also raises the specter of carriers manipulating telecom service delivery to avoid regulation. To use my caller ID example, there is nothing to stop a telco from changing the way that caller ID works if doing so can avoid regulation – put the server in another state, and voila – caller ID is an interstate service.

This raises a larger issue to consider. The blurring of state versus interstate products raises the issue of whether states even have a role in regulating telecom services. For example, there are likely almost no web products or connections that completely begin and end within a single state. If the state / interstate issue is defined in the way the plaintiffs are asking in this case, then states likely have no role left in regulating broadband products.

That may be where the courts end up on the question – but that somehow doesn’t feel right. One of the regulatory roles of states is to protect their citizens against abuses by monopolies and bad actors. In cases where the federal government fails to act, states are the last line in protecting consumer rights. I have no idea how the courts will rule in this case. But I have a hard time thinking that states can’t act to make sure that there is no discrimination in the routing of Internet traffic affecting their citizens.

Just as the last change in administration changed the course of the FCC, so will the swing back to a Democratic administration. If you’ve been reading me for a few years you know I am a big believer in the regulatory pendulum. Inevitably, when a regulatory agency like the FCC swings too far in any direction, it’s inevitable that it will eventually swing back the other way.

If I had to characterize the current FCC, the biggest theme of the last four years has been their stances that were exceedingly in favor of the big carriers. In ruling after ruling they helped to fulfill the wish list of the big telcos and cable companies – with nothing bigger than the nearly complete deregulation of broadband. The term deregulation isn’t even the right word because the current FCC took themselves out of the game as regulators. Chairman Ajit Pai has characterized their treatment of broadband as light-touch regulation, but it went way beyond that and the FCC eliminated its own ability to regulate broadband.

A new FCC is almost surely going to try to re-regulate broadband, and they are likely to do so by pushing for the introduction of net neutrality. This is not going to be an easy task. Obviously a new FCC can undo things done by a former FCC, but by completely writing the agency out of the regulatory game, the new FCC will have to start over from scratch. They are going to have to go through the full cycle of steps required to reintroduce any semblance of broadband re-regulation. That means adopting a policy, seeking several rounds of public comments, and then finally voting to reintroduce net neutrality and other broadband regulation. Then will come the inevitable lawsuits that will tack more time onto the process. I’m bettering we’re three years into a new FCC before we see broadband regulation back on the books.

As part of re-regulation process, a new FCC will likely put back the FCC complaint process. Most of America doesn’t realize that the current FCC does nothing with customer complaints about ISPs – complaints are simply forwarded to the Federal Trade Commission.

Hopefully, a new FCC will continue with the process of setting aside unused spectrum for rural broadband. This is one of the few areas where the current FCC stood up to big carriers – but those carriers weren’t really bothered since they don’t use most licensed spectrum in rural markets.

I’m hoping the new FCC takes a hard look at the disaster of broadband reporting and mapping. The current FCC has delayed implementation of new mapping for several years – I’ve always believed that they don’t want to see an honest count of rural homes without broadband because the numbers will be double of what the FCC claims today.

I think a new FCC will update the national definition of broadband. It’s a travesty to continue to define broadband at 25/3 Mbps when eighty percent of America buys broadband from cable or fiber companies. The main outcome of an update of the definition of broadband will hopefully be an honestly count of homes that have inferior broadband. An added bonus will be that slow broadband technologies should stop being eligible for federal grant funding. A new definition of broadband needs to recognize the new crisis of slow upload speeds that have made it so miserable for workers and students send home during the pandemic.

I hope the new FCC gets off the 5G bandwagon. The current FCC blindly followed the administration in pushing the story that America is losing the mythical 5G war. Outside of 5G the current FCC has been in favor of letting the markets solve technology issues. 5G will be whatever it’s going to be, and our national regulators should be not be pushing 5G or hindering it – they just need to stay out of the way of market progress.