FCC's Net Neutrality 'Gatekeeper Theory' Rewrites Competition Law, Campbell Says
The FCC during the Obama administration rewrote competition law by using a "gatekeeper theory" to justify net neutrality regulation instead of using "market power" analysis, said Fred Campbell, Tech Knowledge director, in a blog post Wednesday. "The FCC’s gatekeeper theory…
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posits that even an internet service provider (ISP) without market power has the incentive and ability to 'force edge providers to pay inefficiently high fees because that [ISP] is typically an edge provider's only option for reaching a particular end user,'" he wrote, quoting from a 2010 net neutrality order. He said the commission found the consumer cost of switching from one ISP to another is too high to permit competition to properly discipline the market: "In antitrust terms, net neutrality categorizes vertical relationships (e.g., exclusive contracts) between ISPs and edge providers as harmful per se. This per se ban on vertical relationships is inconsistent with longstanding FCC precedent, congressional findings embodied in communications legislation, antitrust law, and relevant court decisions."