FCC Reclassification Reversal Should Prompt FTC Common-Carrier Exemption Repeal, Ohlhausen Says

(see 1611100041) and questions surrounding the FTC's request for an en banc rehearing of 9th U.S. Circuit Court of Appeals ruling on its fight with AT&T Mobility (see 1611080053), she said Tuesday at an event hosted by the Phoenix Center. “I would hope Congress might consider at least repealing the common-carrier exemption for the consumer protection side,” said Ohlhausen when considering what might follow an FCC Title II reversal. “The problem with the consumer protection side is you don’t have somebody else ready to step into the space.” Ohlhausen is expected to be in the FTC majority next year. She called the exemption “outdated” and referred to the bipartisan objections to retaining it. “The reasons we’re keeping the FTC out of the picture don’t really make sense anymore.” The 9th Circuit ruling “is a broad decision,” she added. “Of course, it is only one court of appeals and we have asked for rehearing.” She has a forthcoming law review article about taking competition seriously in the broadband space, she said, defending the role of antitrust principles playing a “fundamental approach to all industries, including internet industries.” She objects to those who say antitrust only takes economic values into consideration, calling it a “misunderstanding of how markets work.” She also addressed broader antitrust concerns. “I don’t want to see the liability for activity in the economy turn on whether your conduct, your merger goes to the FTC or the DOJ,” she said. “I think that causes a problematic state of affairs and a lack of certainty for companies.” She backed the Standard Merger and Acquisition Reviews Through Equal Rules Act (HR-2745), a partisan measure that passed the House this fall (see 1603230047).