House Judiciary Net Neutrality Hearing Expected to Rehash Prior Debate

Prepared testimony on behalf of Ohlhausen and McSweeny outlined recent FTC actions. The testimony noted support from Ohlhausen and the Consumer Protection, Competition and Economics bureaus for FCC rescission of its 2015 net neutrality rules and related reclassification of broadband as a Communications Act Title II service. The agency noted McSweeny's opposition to the FCC May NPRM.

FCC rescission of the 2015 rules and Title II reclassification “will restore the FTC’s jurisdiction and make clear that time-tested antitrust and competition laws will continue to apply, thus giving market players in the Internet ecosphere the certainty and freedom to invest, innovate, and prosper,” said McDowell, a former FCC commissioner. “History has proven that the policing of Internet markets by the DOJ and FTC produces the best results.” The FCC “should also make clear that Internet access services are inherently interstate in nature and that only federal rules apply,” McDowell said. “A disturbing trend has developed where states and localities have tried to regulate many aspects of the broadband market.”

"Fundamental consumer protection and retail marketplace competition issues are more appropriately overseen” by the FTC, “better-versed in such issues and expert in the oversight of mass-market services generally and can 'see across industries,' than by the FCC,” Romano said. “This would continue to provide consumers with robust and reasonable protections.” The FCC “can and should certainly be an expert resource for and partner to the FTC to the extent that unique questions regarding communications policy might affect the retail broadband marketplace,” Romano said. “To subject one segment of a broader 'ecosystem' to differing rules to govern the same data that others also hold only highlights the value and wisdom of having the FTC serve as the primary agency in overseeing all retail marketplace matters of this sort.”

House Judiciary appears to be acting on private sector “frustrations” that Congress hasn't played a more central role in the net neutrality debate this year amid FCC consideration of the rescission NPRM, one communications sector lobbyist said. House Commerce Committee Chairman Greg Walden, R-Ore., and other GOP committee leaders attempted to play an active role, but work on compromise net neutrality legislation and a related hearing have been stalled since late July (see 1707250059, 1707310066, 1708070068 and 1708300050). As that effort “withers on the vine,” House Judiciary is “stepping up their game,” the lobbyist said.

The lack of House Commerce progress on net neutrality in this Congress certainly played a role in House Judiciary's move to hold its own hearing, a Republican telecom lobbyist said. House Republicans want to use the hearing as a forum to argue that “things are even better under ex post enforcement than they would be under ex ante,” the GOP lobbyist said. They also want to “reassure the world that after the FCC rescinds” the 2015 rules, “consumers in the marketplace will be just fine and that they can restore the FTC's jurisdiction.”

Judiciary has a “long history” on communications-related antitrust issues, including on net neutrality, but the committee's interest had “fallen by the wayside in recent years” because of intense scrutiny given to FCC net neutrality rules, which were under House and Senate Commerce committees' clear jurisdiction, a Democratic lobbyist said. Anticipated reversal of the FCC rules prompted the right-of-center telecom policy community to view antitrust as the “proper place” for handling net neutrality, the lobbyist said: “Anyone who thinks the FTC should come into play now” on net neutrality views House Judiciary as needing to assert an oversight role.