House Antitrust Explores Possible Legislation Amid Rehashed FTC Net Neutrality Debate
Debate at a House Antitrust Law Subcommittee hearing Wednesday rehashed points for and against the role the FTC and DOJ can play in net neutrality, as expected (see 1710310064). Lawmakers did delve into the possibilities for antitrust-related legislation on net neutrality, including FTC commissioners' calls for Congress to eliminate the common-carrier exemption as a means of restoring their agency's authority on net neutrality in the wake of FCC-expected rescission of its 2015 rules and related reclassification of broadband as a Communications Act Title II service. House Commerce Committee work on compromise net neutrality legislation and a related hearing are stalled (see 1707250059, 1707310066, 1708070068 and 1708300050).
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House Judiciary Committee Chairman Bob Goodlatte, R-Va., led subcommittee Republicans in arguing that FCC rescission of 2015 rules could open the door for a return to an FTC role in ensuring net neutrality principles. Those principles “can best be achieved through the vigorous application of our nation's antitrust law and, at most, a much lighter-handed regulatory approach” than the FCC included, Goodlatte said. House Antitrust Vice Chairman Blake Farenthold, R-Texas, was one of several Republicans who called FCC rules a “solution looking for a problem.” Acting FTC Chairman Maureen Ohlhausen and Mobile Future Chief Public Policy Adviser Robert McDowell supported rescission of those rules and the trade commission's return to a primary role in enforcing net neutrality. The FTC can claim authority under antitrust law to enforce net neutrality “if that is what consumers want,” Ohlhausen said.
House Judiciary ranking member John Conyers, D-Mich., led subcommittee Democrats in arguing antitrust law is an “insufficient” basis for ensuring net neutrality. They aren't “sufficiently broad in scope” to fully address net neutrality and would result in a more “cumbersome” process for enforcing the principles, Conyers said. Subcommittee ranking member David Cicilline, D-R.I., argued antitrust laws aren't an effective substitute for “bright line” FCC rules and said it's a myth that consumers would be able to detect blocking and throttling in a way that could lead to actual enforcement in an FTC-led regulatory model. The trade agency doesn't have sufficient subject matter expertise on telecom issues to be an effective enforcer on net neutrality, said FTC Commissioner Terrell McSweeny.
Goodlatte is “open to the idea of amending the antitrust laws, if necessary, to account for the characteristics of the internet” and urged on the “search for a more permanent solution” to the debate over net neutrality. He later pressed Ohlhausen and others on what antitrust-related net neutrality legislation should include, suggesting it could include “anti-blocking, or throttling or [paid] prioritization standards, or even categorical bans.” Farenthold and Rep. Darrell Issa, R-Calif., cited calls to repeal the common-carrier exemption, which has prevented the FTC from regulating telecom companies.
House Antitrust Chairman Tom Marino, R-Pa., told us he also believes “it's a legislative issue, but we have to make sure we get down in the weeds” with all stakeholders because “we can't leave anyone out of this” solution. “We need to make sure this is not complicated legislation” that “you may bring five or six entities together who say this is a great idea but there might be a downside for two other entities,” he said. “I need all the facts.”
Ohlhausen, McSweeny, McDowell and NTCA Senior Vice President-Industry Affairs and Business Development Michael Romano endorsed common-carrier exemption repeal. “That does create a lack of clarity,” Ohlhausen said. She and McSweeny have escalated calls for an end to the rule since a 9th U.S. Circuit Court of Appeals panel cited it last year in AT&T v. FTC. The court reheard the case en banc in September (see 1608290032, 1611020031 and 1709190025). “This is one of these areas where Congress could indeed help out and provide clarity,” Romano said.
Ohlhausen pushed back against Issa's suggestion Congress could “bifurcate” the common-carrier exemption so that the FTC could act against companies “that provide any products or glean any economic benefit other than as a common carrier.” Splitting rather than eliminating it “would take care of some” of the issues the FTC faces “but not all of it,” Ohlhausen said. “It still leaves open the possibility that the FCC could classify wide swaths of the communications network as a common-carrier service and cut the FTC out.” Ohlhausen told Goodlatte she would “be interested in hearing proposals for further changes” to antitrust law that “Congress thinks would be appropriate,” though she believes existing law is sufficient. “I certainly have been supportive of the idea of the transparency requirement” for ISPs “so that they're at least clear to consumers about what traffic-shaping behavior they may be engaging in,” she said.