Throttling, Blocking Wouldn't Necessarily Violate FTC Rules, Simons Says
ISP blocking, throttling or paid prioritization policies aren't necessarily violations of FTC antitrust rules, said Chairman Joe Simons at a Free State Foundation conference Tuesday. Such conduct would need to have involved consumer harm or deception to trigger FTC enforcement actions, Simons said. “We would take action against ISPs if they block applications without adequately disclosing those practices or if they mislead consumers.” Under FCC Communications Act Title I net neutrality rules, the FTC has such authority, which some backing Title II want returned to the FCC. A bill to do that was marked up Tuesday (see 1903260064).
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The FTC would examine what sorts of claims ISPs made about their throttling practices, and whether it offered countervailing benefits, Simons said. The FTC has taken action against throttling in the past, as it did against TracFone, Simons said. Congress should give the FTC additional authority to enforce open internet policy, such as the ability to seek civil penalties, he said. Internet privacy laws should be very specific, because uncertainty could make it difficult for the FTC to penalize apparent violators, he said.
There's wide consensus throttling and blocking aren't desirable, said Georgetown Law Institute for Technology Law & Policy Fellow Gigi Sohn. The heart of the net neutrality debate concerns the reach of the FCC's authority rather than those issues, she said. Cooley's Robert McDowell agreed. He said Title II advocates like Sohn had changed their position over the years, leading to “tremendous uncertainty.”
Several speakers endorsed congressional action on privacy and decried state and local policies. Industry shouldn't have to face a “balkanized patchwork quilt” of local rules, McDowell said. Though he believes in state's rights in other matters, FCC Commissioner Mike O'Rielly said the internet is a global network that shouldn't be hampered by arbitrary local borders. State and local internet rules should be “punted out of existence,” O'Rielly said. Verizon doesn't want conflicting state privacy regimes but would welcome state enforcement of a national framework, said Senior Vice President-Federal Regulatory and Legal Affairs Kathleen Grillo.
Privacy rules should focus on “risks and outcomes” rather than “notice and consent” said NTIA Administrator David Redl. The latter approach could make companies “overly reliant on checkboxes” and could create barriers to entry for smaller players, he said.
O'Rielly and others criticized local regulations that they said interfere with broadband deployment. Eliminating such obstacles is a “rightful” focus of FCC attention, said NCTA Executive Vice President James Assey. Localities shouldn't seek to “game” the system and find workarounds to charge ISPs deployment fees, said T-Mobile Senior Vice President Kathleen Ham. NTIA is working to gather better broadband availability data through a pilot program with eight states, Redl said. Not all the data submitted will be created equal, Redl told reporters, so “some measure of quality control” is necessary.
O'Rielly criticized NTIA for what he characterized as a last-minute decision to study the feasibility of spectrum sharing in the 3450 to 3550 GHz band. He said that choice had removed important spectrum from the discussion and enhanced the importance of efforts to make C-band spectrum available.
Companies shouldn't be able to wait until late in an antitrust case to adjust their deal to address competition concerns, said DOJ Antitrust Division Principal Deputy Assistant Attorney General Andrew Finch. Finch was speaking of post-complaint arbitration offer on Turner programming in the AT&T/Time Warner case, a “litigation strategy” which he called one of the lessons DOJ learned from its defeat in that matter.
Monopolies and vertically integrated companies aren't necessarily violations of antitrust rules, Finch said. The Antitrust Division doesn't seek to break up monopolies that aren't engaging in exclusionary conduct, Finch said. Regulators shouldn't seek to break up monopolies that grew organically or because of innovative practices, because that would penalize success, he said. Current antitrust rules aren't up to regulating tech companies because they focus too heavily on prices, said Sohn.