House Antitrust Subcommittee Hearing On Network Neutrality

The House Antitrust Subcommittee took a whack at the Federal Communications Commission's network neutrality rules Nov 1, specifically the role of antitrust law in governing broadband access provider conduct. That came as FCC Chairman Ajit Pai is expected to circulate an order rolling back Title II classification of ISPs as early as later in Nov. It also came at about the same time that the FCC Democrats went to Capitol Hill to push back on that Pai proposal. Witnesses for the hearing included acting Federal Trade Commission Chair Maureen Ohlhausen, FTC Commissioner Terrell McSweeny, former FCC Commissioner Robert McDowell and Michael Romano, SVP of NTCA: The Rural Broadband Association. FTC Chair Ohlhausen said that a decade ago the FTC cautioned against internet regulation, and that the current marketplace is even more competitive, strengthening that argument. She said antitrust enforcement can protect net neutrality, "if that is what consumers want." She pointed out that advocates for regulation frequently argue that consumers value the equal treatment of data by ISPs. If so, "then any ISP that systematically degrades applications and content that its subs demand will certainly face a backlash," she said. FTC Commissioner McSweeny said it is wrong to think that relying on backward-looking consumer protection or antitrust enforcement can provide the same protections as the FCC's Open Internet's forward-looking rules. Those included a general conduct standard to get at ISP practices not yet identified that could harm consumers or edge providers.

McDowell said that for the past few months, a "disturbing pattern" has emerged of state and local governments trying to regulate "many aspects" of broadband--that includes trying to recreate the broadband privacy rules Congress invalidated earlier this year. He says the FCC needs to make it clear in its upcoming order that internet access is an interstate service to which federal rules apply. He says the FCC has ample statutory authority to do so, citing the Communications Act language "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."

House Judiciary Committee Chairman Bob Goodlatte (R-VA), was all for reversing the "regulatory intervention" of Title II classification. He said the rules imposed heavy burdens and constituted government meddling in a market that was already vibrant and competitive.