No, the FTC CANNOT Have A Ban On All ISP Blocking.

Since most folks won’t plow through 5500 words of legal analysis, I’ve gotten some requests to specifically address the claims by Federal Communications Commission Chairman Ajit Pai and others that the Federal Trade Commission can address blocking as easily as the FCC and prevent any Internet service provider from blocking any content or application. My short answer is: “No. The FTC CANNOT have a 'no blocking' rule like the FCC has today." The FTC may stop an ISP from blocking content or services when it can prove that the blocking violates the antitrust laws, or that the blocking violates the ISP’s published terms of service, or if the ISP blocking causes (or is likely to cause) substantial harm to consumers and is not outweighed by countervailing benefits. And, as I covered extensively in my previous post, proving these things can be hard. 

In contrast to the FTC, the FCC has very broad authority over telecommunications services but virtually no authority over other stuff — like information services. As I explain below, this makes it literally impossible for the FTC to simply prohibit blocking (let alone prohibit “fast lanes” or “slow lanes”) as the FCC does. To the contrary, under the Federal Trade Commission Act, the FTC cannot prevent a broadband carrier from blocking any website, application or service it chooses unless it can prove that this blocking (a) causes (or is likely to cause) “substantial injury” to consumers, (b) there is no other way the consumer could reasonably avoid the harm, and (c) there are no countervailing consumer benefits. While Section 5(n) does allow the FTC to consider “established public policies as evidence to be considered with all other evidence. Such policy considerations may not serve as the primary basis” for a finding of unfairness. So even if we assume that there is an “established public policy” against blocking, that alone does not allow the FTC to stop a broadband provider from blocking content or applications.
 
And all this, of course, assumes the FTC even has authority to deal with broadband carriers reclassified as information services, which remains up in the air at the moment pending the Ninth Circuit resolution of the en banc rehearing of FTC v. AT&T Mobility.