On November 1, 2017 the House Antitrust Law Subcommittee held a hearing to discuss the role of federal agencies in preserving an open Internet.

The core question discussed at the hearing was whether current antitrust law is sufficient to ensure net neutrality absent FCC rules. The panelists—including FTC Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeney; former FCC Commissioner Robert McDowell; and Michael Romano, NTCA Senior Vice President of Industry Affairs and Business Development—and committee members were generally divided down party lines, with Republicans arguing that FCC rules were both unnecessary and counterproductive and Democrats arguing that rules were necessary to ensure an open Internet, free expression, and innovation.  

At the same time, all panelists agreed that Congress should eliminate the so-called “common-carrier exemption,” which exempts Title II common carriers from FTC jurisdiction.  By eliminating the exemption, the panelists argued that the FTC could assume a greater role in enforcing net neutrality and other consumer protection violations related to the communications industry.

The hearing took place in the midst of ongoing regulatory and judicial proceedings that would define the contours of FTC and FCC jurisdiction with respect to broadband providers. Specifically, the FCC is considering a Notice of Proposed Rulemaking that would dramatically scale back the FCC’s earlier 2015 open Internet order–reclassifying broadband internet access as a lightly regulated “information service” and returning primary jurisdiction over broadband services to the FTC.  At the same time, the Ninth Circuit has before it a pending rehearing en banc of a 2016 decision that broadly interpreted “common carrier exemption” as applying to all activities of common carrier entities, not just common-carrier activities.  As we discussed in an earlier blog post, the original ruling was controversial, and FCC Chairman Ajit Pai has praised the decision to rehear the case.

For more information on the state of play with the current boundaries between FCC and FTC jurisdiction (in the context of consumer privacy), please join us for an ABA Antitrust Section webinar sponsored by the Privacy and Information Security and Media and Technology Committees on November 13, 2017 featuring:

  • John Heitmann, Chair, Communications Practice, Kelly Drye & Warren (moderator)
  • Jennifer Tatel, Partner, Wilkinson Barker Knauer
  • Neil Chilson, Chief Technologist, Federal Trade Commission
  • Rick Chessen, Senior Vice President, Law and Regulatory Policy, NCTA – The Internet & Television Association
  • Yosef Getachew, Policy Fellow, Public Knowledge

If you are interested in joining the webinar, you may register here.