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House Judiciary Committee Chairman Robert Goodlatte (R-Va.) said Nov. 1 that he’s open to legislation that would strengthen the Federal Trade Commission’s ability to police internet service providers under antitrust laws.
Goodlatte is opposed to an Obama-era regime adopted by the Federal Communications Commission in 2015 that classified internet service providers as common carriers. He said he would rather see the FTC play a lead role in overseeing the industry. The FTC currently doesn’t have any jurisdiction over internet service providers.
Republican lawmakers and major telecom companies like AT&T Inc. and Verizon Communications Inc. see the FCC rules as overly restrictive and potentially harmful to innovation. They prefer an FTC approach that was in place before the FCC’s 2015 rules. Supporters of FCC regulation say the FTC’s antitrust enforcement of ISPs isn’t an adequate replacement for the current rules that they say are strong and clear. Ajit Pai, the current FCC chairman, opposed the 2015 rules when he was a Republican commissioner. He is now leading an effort to roll back the 2015 order that formed the basis of the agency’s net neutrality rules. A vote is expected as soon as December.
Goodlatte indicated that legislation might satisfy both camps. “Ultimately, I am open to the idea of amending the antitrust laws, if necessary, to account for the characteristics of the internet,” he said at hearing convened by the panel’s antitrust subcommittee. To date, communications law and antitrust law haven’t seen any major amendments that specifically address the internet, which leaves regulators to interpret how existing statutes apply in the digital age.
The purpose of the House hearing was to determine what role for antitrust might play in any “net neutrality” legislation that moves through Congress, a committee aide told Bloomberg Law. The tech leaders in Congress have said for the last several years that they want to amend communications law to note the presence of the internet. Any antitrust provisions would fall under the Judiciary Committee’s jurisdiction, the aide said. The biggest chunk of the bill would be considered by the Energy and Commerce Committee.
Next steps are unclear. Antitrust Subcommittee Chairman Tom Marino (R-Pa.) said he wants to continue listening to experts before making any judgments. “We need more information,” he told Bloomberg Law after the hearing.
The FCC rules are particularly controversial because of the legal basis used to issue them. The agency decided to reclassify internet access under the Communications Act from an “information service” to a “common carrier service.” That move had the effect of stripping the FTC of its authority over ISPs, since the FTC doesn’t oversee common carrier activities.
The FTC’s two sitting commissioners are split on the issue. Acting FTC Chairman Maureen Ohlhausen, a Republican, supports the pending FCC proposal, but Democrat Terrell McSweeny opposes it.
Absent clear rules like those at the FCC, policing ISPs would be costly, difficult, time-consuming, and hard to remedy, McSweeny said at the hearing.
“If the FTC were to detect a possibly anticompetitive practice, antitrust enforcement requires not only detection, but thorough investigation, prosecution, a potentially lengthy rule of reason analysis, and perhaps a multi-year appeals process,” she said.
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