Net neutrality hearing examines a false choice on antitrust

Opponents of net neutrality, still stinging from their recent defeat at the Federal Communications Commission (FCC), have taken their fight to Congress in a two-week marathon of hearings that concluded today in the House Judiciary Committee. Today’s hearing, provocatively titled “Wrecking the Internet to Save It?”, examined whether antitrust law can address net neutrality better than the FCC’s recently approved rules. This argument, a favorite of House Judiciary Chairman Bob Goodlatte (R-Va.), presents a false choice. In truth, Americans need both antitrust enforcement and the regulatory process to protect the Open Internet. Policymakers should reject this false choice and embrace the benefits of both approaches.

{mosads}The benefits of dual oversight are evident in the FCC’s synergistic relationship with the nation’s chief antitrust enforcers, the Department of Justice (DOJ) and the Federal Trade Commission (FTC). Over the past century, these agencies developed complementary expertise that protects consumers in different ways. The FCC’s primary tool is the Communications Act, which includes a congressional mandate to promote broadband deployment and protect the public interest; the Department of Justice uses the Sherman Act and Clayton Act to protect consumers from anticompetitive harm in all industries; and the Federal Trade Commission Act empowers the FTC to investigate business practices that are unfairly anticompetitive or deceptive. Collectively, these statutes give the government a robust toolkit for protecting consumers and the Internet. Eliminating the FCC’s role in net neutrality would undermine this regulatory framework.

Net neutrality is a pro-competition ideal, but competition alone cannot fully protect the values of Internet openness and freedom. A net neutrality regime that relies solely on antitrust analysis would be narrowly focused on pricing harms, such as those found in cartels and monopolies. Such a legal theory may prevent some paid prioritization schemes, but it cannot address the non-economic goals of net neutrality such as free speech, political participation and viewpoint diversity. The FCC is empowered to protect this broader array of social benefits. An antitrust-only approach would be piecemeal at best, as remedies are typically applied to a single actor rather than as industry-wide rules. This approach can be useful in some contexts, but it shouldn’t be the only tool in the government’s toolkit.

The FCC’s rules, on the other hand, provide the kind of forward-looking, global protections that are needed to keep the Open Internet a robust platform for innovation and public debate. Antitrust should be a backstop to these rules, not a replacement. Eliminating the FCC’s rules on this basis is akin to taking police officers off the beat simply because there are prosecutors capable of bringing lawbreakers into court after a crime has occurred. They play complementary roles; eliminating one weakens the other.

Nonetheless, some members of Congress seem intent on instigating an interagency tug-of-war over net neutrality. Ignoring the “if it ain’t broke, don’t fix it” adage, the House Judiciary Committee has convened hearings on this topic several times in an attempt to fan the flames between the FCC, FTC and DOJ. The witness lineup for today’s hearing is instructive. Two FTC commissioners participated, but disclaimed that their testimony did not reflect their agency’s views, and the lineup did not include anyone from the Department of Justice. As the nation’s oldest antitrust enforcer, DOJ has a long history of cooperation with the FCC on matters of broadband competition and it has industry expertise; this is why the Comcast-Time Warner Cable merger was referred to DOJ rather than the FTC. One would expect to hear from the Department of Justice if the relationship between competition law and FCC regulation were problematic.

If the antitrust agencies are not clamoring for this debate, why is it being given a congressional platform? The answer requires acknowledgment of what the argument really is: an effort aimed at rolling back the FCC’s Open Internet rules. Recognizing that Americans of all political stripes strongly support net neutrality, opponents of the FCC’s approach seem to realize they cannot repeal the rules without offering some sort of replacement regime. However, a regime that strips the FCC of its regulatory authority is not a workable solution. A recent legislative proposal fell short for similar reasons.

Antitrust has greatly benefited consumers and the economy, but it is not a panacea. The best way to preserve net neutrality combines strong regulatory safeguards with rigorous antitrust enforcement in the broadband market. The FCC embraced this approach last month. Congress should not stand in its way.

Stager is policy counsel for the New America’s Open Technology Institute.