Why the FTC Should Oversee Broadband Internet Service Providers

The Free State Foundation hosted its Ninth Annual Telecom Policy Conference on May 31. Knowledgeable speakers offered policymakers forward-looking insights befitting the Conference’s title: “A New Direction in Communications Policy: Less Regulation, More Investment and Innovation.”

As explained below, insights offered by Conference speakers reinforce two critical ways that communications policy ought to be made more conducive to fostering innovation and investment by Internet service providers. First, the Federal Communications Commission should cede jurisdiction over broadband privacy practices back to the Federal Trade Commission because the FTC is better suited to the task. Second, to the extent the FCC retains any regulatory authority at all over Internet service providers, the agency generally should adopt only the fact-specific, complaint-based ex post approach of the FTC. Public utility-like regulation of Internet service providers should be repealed. To the extent that the FCC retains any regulatory authority at all over Internet providers, which we do not here concede, any replacement regulatory framework adopted should be tied to market power analysis and target specific instances of claimed consumer harm or anticompetitive conduct.

The remarks of the panelists at the Conference session, “The View from the FTC: Overseeing Internet Practices in the Digital Age,” as detailed below, are very instructive, as well as very timely.

Return Oversight of Broadband Privacy to the FTC

The FCC’s Title II Order (2015) declared broadband Internet access services to be a “telecommunications service” subject to public utility regulation. The Title II Order thereby effectively stripped the FTC of jurisdiction over broadband Internet access service providers’ (ISP) privacy practices. Onerous, one-sided privacy regulation adopted in the FCC’s Broadband Privacy Order (2016) was repealed by Congress in March 2017. Now the FCC’s proposed Restoring Internet Freedom rulemaking would declare broadband Internet access services to be a Title I “information service.” In effect, this would repeal public utility regulation and return broadband privacy jurisdiction to the FTC.

The FTC’s expertise and analytical approach toward privacy issues were discussed during the Conference’s panel: “The View from the FTC: Overseeing Internet Practices in the Digital Age.” Thomas Pahl, Acting Director of the FTC’s Bureau of Consumer Protection, critiqued the FCC’s Broadband Privacy Order and contrasted it with his agency’s privacy policy:

[T]he FCC chose a more rigid and prescriptive approach to broadband data security and privacy issues than the FTC’s traditional case-by-case approach to these topics. The FCC’s rules also set standards for broadband providers separate and apart from standards applicable to others in the online space, eschewing the FTC’s more comprehensive approach. 

Mr. Pahl described what the public could expect if the FCC adopts its Restoring Internet Freedom proposal and thereby returns jurisdiction over broadband ISP privacy practices to the FTC:

The FTC is ready, willing, and able to protect the data security and privacy of broadband subscribers . . . .  We have a wealth of consumer protection and competition experience and expertise, which we will bring to bear on online data security and privacy laws. We will apply data security and privacy standards to all companies that compete in the online space regardless of whether the companies provide broadband services, data analysis, social media, or other services. Our approach would ensure the standards the government applies are comprehensive, consistent, and pro-competitive. 

The FTC’s Case-by-Case Approach Is Preferred for ISP Oversight

Tad Lipsky, Acting Director of the FTC’s Bureau of Competition, also participated on the panel. Drawing on his expertise in antitrust and competition law and policy, he described case-by-case enforcement by the FTC and private litigation as ready means to address any anticompetitive practices that might arise in the broadband Internet access services market. Mr. Lipsky rejected “the idea that a lessening of the regulatory burden on the FCC side would lead to a situation in which anticompetitive conduct was free to occur without fear of further consequence.” According to Mr. Lipsky: “That is demonstrably false. The FTC is waiting” and able to address anticompetitive concerns that might arise.

Characterizing himself as a “light touch regulator” and as “a fan of antitrust as the way of ensuring that dynamic free competition gives the consumer what he wants,” Mr. Lipsky also criticized the public utility model of regulation embodied in the 1887 Interstate Commerce Act, stating: “[I]t is a fact that the FCC Title II regulation is a direct descendant of that form of regulation.” Mr. Lipsky added:

[T]he temptation to look at the problems of a dynamic and quickly developing industry and to immediately apply this structure of economic regulation as a way of anticipating and making sure that future problems don’t arise has largely been a failure. 

Of course, the FCC’s Title II Order succumbed to such temptation. The order imposed public utility regulation on broadband Internet access services with no evidentiary findings of market failure or consumer harm. Indeed, the Title II Order dismissed market power’s relevance.

Professor Daniel Lyons, a member of FSF’s Board of Academic Advisers, also characterized broadband Internet access service regulation as “an antitrust and a consumer protection issue.” Recounting the FTC’s antitrust analytical tools, including its test for market power, Professor Lyons stated:

The FTC is well equipped to evaluate on a case-by-case basis whether a particular agreement is one that might harm consumers. Using robust law that’s been developed from a number of different cases elsewhere in the economy… they have a broader scope informed by a lot more history than the Federal Communications Commission. I agree that the ex post review and flexibility the FTC brings is a lot better in a dynamic marketplace than the more rigid FCC ex ante rulemaking. 

Thus, the FTC’s institutional competencies and case-by-case approach to anticompetitive conduct – as attested by Messrs. Pahl and Lipsky and Professor Lyons – bolster the basic direction set out in the FCC’s Restoring Internet Freedom proposal. The FTC has wide-ranging experience in addressing privacy practices and should be empowered to apply that experience to all online services alike. The FCC should follow through on its proposal and return jurisdiction over broadband ISP privacy practices to the FTC.

Going forward, the FCC should repeal its Title II public utility regulation of broadband Internet access services. To the extent the FCC determines in its Restoring Internet Freedom proceeding that it retains any regulatory authority at all over Internet service providers, which we do not here concede, the agency should adopt only the fact-specific, complaint-based ex post approach of the FTC. To the extent any replacement regulatory framework is retained, it should be tied to market power analysis and target specific instances of claimed consumer harm or anticompetitive conduct.

The C-SPAN video of the conference session, “The View from the FTC: Overseeing Internet Practices in the Digital Age,” is here.

[Note: The quotations by the panel speakers included in this post were taken from the C-SPAN transcription of the Conference, with minor edits made for purposes of correcting obvious syntax, grammar, and punctuation errors. None of the meaning was changed.]