In a November
28, 2017 speech, Acting Chairman Maureen Ohlhausen of the Federal Trade
Commission addressed how the FCC’s Restoring
Internet Freedom proposal revives and even enhances the FTC’s ability to
protect broadband consumers.
This proposal, which is on the agenda for the FCC’s December
14, 2017 meeting, would restore the FTC protections broadband customers had
before the FCC imposed utility-like regulation of Internet service providers
(ISPs) in 2015.
Acting Chairman
Ohlhausen described the FTC’s extensive history of enforcing Internet privacy
and consumer protections:
We’ve reviewed
mergers involving ISPs and online content, such as AOL/TimeWarner, and brought
consumer protection cases against companies like Apple, AT&T, Dish,
Facebook, Google, T-Mobile, and many others. Indeed, the FTC closely watched
the behavior of the early on-ramps to the Internet and brought cases against
AOL, Compuserve, Juno, and Prodigy for deceiving consumers about their
services. And we have an ongoing case against AT&T Mobility for allegedly
unfairly and deceptively throttling broadband speeds on unlimited wireless data
plan. Wireless provider TracFone settled with us for similar behavior.
The FTC is also
the primary enforcer of online consumer privacy and data security. In fact, I
was at the FTC when we brought the first online privacy case against GeoCities
in 1998. The FTC has brought more than 500 privacy- and security-related
enforcement actions and held more than 20 workshops and events on privacy and
data security topics….
Indeed, the FTC
has regularly addressed the kinds of anticompetitive behaviors that concern net
neutrality advocates. For example, the FTC has sued companies for foreclosing
rival content in an exclusionary or predatory manner. We have challenged
problematic access, discrimination, pricing, and bundling practices (citations omitted).
She then explained the
problem with the approach taken by the FCC in its 2015 Open Internet Order:
Although the 2015
rules purported to be about consumer choice, they likely limited the options
available to the consumer. This point is worth emphasizing: in the marketplace,
companies seek to deliver what consumers want. But under prescriptive
regulation, companies seek to deliver what regulators want. Case-by-case
antitrust enforcement focused on competitive harm will allow ISPs, edge
providers, and content providers to all experiment with innovative business
models that will face the ultimate marketplace test: whether they benefit
consumers….
Now some criticize
the FTC’s enforcement-based approach. But, as our bipartisan 2007 report
concluded, case-by-case enforcement is the best tool for the types of practices
that often benefit consumers but might harm consumers in certain instances. This
approach allows beneficial practices while curbing abuse. In contrast, per se prohibitions – the inflexible
approach taken by the FCC in 2015 – prevent beneficial practices, and, because
rules don’t enforce themselves, government would still have to bring specific
cases to address any abuses (citations omitted).
Acting Chairman
Ohlhausen concluded:
In short, the FTC
has tools that are capable of protecting consumers and competition online.
We’ve done so across the economy, throughout the Internet, and until 2015, we
did so for broadband consumers as well. Yet in the last week, I’ve read a lot
of anxious theorizing over the future of the Internet. But the Internet was a
success long before the 2015 regulations. And the FCC’s repeal of those
regulations doesn’t mean that neutral practices will disappear. Indeed, where
consumers desire neutrality, they’ll get it through market competition,
facilitated by the FCC’s transparency rules and by antitrust and consumer
protection law enforced by the FTC, DOJ, state attorney generals, and private
plaintiffs. And companies across the entire Internet ecosystem will remain free
to experiment with innovative business models that benefit consumers.
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