FTC has capability to police net neutrality, Ohlhausen says

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By Mike Swift. Published 19 April 2017.

Despite possible staff cutbacks, the US Federal Trade Commission has the expertise and capability to enforce net neutrality should the Federal Communications Commission renounce its 2015 Open Internet Order and restore the agency to that role, FTC acting Chairman Maureen Ohlhausen said Wednesday.

Speaking at a global privacy conference in Washington, DC, Ohlhausen acknowledged doubts about the FTC's enforcement capabilities, both by European politicians who are concerned about the viability of the Privacy Shield data transfer agreement between the US and Europe, and in light of potential budget cutbacks at the FTC.

The possibility of the FTC replacing the FCC as the primary enforcer of net neutrality is a hypothetical, should FCC Chairman Ajit Pai move forward to replace the Open Internet Order, which prohibits Internet service providers from blocking or slowing traffic for websites, apps and online services. That order also forbids ISPs from charging fees for prioritized bandwidth.

One plan Pai has begun exploring, it is understood, would ask ISPs to commit to voluntary promises that they would renounce such practices. The FTC theoretically then could bring an enforcement action on allegations of deceptive conduct violating Section 5 of the FTC Act should an ISP violate those promises to consumers.

Ohlhausen backed such an approach Wednesday in a panel discussion with Julie Brill, a former commissioner who resigned from the FTC last year.

"I think investigation and enforcement is a particular strength of the FTC, and we have a very good track record in that area," the acting chairman said. "I have a lot of confidence in the FTC and our abilities. That's the message I want to put forth."

Ohlhausen pointed out that the FTC oversaw privacy and other conduct of ISPs prior to the implementation of the FCC order, which removed the FTC 's jurisdiction because the agency is barred by law from enforcing "common carrier" services such as public utilities. The FCC order gave fixed and wireless broadband services that common carrier designation.

Ohlhausen's statements were another example of her going on record in opposition to her Democratic FTC counterpart, Commissioner Terrell McSweeny.

McSweeny said in public remarks Monday that the FCC has the technical expertise to monitor whether ISPs are discriminating against digital content of websites, apps and other "edge providers."

The FTC "doesn't have experience in network engineering. The FCC has that expertise. Why not continue to rely on it?" McSweeny said.

Ohlhausen, a Republican, noted Wednesday that the FTC had brought a net neutrality case against AT&T Mobility, suing the wireless carrier in 2014 for allegedly "throttling" back the data speeds of purchasers of "unlimited" data plans. Just like the FTC, she said, the FCC is subject to budget cutbacks under the Trump admininstration.

"I just feel we can continue to act in this space. If there are concerns, we may need to shift resources toward this," she said.

Ohlhausen said the FTC is also well-equipped to return to watching ISP privacy practices, now that Congress has scuttled a set of more strict ISP privacy rules for ISPs. The FTC also will be an active enforcer of the US-Europe Privacy Shield, despite doubts by some European politicians, she said.

"One of the things I've been trying to convey is that I'm very supportive of the Privacy Shield. The FTC has a very important role in this. We are committing the resources to it; we need it to succeed," she said, adding that "it has to succeed" because of the critical importance of digital trade between the US and Europe.

Privacy report