FTC's Ohlhausen, McSweeny remain at odds over using antitrust to enforce net neutrality

Net Neutrality

1 November 2017. By Leah Nylen.

The US Federal Trade Commission’s 1-1 split was on full display Wednesday as the agency’s two commissioners diverged sharply in testimony before a House panel on the ability of antitrust enforcement to ensure a competitive and open Internet.

The sole issue on which Republican FTC acting chairman Maureen Ohlhausen and Democratic Commissioner Terrell McSweeny agreed was that Congress should repeal the so-called common carrier exemption that prohibits the FTC from bringing cases against utilities.

After the US Federal Communications Commission reclassified broadband Internet, that exemption has hampered FTC enforcement. The US Court of Appeals for the Ninth Circuit is currently reviewing en banc whether the FTC can pursue a case against AT&T Mobility in spite of the common carrier exemption.

In 2015, the FCC, then led by Democrats, issued the Open Internet Order, reclassifying broadband services as common carrier subject to greater regulation. That decision was upheld by an appeals court, though remains pending before the US Supreme Court.

When Republicans took control of the FCC earlier this year, they began the process to roll back the Open Internet Order.

Ohlhausen and McSweeny, now the only two remaining members of the FTC, have long been at odds over the issue of net neutrality. In July, Ohlhausen and the FTC’s staff submitted comments to the FCC in favor of reversing the 2015 Open Internet Order. McSweeny offered her own comment opposing the proposal.

“Antitrust enforcement, by protecting the competitive process, can promote net neutrality — if that is what consumers want,” Ohlhausen told members of the House Judiciary Committee Wednesday. “Case-by-case antitrust enforcement focused on competitive harm will allow ISPs and content providers to experiment in ways that benefit consumers, while guarding against arrangements that foreclose access to edge providers.”

Two other witnesses at the hearing and the majority of Republicans on the panel offered views in line with Ohlhausen. McSweeny and the panel’s Democrats, meanwhile, advocated for keeping the Open Internet Order, saying that antitrust enforcement, which necessarily takes place after the fact, wouldn’t sufficiently replace FCC regulation.

“It is wrong to assume that a framework that relies solely on backward-looking consumer protection and antitrust enforcement can provide the same assurances to innovators and consumers as the forward-looking rules contained in the FCC’s Open Internet Order,” McSweeny said. “While it is true that the FTC possesses a great deal of expertise in the areas of antitrust and consumer protection, it does not possess specialized subject-matter expertise in telecommunications, data network management practices, or in detecting instances of data discrimination.”

Despite differences of opinion on the need for net neutrality regulation, both Ohlhausen and McSweeny urged Congress to repeal the common carrier exemption.

“One of the first improvements I would recommend is to get rid of the common carrier exemption. That does create a lack of clarity,” Ohlhausen said.

McSweeny agreed in response to questions.

“I would support a clean repeal” of the common carrier exemption, she said.

	Eliot Gao