FTC Commissioner Rosch: Antitrust No Net Neutrality Panacea
Antitrust and consumer protection laws have places in the net neutrality debate, FTC Commissioner Thomas Rosch said in a keynote at Friday’s Broadband Summit. The shift in concern over the possibility of “quid pro quo” deals for preferred content delivery to network management raises consumer protection issues, but none so complex that current law can’t address them, Rosch said.
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The main question is whether “providers should be able to totally control their networks,” Rosch said. He cited network operators’ claims that neutrality mandates could destabilize infrastructure at risk. Consumer protection concerns arise from the users’ point of view of network traffic as a “black box,” he said, adding that without transparent network management, “suspicion is inevitable.”
That suspicion can be assuaged by “clearly and conspicuously” disclosing practices and policies, Rosch said. Consumers are best served when they can compare similar services among providers, he added. That comes only through “clear and conspicuous disclosure of material terms,” he said. Precedent bars deceptive or unfair practices by information services, he said, citing cases involving AOL, CompuServe and Prodigy.
Antitrust enforcement can solve few, “if any problems” in the area of net neutrality, Rosch said, invoking his work as an antitrust litigator. With few exceptions, the Sherman and Clayton Acts have “limited application” to net neutrality, he noted. However, he said, citing the Madison River case (CD March 4/05 p12), consensus on that decision “surprised me as an antitrust lawyer.” A broadband provider’s “refusal to deal” in an adjacent market, like phone service, would be difficult to litigate under Section 2 of the Sherman Act, said Rosch. A Section 2 proceeding would be even less appropriate for the Comcast-BitTorrent matter, he said. Under Section 2, BitTorrent’s only reasonable claim would be that Comcast caused a “loss of consumer confidence” in BitTorrent’s competing video delivery service, he added.
Other recent net neutrality issues fall outside antitrust law, Rosch said. The Verizon-NARAL episode involves content, while antitrust law focuses on “economic effects and price competition,” he said.
The FTC hopes to examine net neutrality in relation to Section 5 of the FTC Act, Rosch said. He hesitates to “over- promise” on antitrust law’s effectiveness in that area, he said. Invoking the law of unintended consequences, he cautioned against haste in seeking specific net neutrality legislation. - Andrew Feinberg