Goodlatte Seeks Updated Antitrust Laws to Handle Net Neutrality Complaints
Antitrust law can better protect competition on the Internet than “heavy-handed, top-down” FCC regulations, said House Judiciary Internet Subcommittee Chairman Bob Goodlatte, R-Va. At a hearing Tuesday of the subcommittee, Goodlatte supported updating antitrust laws with specific provisions on the Internet. The FCC didn’t testify but took shots from all corners on their controversial net neutrality order.
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The Judiciary and Commerce Committees each are kicking off a series of net neutrality hearings. After the Judiciary hearing, Goodlatte told us that future jurisdictional conflicts are possible, “but it’s early on in the process, and I think we're all of the mind that what the FCC is doing is a bad idea and we're looking for ways to stop it.” Both committees want “competition on the Internet, and if there needs to be adjustments to laws that promote competition and promote the creation of jobs, then we should be looking to do those.” Goodlatte supports an amendment to the Continuing Resolution banning the FCC from carrying out net neutrality rules (see separate report in this issue), and efforts to nullify the rules under the Congressional Review Act, he said.
The FCC order “seeks to entrench a one-size-fits-all regulatory approach to net neutrality that circumvents Congress’s lawmaking authority and threatens to stifle innovation on the Internet in a morass of bureaucratic rules,” Goodlatte said at the hearing. Judiciary Committee Ranking Member John Conyers, D-Mich., said the FCC rules are “weak” and “don’t meet up to standards.” But Conyers said it may be too difficult to prosecute antitrust cases on net neutrality. Antitrust enforcement by the Justice Department has gone downhill over the years, he said.
Congress should act to protect net neutrality, said Conyers. “The Internet is now a function of free speech in this country and in the world,” Conyers said. And the “job market hinges on a dynamic, open Internet,” he said. The net neutrality issue is made more important by the fact that most Americans have a choice of only one or two ISPs, he said.
FCC rules provide a “vague standard” of what kind of ISP activity is reasonable, and enforcement could fluctuate “according to the whims of DC-based regulators, who too often are subject to capture by special interest and repeat players,” Goodlatte said. Under antitrust law, impartial courts could judge ISP behavior using “objective economic principles and more than a century of case law.” Antitrust law would provide more certainty for startups than the FCC regulations, agreed Larry Downes, senior adjunct fellow of think tank TechFreedom.
Antitrust law “has a role to play” but can’t “do the job alone,” said Public Knowledge President Gigi Sohn. Trinko and other Supreme Court decisions “neutered” antitrust law for regulated industries like communications, she said. There are many areas of potential abuse that antitrust wouldn’t cover, and under antitrust alone legitimate net neutrality complaints likely would fail, Sohn said. But Downes said antitrust laws are sufficient and the FCC rules would allow “numerous frivolous adjudications.” The FCC rules are likely to result in “protracted legal wrangling that no small business can afford,” said Brett Glass, owner of Lariat, a small wireless ISP serving rural Wyoming.
The FCC order provided “baseline rules” that should not be repealed, but additional net neutrality protections are still needed to ensure a true open Internet, she said. The FCC’s legal position would have been stronger if it had reclassified broadband under Title II of the Communications Act, Sohn said. But the commission was afraid of “political blowback,” she said.
Nobody from the FCC provided testimony at the hearing. But all five commissioners will take questions about the net neutrality order at a hearing Wednesday morning before the House Communications Subcommittee.