Basing net neutrality rules on Communications Act Title...

common carriers, said Ohlhausen, as she and Daniel Lyons, an associate professor at Boston College Law School, argued the concerns of net neutrality proponents could be addressed under antitrust laws. Title II would treat ISPs as common carriers. The FTC’s inability to take action wouldn’t “necessarily mean no action will be taken,” said Public Knowledge Vice President Michael Weinberg. The FCC would under Title II still be able to enforce regulations, said Weinberg, who argued Title II is the only way to enforce “robust” net neutrality regulations. Lyons said not all forms of prioritization are anti-consumer. If tradeoffs need to be made because of finite broadband capacity, a momentary delay would likely be more noticeable for video streaming like Netflix or a telehealth session than for email or a website, yet regulations that allow no prioritization would take a “first-come, first-serve approach,” Lyons said. The FTC has hundreds of cases involving the Internet and “it would be a shame” to lose the agency’s expertise, Ohlhausen said. Handling cases that affect consumers through antitrust laws would deal with issues on a “case-by-case” basis, Ohlhausen said. Not all problems that could arise involving blocking or discrimination would be anti-competitive issues that would fall under antitrust laws, Weinberg said. Another approach, basing rules on Section 706, poses unattractive alternatives, he said. Robust rules would likely be thrown out by the courts as imposing common carrier regulations without declaring companies common carriers, he said. Rules that could pass legal muster would not be strong enough to deal with concerns, said Weinberg, who noted that the FCC exists precisely because communications is so important a segment of society it deserves an agency to focus on it.