FTC Has Advantages Over FCC in Policing Net Neutrality, Ohlhausen Says
The FTC, institutionally, has advantages over the FCC in its oversight of net neutrality, said FTC Commissioner Maureen Ohlhausen Wednesday at the Winnik Forum at Hogan Lovells. Ohlhausen had earlier complained that the FTC could lose enforcement authority if ISPs are reclassified as common carriers under Title II of the Communications Act (see 1409300081).
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In its Verizon decision on the 2010 net neutrality order, the U.S. Court of Appeals for the D.C. Circuit upheld the order's transparency requirement, Ohlhausen said. As part of that, carriers need to say how they engage in traffic management, she said. If a carrier were to state how it engaged in traffic management and then didn't adhere to that, "that is a fairly straightforward deception case that the FTC could bring,” she said.
If the FCC reclassifies broadband “it may oust the FTC’s jurisdiction,” Ohlhausen said, and that would not leave consumers “better off.” The FTC’s expertise “would serve us well” in enforcing open Internet rules, she said. Because of its case-by-case enforcement approach, the FTC has staffers “who are very good at, very well trained in, conducting investigations, in bringing forth complaints, in getting redress for consumers,” she said. The FTC filed comments Sept. 19 at the FCC on net neutrality, also arguing against reclassification (http://1.usa.gov/1vpZdq6).
Ohlhausen called for “regulatory humility” on another key issue: privacy rules. New technology doesn’t mean a new regulatory structure is needed, she said. “It’s easy to focus on what the potential harms without a good understanding of what the benefits are,” she said. The FTC needs to make sure potential harms actually pose a real threat, she said.
Imposing prescriptive regulations is hard because regulators often don’t know what the future conditions will be, Ohlhausen said. The FTC has held only that companies must take “reasonable precautions” to protect consumer data, she said. The FTC closes up to three data security investigations for every one it brings to settlement, she said. Companies are better off if they face problems head on, she said. “If you have a big data breach you’re going to be on the radar screen whether you like it or not,” she said.
“I don’t think we’ve gotten ‘close to the line’ in going after a company for failing to take reasonable precautions,” Ohlhausen said. “A lot of our cases have been based on things like holding credit card data in the clear, failing to detect repeated intrusions, things like having your network password" be the word "password.”