Post-Net Neutrality, Eyes Turn Toward Antitrust Policy
The political backlash following the FCC eliminating net neutrality rules raises stakes in an ongoing conversation on the effect on competition of convergence in the tech and broadband sectors. Mindful of the supercharged political atmosphere, antitrust agencies will be under increasing pressure to protect markets and consumers, experts said in interviews. Acting FTC Chairman Maureen Ohlhausen said the agency looks forward to its role as “the cop on the broadband beat” (see 1712140039). A DOJ spokesman said the “Antitrust Division stands ready to vigilantly protect American consumers and the free markets from any potential violation of the antitrust laws" by ISPs.
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“If the repeal isn't struck down, logic dictates more antitrust scrutiny,” said Columbia University law professor Timothy Wu, who has long backed net neutrality rules and recently raised concern about tech consolidation potentially slowing innovation (see 1712010027). Wu said he’s working on a book with the working title The Curse of Bigness Revisited.
Increased consolidation of tech platforms and ISPs captured the attention of antitrust and academic experts, with those on both sides of the net neutrality issue making arguments about the rule's effect on competition. The effect of the overturn “will be not only in the ability of the telecommunications companies to favor the content of certain corporations over others,” the policy will lead to more consolidation, said Barry Lynn, president of the Open Markets Initiative. As the public perceives the emergence of a monopoly problem, it will “seek solutions from antimonopoly enforcement agencies,” Lynn said.
“The good news is that one of the great strengths of the American system for regulating competition is that there is a huge amount of overlap among agencies, and a great variety of ways to achieve more or less the same end,” Lynn said. He held a recent forum (see 1712060059) raising concern about growing consolidation in the communications and other sectors and resulting harm to consumers, and testified to the Senate Judiciary Committee on antimonopoly laws.
“We need to worry about the old gatekeepers and the new gatekeepers,” said Allen Grunes, Konkurrenz Group founder who has raised concerns about how user data can be used by dominant platforms to limit competition. Whether the now-nixed rules help boost innovation is an economic question hard to answer and may get lost in the political heat, he said. Whether antitrust will be able to get at some of the same conduct as the rules also is a query. “If an ISP has market power and is using that power to limit competition, that is certainly within the scope of antitrust,” he said.
Worries about market concentration aren't new, said Adam Thierer, senior researcher at the Mercatus Center, George Mason University. “We’ve been here before. The complaints that big is bad have come up again and again,” he said: It’s important to keep perspective focused on consumer welfare. “We live in an era of information overload,” a successful byproduct of communications policy that tried to solve “for information poverty,” he said. “If there is a serious concern about market power, there is always an opportunity to make a case with antitrust.”
The FCC and the FTC said Thursday they signed a memorandum of understanding, unveiled earlier in the week, laying out how each will address net neutrality complaints (see 1712110049) in light of the FCC’s order overturning most of its open internet 2015 rules. “Each agency has legal, technical, and investigative expertise and experience that is valuable for rendering advice and guidance to the other relating to the acts or practices of Internet service providers,” the memo said.
Other net neutrality news Friday: On Capitol Hill and on appeal prospects 1712150049 and on states 1712150042.