Industry, Consumer Advocates Debate Need for Regulation of Blocking, Throttling
The U.S. needs bright-line regulation prohibiting data throttling and paid prioritization, Public Knowledge Senior Counsel John Bergmayer told the FTC. An industry-related speaker fired back, arguing that self-regulation is the approach.
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Most realize blocking for competitive reasons shouldn’t be allowed, said industry attorney Matthew Brill of Latham & Watkins. Consumers won’t tolerate improper blocking, so consensus is against it, Brill added. Shentel doesn't practice blocking and throttling, said Senior Vice President Tom Whitaker: “It’s not the type of business we run.” He said he’s not foolish enough to think no one engages in that type of behavior.
Blocking shouldn’t be allowed for any reason, even for editorial purposes, Bergmayer said, urging a hard-line rule. Brill warned against the chilling effect of regulation on innovation. It’s hard to see what the costs are for regulations that bar throttling and paid prioritization, Bergmayer said: “It’s not that there are zero costs to regulation, but in this case, they’re worth it.”
Wednesday’s hearing was intended to refine FTC enforcement efforts for regulating broadband market competition, said FTC General Counsel Alden Abbott. Whether the goals or concerns of net neutrality advocates can be addressed in whole or in part by “vigorous application” of antitrust and consumer protection laws is relevant to Congress, regulatory agencies and the broad public, he said. However, the FCC’s now-junked 2015 and current net neutrality rules are part of a larger policy discussion that goes beyond the hearing's scope, he said.
If the FTC intends to adequately police broadband competition, it needs more technologists, said Georgetown Law Institute for Technology Law & Policy Fellow Gigi Sohn on a separate panel. The FCC has a huge group of technologists studying how networks work, she added. Five to 10 technologists at the FTC isn’t “going to cut it,” she said, noting the agency is currently without a chief technologist.
The FTC needs a clearinghouse separate from the agency to offer neutral, technical analysis of misconduct claims, TechFreedom President Berin Szoka said. Sohn agreed, saying certain businesses’ livelihoods depend on timely resolutions of content discrimination claims.
Brill and Bergmayer agreed FTC focus should be on consumer impact. Bergmayer suggested the agency not focus on the mechanisms that result in harm. With its Section 5 authority, the FTC should intervene only when necessary and when there’s demonstrable harm to consumers, Brill said, calling it an appropriate standard for the internet economy. What’s at stake in the net neutrality discussion is consumers’ basic understanding of what internet access means, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz.