Ohlhausen said in a C-SPAN interview that a reclassification could deprive the FTC of the power to enforce consumer protection rules. Specifically, Ohlhausen said, the FTC could find it difficult to enforce a “transparency” regulation that requires broadband providers to disclose their traffic management practices. That's because the FTC doesn't have the same authority over “common carriers” as other companies, Ohlhausen said.
The transparency rules are the only net neutrality regulations that survived a January ruling of the D.C. Circuit Court of Appeals. The other neutrality rules -- including prohibitions on blocking or degrading content -- were invalidated on the ground that the FCC lacks authority to impose common carrier regulations on an “information” service like broadband.
FCC Chairman Tom Wheeler is now trying to reinstate some of those rules, but his proposed rules aren't as stringent as the former ones, which were passed 3-2 in 2010. Importantly, Wheeler's current blueprint would allow broadband providers to create online fast lanes for content companies willing to pay extra.
Net neutrality advocates are generally opposed to that plan. Instead, they are urging Wheeler to reclassify broadband as a “telecommunications” service, covered by Title II of the Telecommunications Act. Doing so would empower the FCC to impose the same kinds of common carrier regulations that telephone companies must follow.
Washington Post reporter Brian Fung, who interviewed Ohlhausen for the show, pointed out that many consumers are asking for “strong” net neutrality rules. “In that light,” he asked, “how does the FTC interpret its mandate?”
“What's in place now is [a] transparency requirement,” she replied. “And the FTC -- as long as broadband is not reclassified as a Title II common carrier service -- can pursue those consumer interests, can make sure those promises to consumers are fulfilled.”
“I'm concerned that if that reclassification happens, and the FTC is taken out of the picture, that consumers on balance won't be better off,” she said.
Of course, even if the FTC is out of the picture, the FCC will still be there. And consumers themselves can sue if a broadband provider breaks an advertising promise. Some providers, including Comcast, have already faced those kinds of lawsuits. In 2009, that company agreed to pay up to $16 million to settle litigation over its former traffic shaping practices -- including its well-documented throttling of peer-to-peer traffic.