• by Wendy Davis  @wendyndavis, July 18, 2017

Federal Trade Commission Acting Chairwoman Maureen Ohlhausen is throwing her support behind a plan to gut the current net neutrality rules.

In comments submitted Monday to the Federal Communications Commission, Ohlhausen urges the agency to reclassify broadband access as an "information" service. Doing so, she argues, would pave the way for the Federal Trade Commission to take action against any Internet service providers that act in ways that harm competition or consumers.

"The FTC’s consumer protection tools are well suited to ensure the fulfillment of consumers’ reasonable expectations about their broadband service," Ohlhausen writes.

"Our deception authority prohibits companies from selling consumers one product or service but providing them something different." she writes. "If a broadband provider failed to disclose blocking, throttling, or other practices that would matter to a reasonable consumer, the FTC’s deception authority would apply."

The FCC's net neutrality order, passed in 2015, classified broadband as a utility service and imposed several common carrier rules on internet service providers -- including bans on throttling and blocking content, and on charging companies higher fees for prioritized delivery. The rules also include a "general conduct" standard that broadly prohibits internet service providers from unreasonably impeding the ability of consumers and content providers to reach each other.

FCC Chairman Ajit Pai has proposed that the agency reclassify broadband access as an "information" service. If the FCC does so, it will arguably lose the authority to enforce other net neutrality principles, including prohibitions against throttling, blocking and paid fast lanes.

The FTC currently cannot enforce consumer protection laws against broadband carriers, because the agency lacks the authority to prosecute common carriers. But even if the FCC reverses the 2015 net neutrality order and declares that broadband will no longer be treated as a common carrier service, it's unclear whether the FTC will be able to prosecute Internet service providers.

At least one appellate panel has suggested the FTC lacks that authority regardless of the net neutrality order: Last year, a three-judge panel of the 9th Circuit Court of Appeals ruled that the FTC can't prosecute AT&T for allegedly duping wireless consumers. The panel suggested in its ruling that AT&T is immune from FTC enforcement actions due to the company's longstanding role as a provider of telephone services -- which are governed by common carrier rules.

The entire 9th Circuit has agreed to reconsider that ruling, but the outcome of the court battle remains uncertain.

FTC Commissioner Terrell McSweeny said Monday that she opposes Pai's proposed changes to the net neutrality framework.

"The FTC is a highly expert consumer protection and competition enforcement agency, but there are limits to the effectiveness of our tools in policing nondiscrimination on networks and protecting competition in markets that are already highly concentrated," she writes.

"Allowing for the current framework to be enforced is not heavy-handed regulation," she adds. "Instead, it is an extension of the market as it has always been -- open and non-discriminatory."