Commentary

FTC Nominees Grilled Over Net Neutrality

When the Federal Communications Commission revoked net neutrality rules that prevented broadband providers from censoring websites and apps, chairman Ajit Pai assured the public that a different agency -- the Federal Trade Commission -- would police the carriers.

"Today, we are putting our nation’s premier consumer protection cop back on the beat," Pai stated last December. "The FTC will once again have the authority to take action against Internet service providers that engage in anticompetitive, unfair, or deceptive acts."

Critics were quick to point out some problems with Pai's approach. For one, the FTC doesn't have the same expertise as the FCC when it comes to broadband. Also, the consumer protection agency may not be able to prosecute broadband providers. In fact, appellate judges on the 9th Circuit Court of Appeals have already tossed a lawsuit by the FTC against AT&T over its wireless broadband practices.

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The appellate panel in that case suggested that the FTC lacks authority over AT&T for all purposes, due to its longstanding role as a telephone carrier. The judges held that FTC lacked jurisdiction to prosecute telecoms and other common carriers -- regardless of the nature of the allegations. The 9th Circuit is currently reconsidering that ruling, but hasn't yet issued a new opinion.

Pai was dismissive of the original ruling, but Joseph Simons, who was recently nominated to lead the FTC, seems to take the decision seriously.

This week, the Senate Commerce Committee grilled Simons and other FTC nominees about a variety of subjects, including net neutrality. Sen. Ed Markey (D-Massachusetts) asked Simons whether the FTC was in a position to enforce open Internet principles.

The Republican nominee suggested that he would like to do so, but acknowledged that the FTC currently seems to lack the ability to prosecute broadband carriers.

"My view is that the FTC, if it gets back its authority in the internet space, it is going to be a vigorous enforcer," Simons said. "We're going to take the statutory authority we have, and use it as best we can."

FTC nominee Rohit Chopra, a Democrat, said that he shared "skepticism and concerns" regarding the agency's ability to police broadband. "Given online litigation and rulings in the 9th Circuit, the FTC may face an unlevel playing field where some major market participants are exempt from the commission’s authority while others are subject to it," he said.

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