CICILLINE’S STATEMENT ON THE NEUTRALITY AND THE ROLE OF ANTITRUST

Today, House Judiciary Committee Ranking Member on the Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Congressman Cicilline (D-RI), delivered the following remarks the House Judiciary Committee’s hearing on Net Neutrality and the Role of Antitrust.

Today’s hearing is an opportunity to examine whether antitrust enforcement is an effective and responsive substitute for the clear, bright-line consumer protections established by the 2015 Open Internet Order.

When working families pay their bill for broadband internet access, they expect to get what they pay for: access to the entire lawful internet, not just portions of it, at the speed that they pay for.

Without these protections, Internet service providers could slow down consumers’ Internet speeds to certain websites, require payment by third parties to speed traffic to consumers, or block certain websites altogether.

To be clear, these concerns are firmly grounded in reality.

As the U.S. Court of Appeals for the D.C. Circuit observed in 2014, it is “common sense and economic reality” that broadband providers have powerful incentives to require fees from edge providers to prioritize consumers’ speeds or discriminate against certain types of traffic.

Consequently, as the court noted, this behavior threatens Internet openness “in ways that would ultimately inhibit the speed and extent of future broadband deployment.”

Importantly, these protections do not apply to reasonable management of networks by Internet service providers to ensure that their consumers have the fastest and most reliable Internet speeds possible.

Moreover — and this is a fundamental point — these protections do not apply to specialized services, such as heart monitors, energy consumption sensors, or voice services. These services which are entirely outside the scope of the 2015 Open Internet Order because they are not a form of broadband internet access service for consumers.

Under the Trump Administration, the Federal Communications Commission is considering whether to abolish or substantially revise these protections. According to the Commission’s Notice of Proposed Rulemaking, the Proposed Rule seeks to “reverse the decline in infrastructure investment, innovation, and options for consumers” and address the concerns of broadband providers with regulatory uncertainty.

The Supreme Court has long held, however, that the Commission cannot simply rescind rules, but instead must examine the relevant data and articulate a rationale connection between relevant facts and its deregulatory actions.

Notwithstanding the Commission’s claims — which are based on speculative, industry-supplied data, I might add — that our current net neutrality protections have undermined broadband deployment and adoption, the U.S. Court of Appeals for the D.C. Circuit has held twice in the three years that Internet openness fosters innovation and “leads to the expansion and improvement of broadband infrastructure.”

Unless the Commission is able to explain why it has ignored this data showing the causal relationship between net neutrality and broadband investment, its actions are likely to be arbitrary and capricious under the Administrative Procedure Act.

Turning to the subject of today’s hearing, there is substantial uncertainty concerning the application of the antitrust laws to discriminatory conduct by broadband providers.

First, it is unclear that the Federal Trade Commission has authority to enforce the antitrust law against common carriers, which are exempted under section 5 of the FTC Act, even where a carrier is acting as a broadband provider.

This exact question is before the Ninth Circuit in an en banc review of its prior ruling that the FTC does not possess this authority.

Secondly, to the extent that the Federal Trade Commission even has authority over common carriers, there is no evidence that antitrust enforcement is a substitute for bright line rules to ensure openness.

The Commission’s Proposed Rule does not address or even ask this question, while the Federal Trade Commission’s 2007 Report on Broadband Connectivity and Competition Policy does not provide clear guidance on whether paid prioritization, blocking, or throttling are cognizable harms under the antitrust laws.

This point is underscored by bipartisan legislation introduced by Chairman Goodlatte in 1999 and Chairman Sensenbrenner in 2006, which each would have made discriminatory conduct by broadband providers an antitrust violation, tacitly recognizing that this conduct does not violate the antitrust laws today.

And finally, as Professor Tim Wu has previously testified before this Subcommittee, the type of economic analysis that antitrust enforcement relies upon does not “reflect diffuse but important values like speech or a healthy.”

In other words, it is virtually impossible for antitrust enforcement to protect against the full array of discriminatory conduct prohibited by the Open Internet Order.

Before closing, I want to take a moment to note that a primary goal of preserving internet openness is to prevent Internet gatekeepers from choosing the content that consumers are able to see online, or “balkanizing” the Internet.

Today, there is increasing concern that some platforms have abused their dominance to “stifle innovation, undermine privacy, and divert readers and advertising revenue away from trustworthy sources of news and information,” as the Open Markets Institute recently observed in a letter to the FTC.

I have previously requested that the Committee hold a hearing to examine the effects of platform dominance on consumers, innovation, and workers to ensure that the antitrust laws are working effectively.

As I have said before, we cannot retreat from hard conversations about new issues.

I thank the Chair for calling today’s hearing, and I look forward to the testimony of our esteemed panel of witnesses, and I yield back.