Former FTC Chair Takes Aim at State Broadband Bills

Former Obama Federal Trade Commission chairman Jon Leibowitz was in Massachusetts Tuesday to argue against a state bill creating its own network neutrality rules and regs, ISP contract terms and online privacy protections in the wake of the FCC's elimination of its own regs.

Leibowtiz is a partner at Davis Polk in Washington, where his clients have included Comcast, and co-chair of the ISP-backed 21st Century Privacy Coalition, which he said he was representing, though he added that his views were his own.

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According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. 

But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC's jurisdiction.

Leibowitz said the FCC's Dec. 14 vote to reclassify ISPs back to the "light touch" regime of Title I will not result in a falling sky, either. Instead, he said, it will re-empower the FTC to protect broadband consumers and competition once again. Leibowitz carried the ISP message that state net neutrality laws are preempted, and that a federal solution is needed, with important input from states.

And state network neutrality protections can be more than just providing input. Lebowitz said that while a "muscular enforcement regime remains in place at the federal level [the FTC, with an assist from the FCC, as well as Justice] under existing law, states can also bring enforcement actions against broadband providers and edge providers under generally applicable consumer protection statutes that do not interfere with federal objectives.

"One question Leibowitz hoped to answer was whether federal preemption extended beyond legislation to contract language for state broadband services--several state governors have issued executive orders requiring ISPs doing business with the state to agree to net neutrality rules mirroring the no blocking, throttling or paid prioritization rules the FCC eliminated in the Dec. 14 vote. 

Leibowitz' answer was a definite "yes."

"[A] state may not end-run preemption by using its procurement process to impose contractual conditions on a broadband provider’s provision of service to customers statewide," he said. "Similarly, a state may not escape preemption by conditioning essential contracts for access to state-managed rights-of-way, or licenses for cable franchises, on compliance with the state’s regulatory goals in its contracts for broadband Internet access services with customers statewide."

Leibowitz suggested the committee was well meaning, but off base. 

"The Telecommunications, Utilities and Energy Joint Committee would not be fulfilling its obligation to Massachusetts residents if it did not engage carefully and thoughtfully on issues affecting Internet access. But in this case the proposed net neutrality measures are neither necessary nor wise."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.