FTC Prepares to Wade in to Digital-Age Competition

The Federal Trade Commission next week launches a months-long series of hearings
on antitrust and competition policy that could change how the government treats some tech companies in the digital age.

It will be the latest spotlight on the hot-button issue of the disparate regulatory treatment of social media sites and ISPs.

Edge providers argue they don't need new innovation-suppressing regs, but that ISPs, who they argue lack effective competition, need more oversight now that the FCC has deeded authority over ISP net neutrality to the FTC. ISPs say that if they are to continue to be subject to a broadband regulatory regime, the FTC should "harmonize" its enforcement by applying regs to the edge providers who they say are large, dominant players (Google, Facebook) currently excluded from the regulatory picture.

The government will have to sort out the issues and decide whether changes need to be made, and for whom.

"Where consumers have no meaningful choice among [broadband providers], achieving this interoperability through regulatory action of legacy infrastructure providers has been commonplace," the Computer & Communications Industry Association (CCIA) told the FTC in pre-hearing comments. "When the focus of the question moves to the various competing 'edge' communications services, among which consumers can choose, the answer is necessarily different."

AT&T sees it differently. "The Commission should use its authority to 1) create a level playing field by harmonizing the competition and consumer protection frameworks for all participants in the internet marketplace," it blogged Friday (Sept. 7).

NCTA-The Internet & Television Association agreed that the edge definitely needed government minding. "At a minimum, there is plainly no reasonable basis in today’s marketplace for singling out ISPs for unique regulatory burdens," it told the FTC. "To the contrary, as discussed further below, recent experience suggests that large Internet platform providers pose a greater risk to Internet openness and consumer privacy than ISPs."

Related: FTC Unveils Policy Hearing Lineup

The first hearing will be Sept. 13-14 at The Georgetown University Law Center and is scheduled to deal with 1) "the current landscape of competition and consumer protection law and policy; 2) whether the U.S. economy has become more concentrated and less competitive; 3) the regulation of consumer data; 4) antitrust law and the consumer welfare standard; and 5) the analysis of vertical mergers."

The tech changes are primarily the rise of the internet of everything and the international developments include the EU's new privacy framework--the FTC has been deeded new privacy oversight authority in the FCC's reclassification of ISPs as non-common carriers.

The avowed goal of the the hearings is to decide whether "broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection law, enforcement priorities, and policy."

CCIA president Ed Black, whose members include Google, Amazon and Facebook, said in a call with reporters Friday previewing the hearings that antitrust should not be politicized.

President Donald Trump has threatened edge providers with regulation and investigation over allegations of censoring conservative speech.

Asked by Broadcasting & Cable if that is what the Trump Administration was doing and whether he was confident the FTC hearings were not aimed toward a conclusion of needing to regulated the edge, he said:

"It is not difficult to sense there are people who have various frustrations with companies in the industry. That is not a surprise or unusual. In general, if you look historically, antitrust is seen to have been insulated from partisan politics."

As to whether the FTC hearing is sufficiently insulated from those forces, he said the FTC has been a solid, research-based organization. "I certainly start out with that assumption."

Asked if he was concerned that the DOJ announced it would be talking with state AG's about social media content issues after the President tweeted concerns about Google, Black said: "It is unfortunate if there is, in fact, an attempt to somehow marshal the power of the government to target any individual or company to achieve non-governmental purposes, and there is certainly a hint that of what's going on, though we don't know for sure. But there certainly seems to be at least a tangential linkage between political concerns and legal proceedings. If that is more than tangential, that would certainly become a serious problem."

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.