WASHINGTON — A federal court has loosened Democrats’ hold on a “sky is going to fall” campaign against the Federal Communications Commission’s elimination of network neutrality rules.
The move helps pave the way for a Federal Trade Commission — soon to be at full strength, if Congress does its job — poised to oversee both internet service providers and edge providers.
The 9th U.S. Circuit Court of Appeals ruled Feb. 26 that the FTC can wield its authority over unfair, deceptive or anticompetitive broadband practices even if the parent company is a common carrier.
Common carriers are exempt from FTC oversight and a three-judge panel of the same court had earlier ruled that the exemption covered not only AT&T’s phone business, but its broadband business as well.
Filling a Gap
That left a potentially huge regulatory gap with the FCC eliminating rules against blocking, throttling and paid prioritization — a move activists and Democrats talked up in the days before the FCC vote on the Restoring Internet Freedom Order.
The court recognized that gap and cited it in deciding to fill it.
Per a memorandum of understanding with the FCC about enforcement of the new internet regulatory framework, the FTC will investigate ISPs for any divergence from what they say they are, or are not, doing, as well as any other practices the FTC deems unfair or deceptive. That unfairness could include anticompetitive blocking or throttling or paid prioritization. FCC chair Ajit Pai has stated that this will be a “robust process” for protecting internet openness.
House Republican leaders were quick to use the decision to buttress their case for the FCC’s regulatory rule rollback.
Democrats were praising the court decision last week as well, although they had to take something off those cheers.
“Today’s 9th Circuit ruling is a win for consumers,” Rep. Frank Pallone (D-N.J.) said. “But this decision does not fix the hole created by Republicans who stopped the FCC from enforcing strong privacy.”
The FTC could be minding more than just ISPs. The four new nominees to the commission were voted out of the Senate Commerce Committee last week and are headed to the Senate floor for a vote.
All of them said at their confirmation hearings that they would be willing to look into the growing power of edge providers in the vaunted internet ecosystem, something Democrats are increasingly pushing for.
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