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FTC'S Ohlhausen: No Need to Ban Non-Neutral Net Behavior

Acting Federal Trade Commission chair Maureen Ohlhausen said the agency has the muscle to protect against harmful non-neutral web practices.

That comes as the comment deadline closed Aug. 30 on the FCC's proposal to reclassify broadband under Title II and rethink the FCC's rules against blocking, throttling and paid prioritization. The major ISPs have committed not to block, throttle or prioritize anticompetitively, which would allow the FTC to pursue any violations under its Sec. 5 authority over false and deceptive practices.

In an op ed in The Hill newspaper, Ohlhausen said that if the FCC repeals what she called the heavy-handed net neutrality regulation, the FTC would be there to pursue harmful conduct on a case-by-case basis, along with state attorneys general and private plaintiffs -- the FTC's power is to file suit against companies it concludes have broken their pledges.

She said that case-by-case approach "better protects consumers and promotes innovation because it focuses agency resources on actual consumer injury and doesn’t require regulators to predict the future."

FCC chair Tom Wheeler's argument for his own case-by-case approach in the 2015 Open Internet Order, the general conduct standard, was that the FCC could not anticipate in bright-line rules all the ways that an open internet might be impeded, though he argued those rules were needed in addition to the added approach.

Ohlhausen argued that case-by-case has the muscle to check harmful conduct without the backstop of regulations that could wind up stopping pro-consumer policies.

"We don't need prescriptive regulations to prevent harmful, non-neutral behavior," she said, adding: "[I]f the FCC were to repeal heavy-handed net-neutrality regulations, net-neutral practices wouldn’t disappear. Indeed, where consumers desire net neutrality, they’ll get it through market competition, facilitated by antitrust and consumer protection law enforced by the FTC, state attorney generals, and private plaintiffs. And companies will remain free to experiment with innovative business models that could benefit consumers."

(Photo via Jeff Kubina's FlickrImage taken on June 20, 2017 and used per Creative Commons 2.0 license. The photo was cropped to fit 16x9 aspect ratio.)

John Eggerton
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.