Is the Federal Communications Commission the wrong agency to handle matters of net neutrality and Internet openness?
That's what some in Congress and elsewhere are suggesting. Instead, they say, ensuring that Internet providers don't abuse their network operator roles should be a matter for the Federal Trade Commission and antitrust law.
In a hearing Friday, members of the House Judiciary Committee grilled current and former federal officials over the possibility of letting the FTC take on the punishing of broadband companies that have harmed consumers.
"Do you believe the FTC would be effective at protecting the competitive interest?" asked Rep. Jason Smith (R-Mo.).
Former Republican FCC commissioner Robert McDowell and current FTC commissioner Joshua Wright told the committee that using the FTC to regulate companies after the fact would be enough and that the FCC does not need to regulate Internet service providers (ISPs). So far, there's been no evidence of a market failure that would require the FCC's preemptive regulation, they said.
"The FCC is 0 and 2 in the appellate courts [with its net neutrality rules]," said McDowell. "The courts gave it a very small needle, and it's trying to put a big fat regulatory rope through that eye. I think they'll fail again in court unless they're very, very careful."
But net neutrality advocate Tim Wu testified in the hearing that looking at Internet policy solely through the lens of antitrust law would ignore the non-economic harms that Internet providers could wreak on the Internet, such as suppressing speech and limiting diversity.
"What I'm suggesting is that net neutrality has supported and upheld this network as a platform for speech and innovation and noneconomic values," Wu told the committee, "none of which is captured by antitrust scrutiny."
The question over which agency has proper jurisdiction over this aspect of the Internet could end up broadening the debate on net neutrality beyond the agency that has historically regulated the nation's telecom networks.