A
number of important, fundamental questions about the scope and nature of government
oversight lie within the broad and breathless debate over network neutrality. Does the public benefit from government oversight
by an agency with particular expertise in the industries overseen, or can a
generalist agency do a better job? A
related question asks whether ex ante regulations, which anticipate problems, can
better serve the public than ex ante remedies occurring after investigation.
I
firmly believe in the essentialness of sector specific expertise, but see ex
ante network neutrality regulations as possibly constraining customized
services that meet specific subscriber requirements. For example, I believe the FCC would have the
necessary expertise to differentiate between an ISP tactic that hurts consumers
and competition and one that does not, e.g., many types of zero rating.
To
the best of my knowledge, no critic of the FCC—even ones keen on shutting it
down—have gone on record stating that a generalist agency can and should assume
responsibility for spectrum management.
Shifting that essential task to the Commerce Department, for example,
probably would heighten the bias favoring retained government “ownership” of
choice spectrum with less likelihood for consideration whether government
agencies can do more with less.
The
Office of Chairman Pai has endorsed the generalist FTC in lieu of FCC
investigation and sanctioning of anticompetitive, or consumer harming
practices:
MYTH: The Federal
Trade Commission is not well equipped and has far fewer powers to protect
consumers from misconduct by Internet service providers.
- FACT: The Federal Trade Commission has broad
authority to police unfair, deceptive, and anticompetitive practices
online and has brought over 500 enforcement actions to protect consumers
online, including actions against Internet service providers and some of
the biggest companies in the online ecosystem. And unlike the FCC, the Federal Trade
Commission can order consumer redress (such as refunds) for violations of
federal law.
If
I read this correctly, Chairman Pai would pass off an important safeguarding
function to a “sister agency” with no concern about impact on budget, staff
numbers and jurisdictional wingspan. Such
magnanimity from someone whose position typically requires vigilance against reduction
in function, relevance and budget.
Perhaps
Chairman Pai honestly believes the FTC has a better handle on the
situation. Alternatively, he does not
think this, but considers it politically wise to abdicate responsibility so the
problem will go away.
The
problem will not go away, but the cop on the beat will lack sector-specific
expertise. A particularly glaring deficiency
will lie in content carriage issues at the lower layers of the stack of
Internet Service Provider functions. The
FTC has greater experience with obvious snookery by content con artists. Now it will reinvent the wheel on the many
ways an ISP might use its platform intermediary function and content/app carriage activity in anticompetitive
and other harmful ways.
One
last point: Chairman Pai appears to imply that the FTC can generate remedies to
harmful behavior with financial and other sanctions that the FCC cannot. The FCC surely can fine ventures under its
jurisdiction. Perhaps the Chairman has
rushed to the conclusion that a reclassification of ISPs as information service
providers removes any opportunity to sanction and penalize ISPs making the FTC
the government agency of first, last and only resort.
How
humble.
