April 9, 2018
USTelecom Vice President of Law & Policy Diane Holland recently joined Acting FTC Chief Technologist Neil Chilson for a webinar to discuss the FTC’s restored role of ensuring net neutrality protections for consumers and competition. Recent action by the Federal Communications Commission (FCC) ended the brief regulation of internet service providers under Title II, paving the way for the FTC to once again use its legal, economic, and technological expertise to address anticompetitive, unfair, or deceptive acts by all parties in the internet ecosystem.
The FTC is Well Equipped to Address Practices That Violate Net Neutrality
Reiterating points made in a recent blog in which he described the tools and sources of authority at the FTC’s disposal, Chilson explained how the FTC’s deep expertise in evaluating harm to consumers and to competition in every industry has for decades helped the agency protect consumers and the competitive process. In response to some skepticism about the FTC’s ability to handle technology and internet issues, Chilson noted that the agency has a wide range of expertise on technical issues such as internet privacy and data security, and the staff uses its significant internal technological experience, supplemented with outside expertise and coordination with other government agencies such as the FCC, to evaluate consumer harm in tech-heavy industries like broadband. He also noted the FTC considers state Attorneys General to be great partners in consumer protection, as they often have state laws that parallel the laws the FTC is responsible for upholding.
Understanding How Consumers Can be Injured is Key to Protecting Them
Understanding how consumers can be injured by anticompetitive, or unfair or deceptive practices in a wide range of industries is more important than having expertise with the workings of internet technologies, Chilson said. Thus, although the agency must be able to identify consumer injury in high-tech industries, it does not necessarily need to understand in granular detail the inner workings of those technologies. What the agency cares most about is determining the ultimate effect on consumers or the competitive process, and Chilson emphasized that the FTC is very good at identifying consumer injury and bringing cases to stop it.
The FTC Can Address Potential Net Neutrality Harms Using its Existing Enforcement Processes.
The FTC uses a “bottom up” process to develop enforcement cases based on consumer complaints, according to Chilson. Enforcement counsel at the agency evaluates complaints to determine the extent of consumer injury, considering whether, for example, there is non-speculative, “substantial injury” and whether false or misleading statements by companies are “material.” Thus, Chilson noted, in evaluating potentially harmful practices such as paid prioritization, the FTC could bring an antitrust suit to determine if a company’s disclosure of its service prioritization terms and conditions has an anticompetitive effect that harms consumers.
Industry Can Help the FTC be More Effective at Consumer Protection
Finally, Chilson offered some best practices that companies and associations seeking to work with the FTC can use to help advance the agency’s mission. Discussions with subject matter experts at the bureau or division levels are effective to keep the agency informed about industry practices. Chilson also encouraged participation in FTC workshops, which serve both to educate FTC staff who must prepare for the workshops and to get information out to industry; these events also provide effective networking opportunities.