Academics urge FCC to enforce net neutrality on case-by-case basis

Instead of reclassifying broadband as a regulated common carrier, the FCC should look to the FTC's antitrust enforcement practices and examine potential net neutrality violations on a "case-by-case basis," said a letter from the academics organized by the free-market think tank the International Center for Law and Economics.

The FTC should urge the FCC to "take an approach that promotes, rather than harms, consumer welfare," by encouraging its sister agency to take a lighter regulatory approach toward net neutrality, said Monday's letter. Most of the people signing the letter are libertarian-leaning law or economics professors.

If the FCC reclassifies broadband as a regulated common carrier service under Title II of the Communications Act, the agency would harm consumers by removing some FTC consumer protection authority over broadband, the letter said. Reclassification, in an attempt to ban paid traffic prioritization deals between broadband providers and Web content providers, could limit broadband provider efforts to minimize network latency, market sponsored content or create joint marketing deals with content producers, the letter said.

"Although many net neutrality activists rail against the idea of getting 'stuck in the slow lane,' there are innumerable edge providers that would likely jump at the chance to have their traffic de-prioritized [at lower cost], because their services are time-insensitive," the letter added. "For email hosts, backup services, software developer, or any startup company [not trying to live-stream video] looking to cut their transit costs, such an option would surely have at least some appeal."

The FTC is unlikely to push the FCC toward a new net neutrality approach, given that President Barack Obama in November advocated for reclassification of broadband. But the FTC has filed comments in past FCC proceedings, with a comment in a 2014 broadband deployment proceeding noting that the FTC enforces consumer privacy and data security rules with broadband providers.

The FTC, with a Democratic chairwoman, isn't likely to stray from Obama's position on net neutrality, said Geoffrey Manne, executive director of the International Center for Law and Economics, the think tank that organized the letter. Still, the FTC is an independent agency that "can and should" encourage a different approach, he said.

The purpose of the letter is to encourage the FCC to take an antitrust-like approach toward net neutrality, which, "more than anything, means not prejudging all paid prioritization to be banned but rather assessing conduct when it happens to see if it has harmful effects," Manne added by email.

Matt Wood, policy director for net neutrality advocacy group Free Press, discounted an antitrust-like, case-by-case regulatory approach.

"Net Neutrality does not exist merely to protect Skype or YouTube from the anticompetitive actions of Comcast or AT&T, though that's one benefit," Wood said by email. "Net Neutrality is much broader than that, protecting users' rights to send and receive the information of their own choosing."

Strong net neutrality rules would protect consumers and Web content providers against unreasonable interference by broadband providers, "no matter the motivation for such interference," Wood added "In other words, even in situations where antitrust claims would be impossible to make because the blocked content or service is not in competition with the broadband provider's offerings."

Net neutrality enforced through antitrust-like measures could "take years to litigate and millions of dollars" to bring a lawsuit against a broadband provider, Wood said. "You can see some of the few reasons that putting the FCC on the sidelines is an idea only a cable or telecom company could love."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.