CONYERS Statement For The Hearing On "Net Neutrality Ant The Role Of Antitrust" Before Teh Subcommittee On Regulatory Refore, Commercial And Antitrust Law

Dean of the U.S. House
of Representatives
John Conyers, Jr.

The Judiciary Committee has a central role in studying the issue of net neutrality and, more generally, competition on the Internet.

As the Committee considers today the specific question of whether antitrust law would be a better tool than regulation to ensure Internet competition and innovation, we should keep several factors in mind.

To begin with, failure to guarantee net neutrality is not an option.

As I have previously observed at prior hearings on this topic in 2008, 2011, 2014, and 2015, there are many areas in the United States where consumers have the choice of only one or two broadband Internet service providers. 

As a result, these broadband providers effectively function as monopolies or duopolies. 

Their control over the broadband access market gives them the incentive and ability to provide differential treatment of content, depending on factors like how much a content provider pays or whether the broadband provider also offers competing content.

Such discrimination can lead to less consumer choice, less innovation, higher costs, and more power to control the flow of information and ideas in the hands of fewer broadband providers.

Enforcement of existing antitrust law as the exclusive or primary means of ensuring an open Internet, however, would be insufficient.

Under current antitrust law, there is relatively little that regulators can do outside the merger review context to address the conduct of a regulated industry, such as broadband Internet service with respect to enforcing net neutrality principles.

Through a series of decisions, the Supreme Court has limited the potential to successfully pursue claims under the Sherman Antitrust Act with respect to net neutrality.

In addition, antitrust enforcement alone would be a cumbersome, more limited, more resource-intensive, and after-the-fact way than regulation to develop a regulatory regime for net neutrality.

Moreover, antitrust law is not sufficiently broad in scope as it fails to address the non-economic goals of net neutrality, including the promotion of innovation and the protection of free speech and political debate.

While I welcome the recent efforts of some progressives to restore the original understanding and purpose of antitrust law to better account for the political implications of the excessive concentration of corporate power, antitrust law nonetheless will remain a necessary, but insufficient tool with respect to ensuring net neutrality.

           

In light of the foregoing, the Federal Communications Commission’s 2015 Open Internet Order provides a strong and vital set of rules for ensuring an open Internet, and the Commission should not rescind it.

Rules to address net neutrality have the benefit of addressing potential threats to an open Internet before they fully materialize.

Additionally, having a set of best practices enshrined in rules would provide certainty for industry.

I am particularly pleased that the Open Internet Order contains key provisions that I and many others long called for, including:

●          a rule preventing broadband providers from blocking or throttling Internet access or from imposing paid prioritization of Internet traffic; and

●          a prohibition on any other practices that unreasonably interfere with or disadvantage users’ ability to access broadband service or lawful content applications, or services.

These measures are the best way to protect the virtuous cycle of innovation – which net neutrality fosters, and which ensures both competition and innovation among broadband and content providers – to the ultimate benefit of consumers.

I thank the Chairman for holding this hearing and I look forward to our witnesses’ testimony.

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House Judiciary Committee Ranking Member John Conyers, Jr. Opening Statement on Net Neutrality

WASHINGTON - Today, during a full House Judiciary Committee hearing on “Wrecking the Internet to Save It? The FCC’s Net Neutrality Rules,” Ranking Member John Conyers, Jr. (D-MI) delivered the following opening statement:

Dean of the U.S. House
of Representatives
John Conyers, Jr.

“The Judiciary Committee has a central role in studying the issue of net neutrality and, more generally, competition on the Internet. As the Committee considers today the specific question of what impact the Federal Communications Commission’s latest Open Internet Order has on competition and innovation, we should keep several factors in mind.

“To begin with, whatever approach one uses to ensuring an open Internet, inaction is not an option.  There are real threats to net neutrality.

           

“As I have previously observed at hearings held on the issue of net neutrality in 2008, 2011, and 2014, there are many areas in the United States where consumers have the choice of only one or two broadband Internet service providers.  As a result, these broadband providers effectively function as monopolies or duopolies.  In turn, their control over the broadband access market can result in differential treatment of content depending on how much a content provider pays, whether the broadband provider also offers competing content, or if any other the financial incentives for discriminating for or against given content were present.

“The concerns that I have previously expressed have only become more problematic since then particularly in light of further acquisitions by broadband providers that may result in even less consumer choice, less innovation, higher costs, andmore power in the hands of fewer broadband providers.

“In light of this threat, I commend the Federal Communications Commission for its work in crafting a strong set of rules for ensuring an open Internet. Congress created the FCC to develop the specialized expertise to properly regulate the complex telecommunications industry in service of the public interest.  And, after a lengthy rulemaking period during which almost 4 million Americans and all industry stakeholders made their voices heard on this issue, the FCC has fulfilled that mandate with respect to preserving and promoting an open Internet. Rules to address net neutrality have the benefit of addressing potential threats to an open Internet before they fully materialize.

“Additionally, having a set of best practices enshrined in rules would provide certainty for industry.  The FCC’s net neutrality rules, therefore, must be given the opportunity to take root.

“I am particularly pleased that the FCC’s Open Internet Order contains key provisions that I and many others have long called for and that will help protect competition.  These include –

●          a rule preventing broadband providers from blocking or throttling Internet access or from imposing paid prioritization of Internet traffic;

●          a restriction prohibiting any other practices that unreasonably interfere with or disadvantage users’ ability to access broadband service or lawful content applications, or services; and

●          a requirement mandating disclosure to users of information concerning network management practices and any terms, conditions, or limitations on the broadband service.

“These measures are critical to protecting the virtuous cycle of innovation which net neutrality fosters, and which ensures both competition and innovation among broadband and content providers, to the ultimate benefit of consumers.

“Finally, enforcement of existing antitrust law as the exclusive or primary means of ensuring an open Internet would be insufficient. Under current antitrust law, there is relatively little that regulators can do outside the merger review context to address the conduct of a regulated industry such as broadband Internet service with respect to enforcing net neutrality principles.

“Through a series of decisions, the Supreme Court has limited the potential to successfully pursue claims under the Sherman Antitrust Act with respect to net neutrality.

“Moreover, exclusive reliance on antitrust enforcement is simply insufficient.  While having the benefit of a more nuanced and fact-specific approach to the problem, antitrust enforcement alone would also be a cumbersome, more limited, more resource-intensive, and after-the-fact way to develop a regulatory regime for net neutrality.

“Another potential approach would be for the Federal Trade Commission to use its authority under Section 5 of the Federal Trade Commission Act to stop “unfair methods of competition.”

“Although I hold an expansive view of Section 5, to the extent that this approach goes beyond the scope of the Sherman Act or other antitrust laws it would be very controversial, as my friends on the other side of the aisle would be the first to note.

“Moreover, antitrust law is not sufficiently broad in scope as it fails to address the non-economic goals of net neutrality, including the promotion of innovation and the protection of free speech and political debate. This is why Former Chairman James Sensenbrenner, Representative Zoe Lofgren and I introduced bipartisan legislation back in 2006 to strengthen antitrust law to address net neutrality, in part because the FCC was doing too little at that time, in my view.

“I do not have that concern with the FCC’s latest Open Internet Order.  Rather, I congratulate them on their good work and welcome the Order’s full implementation.”

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Ranking Member Conyers Statement at Net Neutrality Hearing

(WASHINGTON) – Today, the U.S. House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing entitled, “Net Neutrality: Is Antitrust Law More Effective Than Regulation in Protecting Consumers and Innovation?” During his opening remarks Ranking Members John Conyers, Jr. (D-Mich.) delivered the following statement:

U.S. Representative
John Conyers, Jr.

“I thank Subcommittee Chairman Spencer Bachus for holding this important hearing on net neutrality and the role of antitrust law in ensuring a free and open Internet. The Judiciary Committee has a central role in studying the issue of net neutrality and, more generally, competition on the Internet, and I appreciate the Chairman’s decision to assert our jurisdiction.

“Turning to the specific question of whether antitrust is more effective than regulation in addressing net neutrality, we should keep three things in mind. To begin with, we need a regulatory solution to address potential threats to net neutrality and must allow the Federal Communications Commission to do its job. Congress created the FCC to develop the expertise so that it could properly regulate the complex telecommunications industry. Any FCC rules to address net neutrality could have the benefit of addressing some potential threats to net neutrality before they fully materialize. And, it could do so in a manner that would be more comprehensive than the piecemeal approach of antitrust enforcement.

“Additionally, having a set of best practices enshrined in rules would provide certainty for industry.  The FCC’s efforts, therefore, must be given the opportunity to develop. In developing its rules to ensure a free and open Internet, the FCC should incorporate the following principles: broadband network providers should be prohibited from failing to provide access to its broadband network for any provider of content, applications, or services on reasonable and nondiscriminatory terms; broadband network providers should be prohibited from blocking, impairing, or discriminating against or otherwise interfering with the ability of any person to use a broadband service to use or access lawful content, applications, or services on the Internet; and there should be strong transparency requirements regarding clear disclosure to users of information concerning any terms, conditions, or limitations on the broadband network service.

“The FCC began its latest rulemaking process only a month ago, and we must allow that process to proceed. To the extent that we do look to antitrust law as a way of ensuring net neutrality, enforcement of existing antitrust law would be insufficient. Under current antitrust law, there is relatively little that antitrust enforcers can do outside the merger review context to address the conduct of a regulated industry like broadband Internet service with respect to enforcing net neutrality principles. Through a series of decisions, the Supreme Court has limited the potential to successfully pursue claims under the Sherman Antitrust Act arising in the net neutrality context.

“Moreover, exclusive reliance on antitrust enforcement, while having the benefit of a more nuanced and fact-specific approach to the problem, would also be a cumbersome, more limited, more resource-intensive, and after-the-fact way to develop a regulatory regime for net neutrality. Another potential approach would be for the Federal Trade Commission to use its authority under Section 5 of the Federal Trade Commission Act to stop ‘unfair methods of competition.’ While I hold an expansive view of Section 5, to the extent that this approach goes beyond the scope of the Sherman Act or other antitrust laws it would be very controversial, as my friends on the other side of the aisle would be the first to note. Moreover, antitrust law is not sufficiently broad in scope as it does not address the non-economic goals of net neutrality, including the protection of free speech and political debate.

“Former Chairman James Sensenbrenner, Representative Zoe Lofgren and I introduced bipartisan legislation back in 2006 to strengthen antitrust law to address net neutrality, in part because the FCC was doing too little at that time, in my view. I am certainly open to suggestions on how antitrust law can be better tailored to address net neutrality concerns, but if we go down that path, current law must be modified to codify net neutrality principles. Whether one supports a more antitrust approach or a more regulatory approach, inaction by Congress and regulators is not an option, as potential threats to net neutrality remain present.

“In my opening statements at our 2008 and 2011 hearings on this issue, I noted that in many parts of our country, consumers have the choice of only one or two broadband Internet service providers that effectively function as monopolies or duopolies. I noted then that the market power that these broadband providers enjoyed could lead to differential treatment of content carried by the provider depending on how much a customer pays or the financial incentives for discriminating for or against given content. The concerns I noted may have only grown since then, particularly in light of increasing consolidation in the telecommunications industry that may result in even less choice, less innovation, higher costs, and more power in the hands of fewer broadband providers.”

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