The FCC is considering a new Open Internet Order that could harm consumers by invoking Title II and banning paid prioritization. While the vast majority of business arrangements between Internet and edge providers are pro-consumer, it is possible that a few harmful agreements may arise. But these cases should be judged on their merits. Instead, the FCC stands ready to adopt a proposal that would ban paid priority altogether, even though many such agreements would benefit consumers.
Today, 32 academics and scholars with expertise in law, business, economics, and public policy sent a letter to the Federal Trade Commission (FTC) — the nation’s chief agency for competition advocacy — urging it to caution the FCC against Title II and a blanket ban on paid prioritization.
“It’s sadly ironic that those advocating rigid net neutrality rules talk about permissionless innovation, yet want to ban paid prioritization — a type of commercial agreement that essentially doesn’t even exist yet,” said Geoffrey Manne, Executive Director of the International Center for Law & Economics, which organized the letter. “What has really kept the Internet ‘free’ and ‘open’ has been focusing government on demonstrated problems, while remaining humble enough to admit that regulators don’t know what the future might, or should, look like. Net neutrality concerns over paid prioritization arrangements should be addressed if and when such deals actually occur—and only if they result in actual harm. The FTC should urge the FCC to adopt a case-by-case approach (like antitrust’s rule of reason) guided by economics, not hysterics and political pressure.”
The letter calls on the FTC to endorse such an approach and to urge the FCC to adopt it in any Open Internet rules the Commission may issue. The FTC regularly files comments with other government bodies as part of its competition advocacy program, and we believe this contentious issue begs for its expert guidance.
Read the full letter here.