CONYERS Statement For The Hearing On "Net Neutrality Ant The Role Of Antitrust" Before The 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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