Dotcom Fairness Doctrine Specter Raised in Hill Hearing

Republicans frame network neutrality defense as invitation to FCC to regulate content
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The House Judiciary Committee has put itself squarely in the middle of the network neutrality debate, asserting its jurisdiction in a hearing Friday—“Net Neutrality: Is Antitrust Law More Effective than Regulation in Protecting Consumers and Innovation?"—in its subcommittee on antitrust law. 

And while the subject was network neutrality, Republicans also saw the specter of a dotcom version of the fairness doctrine in calls for FCC regulation to prevent ISPs from favoring one type of speech over another.

The Republican leadership of the committee and subcommittee should have rephrased the hearing's title in the form of a statement, since they were clearly in favor of having network neutrality police for after-the-fact violations by antitrust law than regulated before the fact by the FCC.

Three of the four witnesses shared that view, the fourth being Tim Wu, Columbia Law professor and coiner of the term, network neutrality.

The witnesses favoring antitrust over regulation were Republican Federal Trade Commission member Josh Wright, former FCC commissioner Robert McDowell, and Stanford Professor Bruce Owen.

Judiciary Committee chairman Bob Goodlatte (R-Va.) summed up the argument for antitrust enforcement of anti-blocking and nondiscrimination.

“Proponents of imposing additional regulation on the Internet marketplace argue that it is needed to encourage competition and promote innovation. I am deeply skeptical of these claims,” he said in his opening statement. “In my experience, regulation generally stifles rather than facilitates competition and innovation. In fact, it is my belief that the Internet has flourished precisely because it is a deregulated market."

“That is not to say that we should stand by and allow companies to engage in discriminatory or anticompetitive activities. I believe that vigorous application of the antitrust laws can prevent dominant Internet service providers from discriminating against competitors’ content or engaging in anticompetitive pricing practices. Furthermore, antitrust laws can be applied uniformly to all Internet market participants, not just to Internet service providers, to ensure that improper behavior is prevented and prosecuted.”

Antitrust fans, which encompassed the Republicans on the committee, all signaled the laws were well equipped to deal with that discrimination and anticompetitive conduct, while Wu and the Democrats—the issue broke neatly along political fault lines—said those laws were unable to capture the noneconomic values of the Internet, including political and speech issues, which the expert agency, the FCC, was in a better position to gauge and respond to. Rep. John Conyers (D-Mich.), ranking member of the full committee, said antitrust law was too slow, and too weak, to respond to the speed of the Internet.

Rep. Hank Johnson (D-Ga.), ranking member of the subcommittee, said that while antitrust had the advantage of a prosecutorial mindset and the removal of political influence from the process and from that vantage appeared to be an attractive regulatory watchdog, he agreed with Wu that antitrust did not capture the core values of freedom of expression and equality of opportunity.

Subcommittee chairman Spencer Bachus (R-Ala.) suggested that FCC regs were a one-size-fits-all approach that could stifle innovation. He also suggested that the FCC might not have the person-power to oversee enforcement, given that it has only one administrative law judge, something he said he was just learning.

Bachus also suggested that using antitrust law would allow the government to capture all the players in the Internet ecosystem—like a Google or Netflix in case they were using their market power to discriminate—rather than just a subset of ISPs covered by net neutrality rules. Goodlatte seconded that, pointing out that Netflix had a third of Internet traffic during some peak periods, a fact he suggested he was just learning.

Wu said that while antitrust law was good for some things, it was not sufficient to insure the kind of openness and nondiscrimination that went beyond economics. For example, he said, an ISP that wanted to favor a certain speaker or political view, might not necessarily be economically benefitted by that form of discrimination.

Several Republicans on the panel immediately fired back that that smacked of the sort of FCC content regulation of broadcasting that limits their speech. Rep. Bob Goodlatte (R-Va.), chairman of the parent Judiciary Committee did not use the term "fairness doctrine," but spoke generally about an FCC speech balancing policy that had been excised.

The "fairness doctrine," was a discredited policy, which the FCC stopped enforcing in 1987, that required broadcasters to affirmatively seek out the other side of controversial public issues on its air. Some congressional Democrats talked about reviving it a decade ago in response to the rise of conservative talk radio, but the Obama administration said it opposed that effort and it was finally officially taken off the books under FCC chairman Julius Genachowski and after former FCC commissioner Rob McDowell pushed for its excision.

McDowell, who was a witness at Friday's hearing, agreed that Wu appeared to be describing a kind of "fairness doctrine" for the Web.

Rep. Darrell Issa (R-Calif.) suggested the FCC could and would start applying content regs like indecency regs on the Internet, pointing out that Bill Maher could not be on broadcast because he dropped too many F-bombs. Issa latched onto Wu's talk about the need to address issues like bias and political speech as evidence he was suggesting the FCC regulate Internet content.

Wu countered that FCC net neutrality regs were not content regs, but essentially the opposite, preserving diversity of speech by preventing discrimination. He also suggested Rep. Goodlatte did not understand the Internet and owed the Internet a debt of gratitude for the platform it provided for his own speech.

Republicans and the antitrust friendly witnesses were generally of the same mind that regulations stifle innovation and competition, while antitrust laws do not. The Democrats were generally agreed that, imperfections and all, FCC network neutrality rules were the best way to insure a free and open and innovative Internet.

The hearing also featured warnings about classifying broadband under Title II, and from McDowell about sending the wrong signal to other countries about regulating the Internet. McDowell also said he thought the D.C. Circuit had given the FCC the eye of a tiny legal needle and the commission was trying to thread a fat regulatory rope through it. He said he thought the FCC would probably fail for a third time.

Antitrust law is the way to go, he agreed.

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