NetCompetition: Lax FTC Edge Enforcement Has Left 'Gaping' Hole

Says it is time to power up edge oversight, seeking Hill help if needed
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Scott Cleland, chairman of ISP-backed NetCompetition has some advice for the Federal Trade Commission and Justice Department: Cut out the lax antitrust enforcement of edge providers like Google, Amazon and Facebook and, if need be, seek new authority from Congress to police the edge.

The advice was not unsolicited. As Cleland points out, DOJ antitrust chief Makan Delrahim has called for a thoughtful dialog and fresh thinking about antitrust approaches to digital platforms.

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Cleland suggests that edge providers need the deterrent effect of FTC, DOJ and state attorneys general policing of the market, which is what ISPs will be getting under the new FCC net neutrality enforcement regime.

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But he focuses on the FTC. "In apparently myopically focusing on whether a specific company is an illegal monopoly that has harmed consumer welfare, it is evident the FTC has neglected a central part of its statutory mission of protecting the nation’s overall process of competition for a wide swath of America’s consumer demand and business supply to consumers," he says.

Cleland says it is the edge providers that are the bottleneck intermediary controlling access to information, ecommerce and social content sharing. He says edge providers"neither fairly represent the conflicts of interest of their multi-sided business models to consumers, nor do they have significant competition, independent accountability, or governmental vigilance to ensure that these Internet...bottlenecks are honest brokers of information and fair intermediaries of economy-wide interactions."

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Cleland says the FTC's hands off approach to the edge has left a "gaping hole" in consumer protection from unfair competition or deceptive acts or practices.

"If new FTC chairman [Joseph] Simon’s pledged FTC retrospective process into past FTC antitrust non-enforcement determines that existing FTC authority is insufficient to address the above evident “unfair and deceptive acts or practices,” the FTC should request new authority from Congress to address them urgently," says Cleland.

In the wake of fake news and Russian election meddling, lax privacy protections, sex trafficking, and accusations of censorship of conservative and religious speech and minority underrepresentation in Silicon Valley, there has been a bipartisan call for at least contemplating new regulations targeted to social media nets and other edge players.

Cleland's blog comes days after the FTC got three new commissioners and a new chairman, so he is looking to get them thinking early and often about broadband regulation. 

The FTC will be a bigger player in that space with the FCC's reclassification of ISPs as information service providers, which means the FTC will have enforcement authority over network neutrality, both ISPs and the edge, though with some assist from the FCC and Justice.

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