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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:

“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, and more 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.”