Competition Policy for an Open Internet Ecosystem
In my Georgetown Law Technology Review article, I propose a new policy framework to restore an open Internet ecosystem. In my first post on this topic, I made the argument for such a framework, and in my second post, I discussed the policy recommendations in two of the policy categories, regulatory oversight, and privacy. In this post, I’ll discuss my recommendations for perhaps the most difficult and broadest issue to address - competition.
Improving competition for broadband internet access service (BIAS) providers and for the largest search, social media, and e-commerce sites will require the most change and oversight but may have the greatest impact in opening the Internet ecosystem. BIAS providers and platforms perform different roles and operate under different business models; solutions for promoting competition in each industry are similarly diverse. However, improvements to antitrust law can be applied across the board and well beyond the Internet ecosystem.
Recommendations for BIAS Providers
Given the high barriers to entry in the BIAS market, restoring competition will necessitate re-establishing successful policies that were eliminated at the behest of the broadband industry. In addition, local communities should be able to determine whether their citizens would benefit from a competitive broadband network built in whole or in part by the community. Either way, it is critical that competitors have access to the means for providing service, including poles, conduits, and apartment buildings. Incumbent BIAS providers often control access to this type of critical infrastructure and make it very difficult for competitors to access it.
Therefore, Congress should:
- Restore the 2015 network neutrality rules that prohibit blocking, throttling, and paid prioritization by BIAS providers.
- Pre-empt state laws that place restrictions on the building and/or expansion of broadband networks built by cities, towns, and other localities.
- Restore the requirement that dominant BIAS providers permit last-mile competitors to share their networks.
- Require incumbent BIAS providers and local communities to give potential competitors the same access to poles, conduits, and apartment buildings that incumbents have.
Recommendations for Online Platforms
Unlike the solutions to competition concerns in the BIAS market, there are no tried-and-true solutions for restoring competition to the markets for search, social media, e-commerce, and other dominant platforms.
Thus, Congress should proceed with some (but not too much) caution. At a minimum, these solutions should include:
- A prohibition on platform discrimination in favor of affiliated companies, content, or sellers.
- A requirement that platform providers provide users access to all of their collected data in a format that can be used easily by competing platforms (e.g, a read/write API with the same data the service provider has) or third-party agents who negotiate with competing platforms for the kind of privacy protection the user wants.
- Recommendations from the Government Accountability Office, the Federal Trade Commission, or the Department of Justice for other laws and policies that help promote competition between online platforms.
Recommendations for Both Industries
Federal courts have limited much of antitrust enforcement to instances where either prices have risen or output has dropped, and the Supreme Court has closed the courthouse door to antitrust actions that overlap with regulatory frameworks and made it almost impossible for a plaintiff to succeed in an antitrust lawsuit involving two-sided markets. The good news is that some members of Congress are taking note and offering ways to strengthen antitrust enforcement.
To bring antitrust law back to its roots in limiting the market and political power of large trusts, Congress should:
- Pass legislation that allows for private antitrust lawsuits even where there may also be a regulatory regime that may address the same issue.
- Pass legislation that makes it clear that it is not necessary to show that both sides of a two-sided market must be harmed for a plaintiff to bring a successful case under the Sherman Act.
- Pass S. 1812, the Consolidation Prevention and Competition Promotion Act, which, among other things:
- Shifts the burden of proof for large mergers ($5 billion in value for one company or $10 billion combined);
- Prohibits mergers that are “materially likely” to harm competition (as opposed to likely to substantially harm competition); and
- Codifies an intent to review vertical transactions.
- Task the FTC or the Department of Justice with making recommendations for other ways to strengthen antitrust laws.
Improving competition for BIAS providers and for the largest search, social media, and e-commerce sites will require the most change and oversight but may have the greatest impact in opening the Internet ecosystem. BIAS providers and platforms perform different roles and operate under different business models; solutions for promoting competition in each industry are similarly diverse. However, improvements to antitrust law can be applied across the board and hopefully, well beyond the Internet ecosystem.
Gigi B. Sohn is a Distinguished Fellow, Georgetown Law Institute for Technology Law & Policy and Benton Senior Fellow and Public Advocate. She is one of the nation’s leading public advocates for open, affordable and democratic communications networks. For nearly thirty years, she has worked across the country to defend and preserve the fundamental competition and innovation policies that have made broadband Internet access more ubiquitous, competitive, affordable, open and protective of user privacy.