FTC Debunks the FCC's Favorite Excuse for Killing Net Neutrality

The Federal Trade Commission and the Federal Communications Commission are very different in our mandates and our legal authority. The FTC is, principally, a law enforcement agency. It is not a sector regulator like the FCC. There are key differences between conduct prohibited by the FCC’s Open Internet Order, and conduct that the FTC can reach now with our antitrust and consumer protection jurisdiction. Antitrust law is sufficiently flexible and dynamic to cover a wide range of activities. However, the laws are limited to prohibiting conduct that is anticompetitive, not simply perceived to be unfair or discriminatory. In the Open Internet Order, the FCC prohibited certain ISP behavior, such as blocking, throttling, and paid prioritization on essentially a per se basis. Now, some conduct, such as horizontal agreements between ISPs to fix prices, allocate markets, or divide customers would be a per se antitrust violation. These types of agreements are so manifestly anticompetitive that antitrust law has determined that they are illegal without looking into their effect on prices, quality, or innovation. But blocking, throttling, or paid prioritization would not be per se antitrust violations.