Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC Commissioner Discusses Antitrust Regulation and the Internet, (Oct 29, 2012)

By Jeffrey May, J.D.

FTC Commissioner Maureen K. Ohlhausen offered her thoughts on how best to regulate the Internet at the MaCCI Law and Economics Conference on The Future of the Internet on October 26, 2012. In remarks—entitled “The Open Internet: Regulating to Save the Unregulated Internet?”—Ohlhausen said that her position was that “less regulation is arguably better than more and the nature of that regulation should come in the form of cautious and informed enforcement of existing antitrust and competition norms as well as consumer protection requirements.”

Ohlhausen expressed skepticism over the scope of proposed net neutrality rules and stated a preference for applying antitrust rules. The official suggested that there was no need for additional regulations that might ultimately do more harm than good, particularly given the dynamism in most technology markets and their sensitivity to burdensome regulation. “The antitrust and competition laws offer the right lens through which to view most network neutrality issues,” she explained. Ohlhausen also noted that technology markets are notoriously susceptible to regulatory failures. “[W]e should first look to our existing (well-stocked) inventory of antitrust, competition, and consumer protection laws before creating new, and perhaps counterproductive, regulations.”

Also discussed were “the theoretical fears raised by advocates of additional network neutrality regulation relate[d] to vertical conduct.” Ohlhausen noted that vertically-integrated “walled gardens” of “non-neutral” content pervade the history of the Internet. She suggested that, because vertical relationships offer many potential procompetitive efficiencies, inquiries into alleged blocking or discrimination must be a fact-intensive enterprise faithfully applying antitrust principles.

“While I have no doubt about the good intentions of all parties in this debate, I believe cautious and informed action will allow free markets to serve the greatest good,” Ohlhausen concluded.

News: Antitrust FederalTradeCommissionNews