FCC Chairman Julius Genachowski and fellow Commissioner Robert McDowell laid out their differing views in testifying May 5 at a House subcommittee hearing examining the role of the agency with regards to net neutrality and how antitrust law might apply.
In his remarks before the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition, and the Internet, Genachowski said that the commission’s ad hoc approach to protecting Internet openness prior to his arrival as chairman was inadequate. It created “uncertainty among Internet stakeholders” that resulted in a “real schism” between Internet content and application entrepreneurs and broadband providers. The result was “a battle that was counterproductive for our economy and global competitiveness,” he said.
To address this battle, the commission launched a process in 2009 aimed at putting in place a framework to increase “certainty and predictability” that would be good for consumers, innovators and Internet service providers, said Genachowski.
According to the chairman, the framework is built on four rules of the road: transparency so consumers and innovators can get basic information to make “smart choices” about broadband networks; no blocking of lawful Internet content or services; a level playing field; and the flexibility for Internet service providers to manage their networks.
This framework culminated in December 2010 with commission adoption of net neutrality rules. “We completed the Internet freedom order in December, and to undo our framework would increase uncertainty, decrease investment and hurt job creation,” Genachowski said.
The FCC chairman added that allowing antitrust laws to guard against “violations of Internet freedom” would be inadequate because they would not sufficiently preserve “the freedom and openness of the Internet to provide enough certainty and confidence to drive investment in our innovation future.”
Testifying after the chairman, McDowell, who along with Commissioner Meredith Attwell Baker dissented on the December net neutrality vote, said he favored allowing the market to work and antitrust laws to guard against abuses.
“During my five years as a commissioner, my focus has been to support policies that promote consumer choice offered through abundance rather than regulation and its unintended consequences, whenever possible. In the absence of market failure, unnecessary regulations in the name of serving the public interest can have the perverse effect of harming consumers by inhibiting the constructive risk-taking that produces investment, innovation, competition, lower prices and jobs,” said McDowell during his testimony.
McDowell told the subcommittee that his dissent in the net neutrality vote was based on four factors: nothing is broken in the Internet access market requiring a fix; Congress never gave the commission the authority to act as it did; the order is likely to cause more harm than good; and antitrust and consumer protection laws exist to prevent and remedy the harms foreseen in the order.