Democracy & Technology Blog What’s wrong with current regulation of broadband services?
At a Saturday morning panel discussion at the Federalist Society moderated by Chief Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit, I asked whether any of the panelists feel that the Federal Trade Commission lacks jurisdiction pursuant to the FTC Act to combat against deceptive business practices and unfair competition in the market for broadband services.
Parul P. Desai, Policy Analyst at Consumers Union responded that there are limitations on the ability of consumer advocates to litigate which do not apply in actions by the Federal Communications Commission. Maureeen K. Ohlhausen, an attorney with Wilkinson, Barker, Knauer, LLP who has an FTC background, added that those limitations do not apply in the context of the Sherman Act and, I am not quite certain of her answer, perhaps other antitrust statutes as well.
Therefore, I gather there are some limitations on standing to litigate in matters involving deceptive business practices. These limitations are not specific to the broadband industry. Congress, in its considered judgment, has imposed these limitations generally, probably for a good reason.
In any event, if standing to sue the FTC is the issue, a vast expansion of the FCC’s jurisdiction is not the obvious answer.
Broadband is regulated. It is regulated by the leading agency which regulates dynamic, competitive industries (the FTC), not by a special-purpose agency that was created in 1934 to regulate communications monopolies from the smokestack era that no longer have monopoly power and, frankly, are fighting for their lives (the FCC). The FCC’s expertise is in regulating communications industries not subject to competition.