James Gattuso

Sensenbrenner and Antitrust: Bootstrapping Neutrality Regulation

At today’s Judiciary Committee mark-up session, Chairman James Sensenbrenner contributed a new and quite imaginative argument as to why neutrality regulation is ok: its not regulation at all. It–at least the Judiciary Committee’s version–is simply good old fashioned antitrust. Specifically he said:

Opponents of this legislation have sought to portray efforts to provide a meaningful remedy for anti-competitive misconduct by broadband providers as regulatory in nature. However, the antitrust laws have served as a competitive backstop against competitive abuse by market-dominant forces for over a century.

In other words, just move along, nothing new here that hasn’t been around for a century.

But wait a second. The provisions of the Sensenbrenner bill are very much the same, even using some of the same language as, many of the other “regulatory” bills out there. There are some differences of course–one key one is that Sensenbrenner has no role for the FCC, the provisions are to be enforced by the courts. But substantively the regulations imposed look very much the same.

Oops. Did I say “regulations”? I meant to say “antitrust laws”. Its not regulation, you see, because all the provisions are to be tacked on to the existing Clayton Act. That makes it part of that hundred-some year old antitrust law.

This is a nice feat of bootstrapping. In fact, maybe Congress could try it elsewhere. Having trouble funding the newest bridge to nowhere? Put it in as an amendment to the Clayton Act, and– “poof”– its antitrust law, not wasteful spending. Or maybe the immigration reform controversy could be settled that way–put it all at the end of the Clayton Act and its instantly part of the long antitrust tradition. The possibilities are endless.

The ironic thing is that it actually might make sense to apply existing antitrust law to broadband providers instead of creating a whole new regulatory scheme. In fact, the chairman of the FTC says that it already does apply.

But that’s not what the Judiciary Committee proposed. It proposed regulation. It should call it that.

May 25, 2006 | Comments |

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    It's not uncommon for Republicans to argue that "antitrust is not regulation." Even think tanks like the Progress and Freedom Foundation have taken that position.
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    making net neutrality part of our anti-trust legal structure *might* make some sense if we could be assured that it will be enforced. after all, we can no longer count on the FCC for anything meaningful since it seems bent on doing but two things these days; currying favor with the large bloc of small minded right-wing religious zealots by "cracking down" on dirty words and rolling over for whatever Big Content (RIAA, MPAA, the big 5 labels, movie studios) and Big Business decides is Good for AmeriKa.

    the root problem is that i don't buy my network access for the great stuff the network provider brings to the table. unfortunately, the network operators all seem like spoiled bratty kids whining about how content creators (who paid for their network connection the same way i paid for mine) are using up all their bandwidth as if they had something to offer on it that would be compelling enough to look at! the network operators just don't get it. i buy my access so i can go use google, yahoo!, tech lib front, yada yada NOT because i like SBC or RoadRunner's great content...

    if network operators succeed in doing this, there will be geeks everywhere trying to come up with something else in an awful big hurry...

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