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.