Maureen Ohlhausen may have reignited the Battle of the Alphabet soup earlier this afternoon as she made the case at a Free State Foundation conference for greater if not sole Federal Trade Commission jurisdiction over the internet. Mrs. Ohlhausen argued that the Federal Communication’s ex-ante approach to regulating broadband, where the law creates silos or boxes within which future activity is analyzed to determine lawfulness, may have a negative impact on innovation. Given the speed at which technology changes, trying to fit a service into a regulation implemented before the innovation was given birth risk modifications to the service just to make the service fit in a box that may no longer be applicable.
The Federal Trade Commission’s approach, argues Mrs. Ohlhausen, is ex post and consumer focused; based on the past performance of a service with analysis of the harm the service may have caused a consumer versus trying to guess what harm a service could cause a consumer in the future. Determining the impact on consumer welfare, the change in the value consumers receive from market transactions, should be the approach to regulating the internet, Mrs. Ohlhausen opined. An ex post approach would be central to an overarching regulatory paradigm which would allow broadband providers flexibility in developing and providing innovative services while analyzing potential violations on a case-by-case basis.
Where might that leave the FCC? Would it be satisfied abandoning net neutrality regulation or its role in anti-trust determinations to focus on handing out spectrum licenses?
I don’t see this realignment of regulatory responsibility happening within the 113th Congress. We would need to see a Republican victory in the Senate with Boehner and company maintaining control of the House to have nary a chance of moving toward the appropriate rewrite in 114th Congress.