The FCC and Federal Trade Commission have drafted a memorandum of understanding (MOU) on how they will divvy up enforcement of ISPs promises and disclosures about their business practices and network management practices after the FCC eliminates most network neutrality rules.
After the rule rollback becomes official--it is scheduled to be voted on Dec. 14 -- and FCC chair Ajit Pai has said will be approved -- the FCC will investigate and take actions against any violations of the order's transparency requirements, under which ISPs have to disclose any blocking, throttling, paid prioritization or congestion management. That means if they don't disclose what they are doing, the FCC's Enforcement Bureau will handle it.
The FTC will investigate ISPs for any divergence from what they say they are, or are not, doing, as well as any other practices the FTC deems unfair or deceptive. That unfairness could include anticompetitive blocking or throttling or paid prioritization.
And, likely to address the criticism that the FCC was abdicating its subject matter expertise by rolling back the regs and letting the FTC--and DOJ if the conduct violates antitrust--take the lead, the MOU says both will "broadly share" legal and technical expertise, including sharing informal complaints and collaborating on consumer and industry outreach.
“The Memorandum of Understanding will be a critical benefit for online consumers because it outlines the robust process by which the FCC and FTC will safeguard the public interest,” Pai said in a statement. “Instead of saddling the Internet with heavy-handed regulations, we will work together to take targeted action against bad actors. This approach protected a free and open Internet for many years prior to the FCC’s 2015 Title II Order and it will once again following the adoption of the Restoring Internet Freedom Order.”
“The FTC is committed to ensuring that Internet service providers live up to the promises they make to consumers,” added acting FTC chair Maureen K. Ohlhausen in announcing the MOU.
The two teamed up on an MOU when Title II reclassification shifted oversight of broadband privacy from the FCC to the FTC back in 2015. That privacy oversight shifts back to the FTC with Pai's planned re-reclassification of ISPs under Title I, non-common carrier regs.
Public Knowledge, which opposes the elimination of the regs, was not assuaged by what it called an "honor system" approach to maintaining an open internet.
"There is no comfort in this announcement from the FTC," said Public Knowledge VP Chris Lewis. "Not only is the FCC eliminating basic net-neutrality rules, but it’s joining forces with the FTC to say it will only act when a broadband provider is deceiving the public. This gives free reign to broadband providers to block or throttle your broadband service as long as they inform you of it."
The major ISPs have said they will make enforceable promises not to block or throttle or "unreasonably discriminate," though paid prioritization is one of those potentially reasonable discriminations they will likely be exploring, as they did with zero rating plans the Pai FCC has signaled are not a threat to an open net.