The new chairman of the Federal Trade Commission says that his agency has the "resources and capability" to enforce network neutrality and has told Congress that under "the right circumstances" paid prioritization, blocking and throttling of internet content by ISPs that might advantage or disadvantage particular parts of the Internet could all be seen as unfair practices."
That came in a response to questioning from in a Senate Financial Services and General Government Subcommittee hearing on the FTC's and FCC's budget requests Thursday (May 17). Democratic ranking member Sen. Chris Coons (D-Del.) had asked whether Simons thought that conduct was actionable under the FTC's new authority.
It is regaining authority over ISPs access practices when the FCC's Restoring Internet Freedom order goes into effect June 11. The hearing came a day after the Senate voted to nullify that order, with Coons voting for and Lankford against.
Coons asked if Simons would come back to Congress and seek legislative clarity if he felt he did not have that authority, Simons said yes.
Simons was asked by Subcommittee chairman Sen. James Lankford (R-Okla.) whether the FTC "has what it needs to protect consumers and deal with inappropriate trade practices."
But Simons is taking a trust but verify approach, telling the Senate panel that the FTC was "conducting an inventory" just to make sure that is the case. He has only been in his post since May 1.
Simons said he had also talked to FCC chairman Ajit Pai, who has said the FCC is also willing to provide them resources, particularly technical resources. One knock on the new regime has been that the FTC is not the expert agency in the tech/telecom sector.
Lankford asked Pai, who was also testifying at the hearing, about the FCC's role in enforcing net neutrality,which is primarily enforcing the new transparency requirements. The chairman volunteered that the requirements could not be applied to edge providers, but that in terms of ISPs he said the FCC has made it clear that they have to disclose "any manner of businesses practice--blocking, throttling, paid prioritization--and if they don't "it is an FCC violation and we'll pursue it aggressively."
Asked if he thought the FTC had the authority it needed to regulate edge providers, Simons said they might need additional authority to regulate privacy and data security, particularly when it came to getting "remedial relief."
Pai and Simons, when asked by Coons, pledged to work together to insure that "net neutrality is a reality," as Coons put it, and that neither ISPs nor edge providers acted in an anticompetitive way that would lead to throttling or paid prioritization or a lack of transparency that would affect their ability to access the internet as they are used to doing.
Coons queried Pai on the UHF discount reinstatement and the Sinclair-Tribune merger and whether Pai would wait for a D.C. Circuit decision on the discount before ruling on the proposed merger, which relies on that discount for a merger that would otherwise constitute 72% audience reach when the national cap is 39%.
Coons also asked whether Pai what the national audience reach cap.
Since the FCC has an open proceeding looking at the cap in tandem with the discount, the reason Pai has given for restoring the discount until the FCC can consider them together, the chairman declined to weigh in, as he does with any open proceeding so as not to suggest he was prejudging it.
As to the merger, he said he would not commit to delaying a decision, but did not signal one was forthcoming in any event.
He pointed out that the FCC's informal shot clock on vetting the deal since early January and had no updated on what the time frame for completing that review would be and how that would dovetail with the legal proceeding. But Pai did say that the FCC has to base its decision on the facts in front of it and does not know when the circuit will issue its ruling and what that will be.
Sen. Patrick Leahy (D-Vt.) lit into Pai over net neutrality and media ownership. He said he disagreed with many of Pai's decisions, but went beyond that to say he thought Pai had shown "contempt" for the public, had "ignored" overwhelming public support for net neutrality, sought to "undermine the will of Congress" in media ownership rules, had engaged in "blatantly partisan" activity [he attended the conservative CPAC conference) and mocked those who disagreed with him in an ill-advised attempt at what he thought as humor (a reference to an online video). Leahy suggested it was Pai's attempt to "ingratiate" himself with President Trump.
Pai did not engage the senator after what was not a question but a lengthy observation.