[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]





                 NET NEUTRALITY: IS ANTITRUST LAW MORE
                      EFFECTIVE THAN REGULATION IN
                  PROTECTING CONSUMERS AND INNOVATION?

=======================================================================


                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                           REGULATORY REFORM,
                      COMMERCIAL AND ANTITRUST LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                       
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 20, 2014

                               __________

                           Serial No. 113-111

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov
      
      
     

                                   ______

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                   SPENCER BACHUS, Alabama, Chairman

                 BLAKE FARENTHOLD, Texas, Vice-Chairman

DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr.,
TOM MARINO, Pennsylvania               Georgia
GEORGE HOLDING, North Carolina       SUZAN DelBENE, Washington
DOUG COLLINS, Georgia                JOE GARCIA, Florida
JASON T. SMITH, Missouri             HAKEEM JEFFRIES, New York
                                     DAVID N. CICILLINE, Rhode Island

                      Daniel Flores, Chief Counsel
                      
                            C O N T E N T S

                              ----------                              

                             JUNE 20, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Ranking Member, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust Law     2
The Honorable Spencer Bachus, a Representative in Congress from 
  the State of Alabama, and Chairman, Subcommittee on Regulatory 
  Reform, Commercial and Antitrust Law...........................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     5

                               WITNESSES

The Honorable Joshua D. Wright, Commissioner, Federal Trade 
  Commission
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
The Honorable Robert M. McDowell, former FCC Commissioner, and 
  Visiting Fellow, Hudson Institute, Inc., Center for the 
  Economics of the Internet
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19
Bruce M. Owen, Morris M. Doyle Centennial Professor in Public 
  Policy, and Director, Stanford Public Policy Program, Stanford 
  University
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44
Tim Wu, Professor of Law, Columbia Law School
  Oral Testimony.................................................    70
  Prepared Statement.............................................    72

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Ranking Member, Subcommittee on Regulatory Reform, 
  Commercial and Antitrust Law...................................    78
Material submitted by the Honorable Suzan DelBene, a 
  Representative in Congress from the State of Washington, and 
  Member, Subcommittee on Regulatory Reform, Commercial and 
  Antitrust Law..................................................    90

                                APPENDIX
               Material Submitted for the Hearing Record

Supplemental Material submitted by the Honorable Robert M. 
  McDowell, former FCC Commissioner, and Visiting Fellow, Hudson 
  Institute, Inc., Center for the Economics of the Internet......    98
Supplemental Prepared Statement submitted by Bruce M. Owen, 
  Morris M. Doyle Centennial Professor in Public Policy, and 
  Director, Stanford Public Policy Program, Stanford University..   141
Letter from The American Antitrust Institute (AAI)...............   155

 
                 NET NEUTRALITY: IS ANTITRUST LAW MORE


                      EFFECTIVE THAN REGULATION IN


                  PROTECTING CONSUMERS AND INNOVATION?

                              ----------                              


                         FRIDAY, JUNE 20, 2014

                       House of Representatives,

                  Subcommittee on Regulatory Reform, 
                      Commercial and Antitrust Law

                      Committee on the Judiciary,

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 9:03 a.m., in 
room 2141, Rayburn Office Building, the Honorable Spencer 
Bachus, (Chairman of the Subcommittee) presiding.
    Present: Representatives Bachus, Goodlatte, Farenthold, 
Issa, Marino, Collins, Smith, Johnson, Conyers, DelBene, 
Jeffries, and Cicilline.
    Staff Present: (Majority) Anthony Grossi, Counsel; Ashley 
Lewis, Clerk; Christine Bealer, Law Clerk; (Minority) Slade 
Bond, Counsel; James Park, Counsel; and Rosalind Jackson, 
Professional Staff Member.
    Mr. Bachus. The Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law hearing will come to order.
    Without objection, the Chair is authorized to declare a 
recess at any time.
    At this time, we will have our opening statements.
    Would the Chairman of the full Committee like to go first?
    Mr. Goodlatte. If you like, Mr. Chairman, I would be happy 
to.
    Mr. Chairman, thank you for holding this hearing.
    Regulation and antitrust law have long had an uneasy 
relationship. Antitrust law serves to protect a competitive 
process by prosecuting anticompetitive conduct if and when it 
occurs. Regulation typically dilutes or casts aside reliance on 
antitrust enforcement and attempts to constrain or direct 
market forces by imposing new rules of conduct.
    These approaches generally are at odds with each other and 
a natural tension has arisen between the two.
    There are few more important issues that will impact the 
future of the Internet than the question of whether to apply 
antitrust law or regulation to protect the Internet from 
anticompetitive and discriminatory conduct.
    I want to thank Chairman Bachus for holding today's hearing 
on this critical question.
    Proponents of imposing additional regulation on the 
Internet marketplace argue that it is needed to encourage 
competition and promote innovation. I am deeply skeptical of 
these claims.
    In my experience, regulation generally stifles rather than 
facilitates competition and innovation. In fact, it is my 
belief that the Internet has flourished precisely because it is 
a deregulated market.
    That is not to say that we should stand by and allow 
companies to engage in discriminatory or anticompetitive 
activities.
    I believe that vigorous application of the antitrust laws 
can prevent dominant Internet service providers from 
discriminating against competitors' content or engaging in 
anticompetitive pricing practices.
    Furthermore, antitrust laws can be applied uniformly to all 
market participants, not just to Internet service providers, to 
ensure that improper behavior is prevented and prosecuted.
    In 2007, the Department of Justice expressed its preference 
for antitrust enforcement over regulation when it warned that, 
``The FCC should be highly skeptical of calls to substitute 
special economic regulation of the Internet for free and open 
competition enforced by the antitrust laws.''
    DOJ further stated that regulation ``could in fact prevent, 
rather than promote, optimal investment and innovation in the 
Internet, with significant negative effects for the economy and 
consumers.''
    I understand that the nature of the Internet and the speed 
at which the market evolves could present challenges to 
enforcing the existing antitrust laws in the Internet context. 
We may need to consider amending the current antitrust laws to 
ensure that they can be applied promptly and effectively to 
protect the competitive nature of the Internet marketplace.
    The Judiciary Committee has long played a role in ensuring 
that antitrust laws are properly equipped and can be applied 
effectively in the telecommunications industry. This Committee 
will continue to play a key role advocating for strong 
antitrust enforcement and, certainly, will examine these issues 
closely to the extent telecommunications laws are rewritten 
over the coming years.
    I look forward to hearing from today's witnesses on this 
important debate, and I yield back the balance of my time.
    Mr. Bachus. I thank the Chairman of the full Committee, Mr. 
Goodlatte.
    Now I recognize the Ranking Member, Mr. Hank Johnson of 
Georgia, for his opening statement
    Mr. Johnson. Thank you, Mr. Chairman.
    The modern Internet is a powerful engine for social 
enrichment and, I would argue, for basic freedom in America and 
perhaps in other locations throughout the world, where the 
culture has attained this degree of intellect and innovation.
    Whether it is educational opportunities like the Khan 
Academy channel on YouTube, Starbucks' recent announcement to 
offer its employees a free college education online through 
Arizona State University, or online hackathons that equip young 
minorities with tools to thrive in the innovation economy, 
consumers everywhere benefit from content services that 
educate, enrich, and connect us together.
    It is no mystery why the United Nations lists Internet 
penetration as a key metric in reducing poverty. We all succeed 
when more members of society have access to such important 
tools online for productivity, education, and, indeed, personal 
well-being.
    That is why today's hearing is such an important 
opportunity to discuss the best path forward to advance an open 
Internet. I strongly and unequivocally believe in an open 
Internet.
    Openness goes beyond economic concerns like growth and 
competition. Openness embraces our very core value as 
Americans, equality of opportunity. If our ideas are good 
enough, they should have a chance.
    Openness also separates us from closed, autocratic 
societies that limit the educational and social opportunities 
of their people.
    Look no further than the Great Firewall of China, which has 
established barriers to free expression, education, and 
cultural enrichment, and stunted the opportunity and growth of 
China's people.
    Undoubtedly, antitrust agencies have certain advantages--
like a prosecutorial mindset and a removal from political 
influence--that make them attractive as regulatory watchdogs.
    But as Tim Wu will testify later in today's hearing, the 
current framework for antitrust law is designed for every kind 
of business in the world, but is a poor fit for noneconomic 
values like openness, freedom of expression, and, indeed, 
equality and freedom.
    It is also abundantly clear that the remarkable success 
stories of the first large Internet startups--Google, Amazon, 
and Yahoo--were not written in a regulatory vacuum. Rather, 
these companies all benefited from a regulatory ecosystem that 
encouraged the widespread deployment and adoption of broadband 
Internet.
    As an expert agency with 80 years of expertise over 
telecommunication services and, more recently, information 
services like the Internet, the Federal Communications 
Commission has been at the forefront of crafting regulations 
that not only encourage growth and competition, but also 
advance noneconomic values like equality of opportunity and 
fairness.
    Indeed, as the D.C. Circuit recognized earlier this year in 
Verizon v. FCC, regulations that ensure Internet openness have 
fostered a ``virtuous circle'' of both social and economic 
fruit. Although the court ultimately vacated the open Internet 
order in Verizon, the D.C. Circuit strongly upheld the 
commission's basis for promulgating net neutrality rules under 
Section 706 of the Telecommunications Act of 1996, precisely 
because Congress mandated the commission to encourage broadband 
deployment to advance this virtuous cycle of social and 
economic growth.
    There is little doubt in my mind that the D.C. Circuit 
blueprint in Verizon aptly demonstrates the commission's 
authority to promulgate rules to protect the open Internet 
through its Section 706 mandate.
    But the commission shouldn't have to rely on this authority 
alone to uphold a common goal that countless Americans share. 
There is wide bipartisan agreement that updating the 
Telecommunications Act of 1996 is long overdue.
    Yes, we all enjoyed the thrill of logging on to AOL or 
other Internet service providers over our dial-up modems in the 
1990's, but the Internet has changed since then. So should our 
laws.
    In closing, I thank the Chair for holding today's hearing. 
As the sole Committee with jurisdiction over antitrust law, I 
look forward to working together with my Republican colleagues 
to ensure that the next great communications act upholds the 
common principles of competition and opportunity and equality 
and freedom, these being things that we all share.
    I look forward to today's testimony, and I yield back.
    Mr. Bachus. I thank the gentleman from Georgia.
    I want to welcome you to the hearing today. The hearing 
today is entitled ``Net Neutrality: Is Antitrust Law More 
Effective than Regulation in Protecting Consumers and 
Innovation?''
    So we are not dealing with the whole subject of net 
neutrality or some time maybe more descriptive ``network 
neutrality.'' A lot of people don't know what the ``net'' is, 
but I think it refers to the network.
    Let me say from the onset that our focus of the hearing is 
not on any specific agency proposals or any regulatory 
proposals, although they will undoubtedly be referred to during 
the hearing.
    Rather, the interest of the Judiciary Committee is whether 
the application of antitrust laws would be a more effective 
approach to protecting consumers and promoting innovation in 
this arena than the long, frequently contentious, and sometimes 
arbitrary, Federal regulatory process.
    It is becoming increasingly hard to recall when the 
Internet was not an integral part of our lives. It spurred new 
technologies, created jobs, established dynamic marketplace for 
goods and ideas. It is a wonderful educational tool.
    Fast-spreading technologies have always attracted 
significant interest because of public policy issues they 
raise. As a railroad attorney, I have studied the history of 
the railroads, and that was always a struggle between 
development of rails and regulation.
    And many of you who know that industry, overregulation 
almost killed the industry before the Staggers Act. It revived 
itself only because of the scaling down of regulation. But even 
today, there are tremendous issues in that industry, as well as 
this industry, public interest, public safety, et cetera.
    And these issues with the network deal with issues 
including access, competitive balance, and the tension between 
the private interest and public interest, between regulation 
and innovation. So it is always a balancing act.
    On May 15, the Federal Communications Commission proposed a 
rule, marking its third attempt to address the issue of net 
neutrality. Its two previous attempts were struck down by the 
courts.
    As regulatory proceedings continue to stretch on, a 
question I have is whether there may be a more efficient and 
more effective way to safeguard against potential 
discriminatory behavior than Federal rulemaking. That is where 
antitrust law comes in.
    Antitrust law has a number of benefits to consider. 
Antitrust law and the standards applied by the courts have 
developed, evolved, and been refined over decades. This stands 
in contrast to newly proposed regulations that include untested 
definitions and approaches, which would be interpreted and 
enforced by a constantly rotating commission. And the courts, 
on many occasions, would be dealing with cases of first 
impression, as opposed to established case law.
    Antitrust law uniformly applies to all participants in the 
Internet marketplace. Recent FCC regulations, by comparison, 
would only apply to a smaller group of Internet service 
providers. Antitrust law prosecutes conduct once it occurs, and 
determines on a case-by-case basis whether a violation has 
occurred. Regulation is a one-size-fits-all approach, and 
imposes a burden on all regulated parties, regardless of 
whether the parties actually engaged in improper conduct. These 
regulations could also stifle legitimate and necessary 
innovation before it happens.
    And then you have the different approaches that different 
countries take, although the network or the Internet is a 
worldwide system.
    Antitrust law violations may be brought by both private 
actors and enforcement agencies equipped with lawyers, 
economists, technicians who have decades of experience policing 
anticompetitive conduct. Regulatory violations typically may be 
pursued only by a select group of defined parties and the 
regulatory agency.
    Notably, the FCC only has one single administrative law 
judge, and that is something that I was even not aware of 
before this hearing.
    These are only some of the factors that should be 
considered when determining whether an antitrust or regulatory 
approach should be taken to protect Internet users from 
anticompetitive conduct.
    Today's witnesses are very distinguished and have 
perspectives from each of the relevant agencies, the FCC, the 
Federal Trade Commission, and the Department of Justice.
    And I noticed Commissioner Wright is here, so we actually 
have one of our sitting commissioners. We are glad you are 
joining.
    I look forward to hearing their testimony on the benefits 
and limitations of using antitrust law to protect consumers and 
innovation.
    At this time, I recognize the gentleman from Michigan, Mr. 
Conyers, the Ranking Member of the full Committee, former 
Chairman, for his opening statement.
    Mr. Conyers. Thank you so much, Chairman Spencer Bachus, 
for holding what I consider an important hearing on net 
neutrality and the role of antitrust in ensuring a free and 
open Internet. This should be a very interesting hearing, to 
say the least.
    This Committee has a central role in studying the issue of 
net neutrality, and more generally, competition on the 
Internet, and I appreciate the Chairman's decision to assert 
our jurisdiction.
    Turning to the specific question of whether antitrust is 
more effective than regulation in addressing net neutrality, we 
should keep in mind that we need a regulatory solution to 
address potential threats to net neutrality, and must allow the 
Federal Communications Commission to do its job.
    Congress created the FCC to develop expertise so that it 
could properly regulate the complex telecommunications 
industry. Any FCC rules to address net neutrality would have 
the benefit of addressing some potential threats to net 
neutrality before they fully materialize. And it could do so in 
a manner that would be more comprehensive than the piecemeal 
approach of antitrust enforcement.
    Additionally, having a set of best practices enshrined in 
rules would provide certainty for the industry. The FCC's 
efforts, therefore, must be given the opportunity to develop.
    And in developing its rules to ensure a free and open 
Internet, the FCC should incorporate the following principles.
    Broadband network providers should be prohibited from 
failing to provide access to its broadband network for any 
provider of content applications or services on reasonable and 
nondiscriminatory terms.
    Broadband network providers should be prohibited from 
blocking, impairing, or discriminating against or otherwise 
interfering with the ability of anyone to use a broadband 
service to use or access lawful content applications or 
services on the Internet.
    And there should be strong transparency requirements 
regarding clear disclosure to users of information concerning 
any terms, conditions, or limitations on the broadband network 
service.
    The FCC began its latest rulemaking process only a month 
ago, and so we must give time to allow this process to proceed.
    To the extent that we do look to antitrust law as a way of 
ensuring net neutrality enforcement of existing antitrust law, 
it would be insufficient. Under current antitrust law, there is 
relatively little that antitrust enforcers can do outside the 
merger review context to address the conduct of a regulated 
industry like broadband Internet service with respect to 
enforcing net neutrality principles.
    Through a series of decisions, the Supreme Court has 
limited the potential to successfully pursue claims under the 
Sherman Antitrust Act arising in the net neutrality context. 
Moreover, exclusive reliance on antitrust enforcement, while 
having the benefit of a more nuanced and fact-specific approach 
to the problem, would also be a cumbersome, more limited, more 
resource-intensive, and after-the-fact way to develop a 
regulatory regime for net neutrality.
    Another potential approach would be for the Federal Trade 
Commission to use its authority under Section 5 of the Federal 
Trade Commission Act to stop unfair methods of competition.
    While I hold an expansive view of Section 5, to the extent 
that this approach goes beyond the scope of the Sherman Act or 
other antitrust laws, it would be very controversial, as some 
of my friends on the other side of the aisle would be the first 
to note. Moreover, antitrust law is not sufficiently broad in 
scope, as it does not address the noneconomic goals of net 
neutrality, including the protection of free speech and 
political debate.
    Our former Chairman of Judiciary, James Sensenbrenner, and 
Zoe Lofgren and I introduced bipartisan legislation in 2006 to 
strengthen antitrust law to address net neutrality in part 
because the FCC was doing too little at that time, in my view.
    And I certainly am open to suggestions on how antitrust law 
can be better tailored to address net neutrality concerns. But 
if we go down that path, current law must be modified to codify 
net neutrality principles.
    So whether one supports a more antitrust approach or a more 
regulatory approach, inaction by Congress and regulators is not 
an option, as potential threats to net neutrality remain 
present.
    And in my opening statements in 2008 and 2011 on this very 
same issue, I noted that in many parts of our country, 
consumers have the choice of only one or two broadband Internet 
service providers that effectively function as monopolies or 
duopolies. I noted then that the market power that these 
broadband providers enjoy could lead to deferential treatment 
of content carried by the provider, depending on how much a 
customer pays or the financial incentives for discriminating 
for or against given content.
    The concerns I noted may have only grown since then, 
particularly in light of increasing consolidation in the 
telecommunications industry that may result in even less 
choice, less innovation, higher costs, and more power in the 
hands of fewer broadband providers.
    And having given you that impartial view of my position on 
this matter, I yield back the balance of my time and thank the 
Chairman of the Subcommittee.
    Mr. Farenthold [presiding]. Thank you very much.
    And I have taken the Chair for Mr. Bachus, who was called 
away for votes in another Committee that he serves on.
    Without objection, other Members' opening statements will 
be made part of the record.
    We really have a great panel today, and I would like to 
begin by introducing our witnesses.
    Commissioner Josh Wright is a sitting Commissioner at the 
Federal Trade Commission. He was sworn in January 1, 2013, to a 
term that expires in September 2019. Prior to joining the 
commission, Commissioner Wright was a professor at George Mason 
University School of Law and held a courtesy appointment in the 
Department of Economics. He is a leading scholar in antitrust 
law, economics, and consumer protection, and has published more 
than 60 articles and book chapters, coauthored a leading 
casebook, and edited several books and volumes focusing on 
these issues.
    Commissioner Wright also served as coeditor of the Supreme 
Court Economic Review, and was a senior editor of the Antitrust 
Law Journal.
    Commissioner Wright previously served the FTC in the Bureau 
of Competition as its inaugural scholar in residence from 2007 
to 2008.
    He is focused on enforcement matters and policy. His return 
to the FTC marks his fourth stint at the agency after having 
served both in the Bureau of Economics and Bureau of 
Competition from 1997 and 1998, respectively.
    Prior to his tenure at George Mason, Commissioner Wright 
clerked for Justice James Selna of the U.S. District Court for 
the Central District of California. Commissioner Wright 
graduated with honors from the University of California, San 
Diego, and received his J.D. and Ph.D. from UCLA.
    Mr. Robert McDowell, Commissioner McDowell, is former 
Commissioner of the Federal Communications Commission. He was 
appointed by Presidents George W. Bush in 2006 and Barack Obama 
in 2009, and unanimously confirmed by the U.S. Senate each 
time. His second nomination made him the first Republican 
appointed by President Obama to an independent agency.
    During his tenure at the FCC, Commissioner McDowell worked 
continuously to forge a bipartisan consensus in adopting 
policies to promote economic expansion, investment, innovation, 
competition, and consumer choice.
    The Washington Post called him an independent force at the 
FCC, while Broadcasting & Cable magazine described his tenure 
as statesmanlike.
    Commissioner McDowell has also been an official member of 
the U.S. diplomatic delegation working on treaty negotiations 
and international conferences covering global spectrum and 
telecom policies.
    Prior to joining the FCC, Commissioner McDowell worked in a 
senior position in the telecommunications industry for 16 
years.
    He graduated cum laude from Duke University and received 
his law degree from the College of William and Mary School of 
Law.
    Professor Bruce Owen is Morris M. Doyle Centennial 
Professor in Public Policy at Stanford University and a senior 
fellow in the Stanford Institute for Economic Policy Research. 
He directs the Stanford Public Policy Program, which offers 
undergraduate and graduate degrees in public policy analysis.
    Professor Owen was the chief economist in the office of 
Telecommunications Policy at the White House under President 
Nixon, as well as chief economist in the Antitrust Division of 
the Department of Justice under President Carter.
    Following his public post, he taught economics at both Duke 
and Stanford. Professor Owen has published numerous books and 
articles on mass media, economics, telecommunications, and 
regulatory policy, among other topics.
    Professor Owen received his B.A. from Williams College and 
earned his Ph.D. at Stanford. Welcome.
    Professor Tim Wu is a professor of law at Columbia Law 
School in New York City, where he teaches courses in, among 
other things, communications law and intellectual property. 
Professor Wu has also taught at the law schools of Harvard, 
Stanford, University of Chicago, and the University of 
Virginia.
    Professor Wu recently served as senior adviser in the 
Competition and Consumer Protection Division at the Federal 
Trade Commission. He is also widely credited with coining the 
term ``net neutrality'' through the publication of his paper, 
``Network Neutrality, Broadband Discrimination.''
    Professor Wu clerked for Judge Richard Posner at the 
Seventh Court of Appeals, and Supreme Court Justice Stephen 
Breyer.
    Professor Wu received a bachelor of science degree in 
biochemistry from McGill University and his law degree from 
Harvard, magna cum laude.
    Each of the witnesses' statements will be entered into the 
record in its entirety, and I ask that each witness please 
summarize your testimony in 5 minutes or less.
    You have some indicators in front of you. Much like the 
traffic signal, green means go, yellow means hurry up, and red 
means stop.
    So we will get going, and we will start with Commissioner 
Wright. You are recognized for 5 minutes.

  TESTIMONY OF THE HONORABLE JOSHUA D. WRIGHT, COMMISSIONER, 
                    FEDERAL TRADE COMMISSION

    Mr. Wright. Chairman Goodlatte, Chairman Bachus, Ranking 
Members Conyers and Johnson, and Members of the Subcommittee, 
thank you for the opportunity to appear before you today. My 
name is Josh Wright, and I am a Commissioner at the Federal 
Trade Commission.
    I am pleased to join you to discuss competition and 
regulation in the broadband sector and, more specifically, the 
issues highlighted by the ongoing debate surrounding net 
neutrality.
    I should make clear at the outset that the views I express 
today are my own and do not necessarily reflect the views of 
the Federal Trade Commission or any other commissioner.
    Today, I will focus my comments upon competition policy and 
regulation in broadband markets from a consumer welfare 
perspective. Consumer welfare is the lodestar of competition 
policy and antitrust, and it guides decisionmaking at the FTC.
    The consumer welfare approach harnesses the power of 
rigorous economic analyses to inform competition policy and 
antitrust.
    This emphasis on consumer welfare makes antitrust 
particularly well-suited for tackling complex issues and 
questions related to broadband competition, and for addressing 
the important issues raised in the net neutrality debate.
    More specifically, the ``rule of reason'' analytical 
framework that lies at the core of antitrust analysis can be 
deployed effectively to analyze business practices in the 
broadband sector and to separate conduct that increases 
consumer welfare from those business practices that make 
consumers worse off.
    I would like to begin by discussing net neutrality from an 
economic perspective. At its heart, the net neutrality debate 
concerns the competitive effects of what economists would 
describe as vertical contractual arrangements between broadband 
providers and content providers.
    Put another way, net neutrality is about the fear that 
broadband providers will enter into business arrangements that 
disadvantage certain content providers, harm competition, and 
thereby leave consumers and Internet users worse off.
    For example, a broadband provider might enter into an 
exclusive contract with an online video site to foreclose a 
rival video site's access to the broadband provider's 
subscriber. This type of potential competitive concern is 
grounded in antitrust economics, and more specifically, in the 
``raising rivals costs'' literature familiar to students of 
antitrust.
    Proponents of net neutrality traditionally have responded 
to these types of concerns by favoring a rigid, categorical ban 
or other significant restrictions upon broadband providers' 
ability to enter into vertical contractual relationships.
    Fearing that any network discrimination by broadband 
providers creates undue risk of competitive harm, they often 
have argued for a one-size-fits-all approach prohibiting such 
arrangements. This approach, however, fails to recognize the 
fundamental economic point that most vertical contractual 
relationships benefit consumers.
    The economic literature is replete with examples and 
empirical evidence that vertical contracts create consumer 
benefits by reducing double marginalization, preventing free-
riding, facilitating new business models on entry, and aligning 
manufacturer and distributor incentives.
    Consumers benefit from these efficiencies because they are 
passed on to them in the form of lower prices, increased 
output, more content, higher quality, and greater innovation.
    Moreover, considerable empirical evidence further supports 
the view that vertical contracts are more often than not 
procompetitive. These empirical studies cut sharply against the 
idea that broadband providers necessarily will use such 
arrangements in a way that harms competition.
    The marketplace experience and learning also demonstrates 
that so-called non-neutral business models deployed by 
providers have proven highly beneficial to consumers.
    For instance, in 2002, a fledging Google was able to 
strategically achieve economies of scale by beating out its 
competition in a bid to become the default search engine on 
AOL, then the country's leading Internet service provider, by 
offering a substantial financial guarantee.
    To be clear, the economic literature and empirical evidence 
does not claim that vertical contracts never create competitive 
concerns. The correct regulatory question is not whether 
vertical contracts can harm consumers, but rather what 
regulatory structure and legal rules will best promote consumer 
welfare in this context?
    Any economically coherent answer to that question must, in 
my view, begin with the fundamental observation and market 
experience that the business practices at the heart of the net 
neutrality debate have generally been procompetitive.
    In light of the economic theory and evidence, in my view, 
antitrust offers a superior analytical framework--one that 
focuses upon consumer welfare--to address any potential 
anticompetitive concerns in the broadband sector.
    Over the past century, antitrust jurisprudence has evolved 
a highly sophisticated ``rule of reason'' balancing approach 
for investigating whether vertical arrangements are 
anticompetitive in practice. The ``rule of reason'' framework 
is a flexible one that allows consumers to benefit from the 
vast number of vertical agreements that help consumers while 
also creating a means, grounded in sound economics and 
evidence, for identifying those contracts that harm consumers.
    In closing, it is my belief that antitrust offers a 
superior approach to addressing anticompetitive concerns in 
broadband markets in a manner that achieves the best result for 
consumers.
    I will be happy to answer any questions. Thank you.
    [The prepared statement of Mr. Wright follows:]
    
    
    
    
                               __________
    Mr. Farenthold. Thank you, Commissioner Wright.
    We will now go to Commissioner McDowell.

   TESTIMONY OF THE HONORABLE ROBERT M. McDOWELL, FORMER FCC 
  COMMISSIONER, AND VISITING FELLOW, HUDSON INSTITUTE, INC., 
            CENTER FOR THE ECONOMICS OF THE INTERNET

    Mr. McDowell. Thank you, Mr. Chairman, Ranking Members, and 
Members of the Committee. It is an honor to be back here before 
your Committee again today.
    At the outset, I should make clear that it is my hope that 
the Internet remains open and freedom-enhancing, as it has been 
since it was privatized in the mid-1990's.
    As the Internet migrated further away from government 
control, it proliferated beautifully, growing from just under 
90,000 users in the late 1980's to approximately 3 billion 
users globally today.
    Its success as the fastest-growing disruptive technology in 
human history was the direct result of the Clinton 
administration's bipartisan policy to keep the government's 
hands off the Internet sector. In short, the Internet is the 
greatest deregulatory success story of all time, in my view.
    When it comes to the net neutrality debate, it is important 
to remember that nothing is broken that needs fixing. The FCC 
is pursuing new rules without the benefit of a comprehensive, 
peer-reviewed economic study, something I have called for time 
and again over many, many years.
    If there is systemic market failure, let's discover that 
through a data-driven process.
    In 2007, the Federal Trade Commission examined the market. 
And in a unanimous and bipartisan fashion, found that there was 
no market failure, while eloquently warning against creating 
new rules that may produce harmful, unintended consequences, a 
report whose lead staffer was another FTC Commissioner, Maureen 
Ohlhausen.
    Instead of making a new and untested body of law that would 
produce uncertainty and potentially collateral regulation of 
the entire Internet sector, our public policy should rely on 
what has worked so well for virtually every other aspect of the 
highly complex American economy: our antitrust and consumer 
protection laws.
    Those laws are effective, enjoy a century of court-tested 
legal precedent, and can be administered by the Federal Trade 
Commission at the same speed, or lack thereof, as the Federal 
Communications Commission.
    Additionally, other State and Federal statutes and common 
law offer powerful consumer protections, such as those covering 
breach of contract, tortious interference with contract, 
deceptive trade practices, fraud, and much more.
    For instance, if ISPs were to breach their terms of service 
with customers, the plaintiffs bar would have a field day 
launching an uncountable number of class action lawsuits. These 
are powerful deterrents against anticompetitive practices.
    Additionally, having been part of official U.S. diplomatic 
delegations to negotiate treaties in the communications space, 
as well as recently being a member of the international blue 
ribbon panel on Internet governance, I can personally attest to 
the influence of the American net neutrality debate on 
international efforts to regulate all corners of the Internet.
    The ongoing prospect of new net neutrality rules has 
generated thinking throughout the world that more regulation in 
the Internet ecosystem should be the norm. Recent initiatives 
in Europe, covering all types of Internet-related companies, 
underscore this point.
    In sum, Internet regulation appears to be a one-way 
ratchet.
    Lastly, today, I offer a warning. Some technology companies 
that are pushing for classification of Internet access as a 
telecommunications service under Title II of the Communications 
Act of 1934 should be careful what they wish for.
    This section of the Communications Act is not only 
antiquated--in fact, the FCC just celebrated its 80th birthday 
yesterday--but it is particularly powerful, prescriptive, far-
reaching, and, by some counts, has over 1,000 requirements. As 
market forces caused the technical architecture of tech and 
telecom companies to converge, companies that today are calling 
for the regulation of their rivals, and naively think they will 
not get swept up in Title II regulations themselves, could wake 
up one day having to live under its mandate.
    As a technical and business matter, transmission services 
and information services are quickly becoming 
indistinguishable.
    So across the globe, content and application companies are 
falling under the purview of more and more regulations and 
court orders.
    In conclusion, whether creating new rules or foisting 
antiquated laws on new technologies, the end result would be 
counterproductive and create uncertainty and unintended 
consequences. A better path would be to rely on time-tested 
antitrust and consumer protection laws that have helped make 
the American economy the strongest and most innovative in the 
world.
    Thank you for the opportunity to testify today, and I look 
forward to your questions.
    [The prepared statement of Mr. McDowell follows:]
    
    
    
                               __________
    Mr. Farenthold. Thank you, Commissioner McDowell.
    We will now recognize Professor Owen for his 5 minutes.

    TESTIMONY OF BRUCE M. OWEN, MORRIS M. DOYLE CENTENNIAL 
   PROFESSOR IN PUBLIC POLICY, AND DIRECTOR, STANFORD PUBLIC 
              POLICY PROGRAM, STANFORD UNIVERSITY

    Mr. Owen. Thank you, Mr. Chairman, Ranking Member, and 
Members of the Committee, for this opportunity to testify 
today.
    Net neutrality is a seductive slogan. It seems to have many 
people in favor of it, many of whom I suspect don't know 
exactly what it means. Its meaning seems quite protean. It 
adjusts like a mutating virus to fit the defenses of the body 
against it.
    I think the most common current definition or usage of net 
neutrality involves what is more commonly called common carrier 
regulation. That is a public utility to which anyone has a 
right of access on nondiscriminatory terms.
    Now, we have a lot of experience with common carrier 
regulation in the United States, starting with the first 
Federal regulatory legislation in 1887, the Act to Regulate 
Commerce, which created the Interstate Commerce Commission, and 
began the regulation of railroads. Later, trucking and other 
modes of transportation were included, all under a common 
carrier rubric.
    The fact is that none of that regulation stopped 
discrimination. In fact, discrimination 20 and 30 years into 
regulation of transportation under the act was much worse, or 
at least much more extensive, than when it began.
    Moreover, like many other industries, the transportation 
industries became embedded in the political economy of the 
regulatory structure. The loudest voices affecting 
transportation policy in Washington were the railroads, and the 
trucking industry itself.
    And before very long, before the Depression, in fact, we 
had a series of regional monopolies or cartels overseen and 
refereed by the regulator. And the results for consumers were 
not good.
    Consumers were clearly worse off. They paid higher prices, 
output was reduced, entrants were kept out, and innovation was 
resisted, because you had to get a license from the ICC to 
compete in the transportation business. And one of the things 
the ICC took into consideration was whether the current 
incumbents would be harmed.
    The issue was not whether customers would be benefited, but 
whether incumbents would be harmed.
    The same thing happened in telecommunications and telephone 
regulation, in particular. It came to be true that the 
interests of AT&T, the old Bell monopoly that was broken up in 
1982, were primary at the FCC, and the interests of consumers 
were definitely secondary.
    Entrants were excluded. Technology was excluded or slowed. 
And consumers lost in order to benefit the incumbent monopoly.
    We don't have a good history with regulation, even where 
there is a lot of concentration in the industry.
    I think, therefore, we have to be very careful before 
imposing regulation. The first stop, the presumption in our 
economy is competition, and the promotion of competition by the 
government is the ideal way to go. And if that fails, which it 
can do, then we turn to regulation reluctantly as a last resort 
to solve serious and otherwise irremediable market failures.
    We don't start with regulation. We start with competition.
    So there is no particular evidence that competition isn't 
working in the parts of the telecommunications industry devoted 
to Internet supply. And there is every evidence that 
competition is in fact increasing, largely because of 
technology and, in particular, the growing use of portable 
devices supported by broadband wireless service.
    The capacity of wireless broadband service to serve the 
needs of consumers in competition with wireline Internet access 
providers is limited only by the FCC, which is in control of 
the amount of spectrum that can be devoted to that use.
    If we would like to see even more competition than we 
already have in local broadband access to the Internet, the 
first thing to do is to increase the spectrum available to 
wireless providers.
    Technology will also help with that. As we move to the 
fifth generation of wireless service, we will be able to 
provide greater amounts of service within roughly the same 
bandwidth.
    Antitrust policy promotes and protects competition. 
Regulation, whatever its intent and however well-meant, has the 
practical effect of suppressing competition. Antitrust promotes 
and protects innovation that makes it easier to enter an 
industry, when that would benefit consumers. Regulation, 
whatever the intent of it may have been, tends to suppress 
innovation in the interests of the incumbent regulated firms.
    It seems clear that antitrust is an effective way to 
preserve competition. One of those great victories of antitrust 
in the last century was breaking up the Bell System monopoly, 
the result of which was a huge increase in competition, both at 
the local level and in long-distance service. And, more 
important, unleashing the forces of innovation.
    The Bell telephone monopoly was a great inventor. Bell Labs 
was a wonderful source of----
    Mr. Farenthold. Professor Owen, if you could wrap it up. We 
need to try to stay on our time here.
    Mr. Owen. I am sorry.
    But it was a reluctant innovator. AT&T didn't become an 
innovator until after it was largely deregulated after the 
breakup.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Owen follows:]
    
    
    
    
                               ATTACHMENT



                               __________
    Mr. Farenthold. Thank you, Professor.
    We will now go to Professor Wu.

            TESTIMONY OF TIM WU, PROFESSOR OF LAW, 
                      COLUMBIA LAW SCHOOL

    Mr. Wu. Chairman, Ranking Member, Members of the 
Subcommittee, thanks so much for holding this hearing. I 
welcome the opportunity.
    I can summarize my comments in a few sentences. I have the 
highest admiration for the antitrust laws and the agencies 
enforcing antitrust laws. But I simply don't think they are 
equipped to handle the broad range of values and policies that 
are implicated by net neutrality and by the open Internet.
    Just to take a sample, what I am suggesting is that when we 
consider Internet policy, what we are really considering is not 
merely economic policy, not merely competition policy, but also 
media policy, social policy, oversight of the political 
process, issues of free speech.
    There are a wide range of noneconomic values that I fear 
the antitrust law, despite its expertise, despite the decades, 
indeed, over a century of lawmaking in that area, simply does 
not capture.
    And for that reason, I think that, despite its 
imperfections, we should stick with the process of FCC 
oversight of the Internet and enforcement of net neutrality 
rules.
    So let me break some of these ideas out a little bit.
    First, as I said, I have enormous appreciation for the 
antitrust laws and the agencies that enforce them. I served for 
some time at the Federal Trade Commission.
    And I think there are some advantages that the FCC could 
learn from in this area. There is a commendable insulation from 
influence. The adversary process is very well handled. I think 
the FTC does a good job at what it does.
    The problem is with the FTC and other antitrust agencies is 
that they are optimized for one kind, or two kinds in the case 
of FTC, two kinds of problems. And that is the protection of 
consumer welfare through the competitive process.
    And this is obviously a worthy goal. I am not going to sit 
here and say we shouldn't protect the competitive process. That 
is terrific.
    And this is typically accomplished by focusing on a complex 
and very sophisticated economic analysis, which, again, I 
commend when we are considering only the issue of competition.
    The problem is that in its day-to-day operations, the 
Internet implicates a whole host of noneconomic values, which 
are simply not well-captured by antitrust processes.
    Let me just give an example. Let's imagine we had an 
Internet service provider that for its own reasons decided it 
did not like political speakers on one or another side of the 
spectrum. Let's say we had a different ISP that for whatever 
reason believed that local news sources were less valuable than 
national news sources and decided to favor them. Or let's say 
we had an ISP that had a bias in favor of big speakers as 
opposed to small speakers, for whatever reasons. Or maybe just 
something totally irrational, like it favored one sports team, 
it just thought the New York Rangers were a better hockey team 
despite losing the Stanley Cup than the L.A. Kings, and so 
tried to adjust coverage around sports.
    Whatever it was, these are the kinds of issues, whether 
political, social, sports, whatever, you name it, that simply 
do not register in the antitrust analysis, because if you have 
political bias, it doesn't necessarily give a competitive 
advantage to the ISP.
    And so what I am trying to suggest here is that at stake in 
the net neutrality debate is really protection of the American 
political process and protection of the United States as an 
open society. And we can't accomplish that simply--we can't 
leave a matter that important to the economists. That is what I 
am trying to suggest.
    I have great respect for economists. I have a great respect 
for economic analysis. But I want to suggest we cannot leave 
the multiple values at stake in American society and in our 
political process to mere economic analysis.
    And I will close my comments right there. Thank you very 
much.
    [The prepared statement of Mr. Wu follows:]
    
    
    
    
    
    
    
    
                               __________
    Mr. Farenthold. Thank you very much.
    We will now recognize the Chairman of the full Committee, 
the gentleman from Virginia, for the first round of 
questioning.
    Mr. Goodlatte. Thank you very much, Mr. Chairman, for your 
forbearance.
    And, Professor Wu, while I disagree with much of what you 
just said, particularly the thought that, as has been attempted 
in the past, regulating the content offered by broadcasters on 
television and radio, which was a very popular thing to do in 
the past, and now that that has been pushed aside to allow for 
freer speech, I would suggest to you that we have far greater 
diversity of opinion expressed in that traditional market. And 
the thought that we would need to have FCC commissioners 
regulating content on the Internet to make sure that somebody's 
avenue to access to the Internet was fair and balanced would 
be, to me, an extraordinarily harmful thing to do.
    But I want to commend you on one thing and that is you have 
picked a name for this subject, ``net neutrality,'' that stuck. 
I have been at this issue for a dozen years. Congressman Rick 
Boucher and I introduced legislation before Congressman Conyers 
and Congressman Sensenbrenner did several years ago. We called 
it ``open access.'' And I think we would probably agree on the 
principle that the Internet should have open access to all the 
competitors and all of the consumers that have access to it.
    So let me direct a question first to Commissioner Wright. 
It has been reported that, during peak hours, Netflix traffic 
accounts for approximately a third of all Internet traffic. 
When I saw that recently, I was amazed. I think that is a great 
credit to the popularity of Netflix, of whom I am one of their 
customers.
    This amount of traffic could indicative of a significant 
market position. One of the reasons that antitrust law holds 
more appeal than regulation is its ability to prosecute 
improper conduct by all market participants, not just a select 
few. And I am not in any way suggesting that Netflix has an 
improper market position.
    But to the extent that Netflix were to use its market 
position to engage in anticompetitive behavior, would antitrust 
law, or existing or proposed regulation, be more effective at 
policing improper conduct?
    Mr. Wright. Thank you, Chairman. I appreciate the question.
    And ``House of Cards'' is quite a show. Whether it grants 
Netflix market power I think is a question that is one--the 
place where antitrust analysis began with such a question is 
what the antitrust laws do with respect to market power is say 
that if a firm achieves its market position by innovation, by 
building a better mousetrap, by making content that benefits 
consumers, this is the type of conduct that the antitrust laws 
celebrate rather than condemn. Antitrust laws step in when a 
firm with market power abuses it in such a way to make 
consumers worse off.
    Those sorts of concerns, that a Netflix, for a hypothetical 
example, or any firm in the broadband space with market power 
would discriminate in such a way to harm consumers would set 
off a set of standard analyses. The FTC and other antitrust 
agencies and courts, for that matter, have analyzed these 
problems for decades upon decades in a variety of industries. 
And the formula, the algorithm, for analyzing these problems 
are now sort of well-known.
    I will say, with respect to the methodology rather than 
boring you with its details, that it is focused upon asking a 
central question of whether the conduct at issue makes 
consumers better off--in this case, Internet users--better off 
or worse off.
    Mr. Goodlatte. I am going to interrupt you there, because I 
want to direct one more question, and I have 1 minute left. I 
am going to direct it to Commissioner McDowell.
    Antitrust law has the benefit of being available for 
prosecution of improper conduct, if and when it occurs. In your 
view, has there been a demonstration of widespread abuses by 
Internet service providers or other market participants that 
justifies deploying a before-the-fact regulatory approach to 
potential improper conduct on the Internet?
    And a follow-up question is, can you explain why the FCC is 
unwilling to conduct a cost-benefit analysis before regulating 
such an important component of our national economy? Is it 
fearful of the potential results?
    Mr. McDowell. No, I am not aware of widespread market 
failure. And that is why for years I called for a bona fide, 
peer-reviewed market study to be put out for public comment 
time and time again. The FCC is 0-and-2 in the appellate 
courts. I can't speak to their motivations.
    The courts have now handed the FCC a very tiny legal 
needle, and it is trying to put a big, fat regulatory rope 
through that eye. I think they will fail again in court unless 
they are very, very careful.
    And if anything, this is an issue for Congress to look at, 
if there were a market failure to begin with, which there is 
not.
    Mr. Goodlatte. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Farenthold. Thank you, Mr. Chairman.
    We will now recognize the Ranking Member, Mr. Johnson, for 
5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    I would ask unanimous consent to include a letter from 
Consumers Union on the importance of rules to protect net 
neutrality, for it to be placed in the record.
    Mr. Farenthold. Without objection, so ordered.
    [The information referred to follows:]
    
    
    
    
                               __________
    Mr. Johnson. And I would also, for clarification, just note 
that, Commissioner Wright, you are testifying before us today 
only in your individual capacity, and that your oral and 
written testimony do not necessarily reflect the views of the 
Federal Trade Commission.
    Is that correct?
    Mr. Wright. That is correct.
    Mr. Johnson. All right, thank you, sir.
    Now, Professor Owen, you stated that most consumers are 
confused about the definition of the term ``net neutrality.'' 
Would you give us your definition?
    Mr. Owen. I don't have my own definition.
    Mr. Johnson. Okay, well, I will tell you what, then----
    Mr. Owen. I do my best to infer it.
    Mr. Johnson. All right, let me ask, then, for Professor Wu 
to give us his definition of the term.
    Mr. Wu. Net neutrality is a principle that suggests that 
Internet carriers should give consumers what they want when 
they want it, and not stand in the way, not to block some 
sites, and not to favor some sites over others. It is just a 
basic principle of nondiscrimination, which we have in many 
public accommodations, inns, hotels, airlines, and so forth, as 
applied to the basic transportation facilities of the Internet.
    Mr. Johnson. All right, thank you.
    Commissioner Wright, the U.S. Supreme Court's recent 
decision in American Express v. Italian Colors upheld the 
rights of companies to force arbitration of antitrust terms 
through adhesive clauses hidden in contracts in companies' 
terms of service online.
    Are you familiar with that decision?
    Mr. Wright. I am vaguely familiar with that decision.
    Mr. Johnson. Well, in her dissent, Justice Kagan clarified 
the issue. She said that as a result of that decision, AMEX's 
contract will succeed in depriving Italian Colors of any 
effective opportunity to challenge monopolistic conduct 
allegedly in violation of the Sherman Act. The Federal 
Arbitration Act, the majority says, so requires. Don't be 
fooled, she says, only the Supreme Court so requires. The 
Federal Arbitration Act was never meant to produce this 
outcome. In the hands of today's majority, arbitration 
threatens to become more nearly the opposite, a mechanism 
easily made to block the vindication of meritorious Federal 
claims and insulate wrongdoers from liability. The Court thus 
undermines the Federal Arbitration Act no less than it does the 
Sherman Act and other Federal statutes providing rights of 
action.
    So, Commissioner Wright, in your written testimony, you 
argue that the courts should set the rules of the road for 
Internet openness through antitrust law. But how could a 
complaint of anticompetitive behavior even reach the courts if 
it is lawful to force every consumer, small business, and 
employee to arbitrate their claims in a foreign venue that is 
secret, that is for profit.
    You are familiar with arbitration process--no jury trial, 
no right to appeal.
    How does your opinion about how the Internet should be 
regulated fare in light of that Supreme Court ruling?
    Mr. Wright. I appreciate the question, and I am going to 
give you two quick answers. One is, there is nothing in that 
decision that would preclude the FTC or DOJ from bringing a 
case. We are not in arbitration agreements with any of the 
companies at issue. We bring investigations in areas where 
there are arbitration clauses all of the time.
    Mr. Johnson. The public, though, would be banned, 
essentially, from a jury trial.
    Mr. Wright. The second reason--so that speaks for the 
public agencies, like the FTC and DOJ.
    Mr. Johnson. We would need the public subject to the 
government going to court.
    Mr. Wright. The second part of the answer, with respect to 
private rights of action, I can tell you, perhaps not on an 
industry-by-industry basis, but private rights of actions, both 
before and after the Supreme Court's decision in Italian 
Colors, are alive and well.
    There is no downtick in exercise of private rights of 
antitrust action. In fact, over the last 30 years, private 
rights of action are at an all-time high.
    Mr. Johnson. Well, they are going to be at an all-time low, 
as we proceed forward under this U.S. Supreme Court ruling, 
which actually snuffs out the constitutional right, Seventh 
Amendment right, to a jury trial where the case in controversy 
exceeds $20 or more.
    So I will, at this time, yield back the balance of my time.
    Mr. Farenthold. Thank you very much.
    The gentleman from Southern California has indicated that 
he is under a time constraint, and out of the good sense of 
yielding to my full Committee Chair on Oversight and Government 
Reform Committee, I will now recognize Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman. And as a result, I will 
go to a different Subcommittee on the other side of this wall 
in just a few minutes, and I thank you.
    Professor Wu, I really appreciate your being here. I think 
you have given us the appropriate characterization of the true 
reason for net neutrality. You said it was social media policy, 
speech policy, political policy. You used words including 
control. All of that, you did voluntarily here, right?
    So what you are saying, in effect, is that if the FCC gets 
ahold of this, we would go back to the ``Leave It to Beaver'' 
times, times in which two married adults had to be in twin beds 
in order to get past the social norms of the day, times in 
which even today Bill Maher, who I often disagree with, can't 
be on broadcast, because the FCC won't let him on because he 
uses the ``F'' bomb too often, times in which complaints are 
being considered today and in the last year against ``Two and a 
Half Men'' because they are too sexually explicit.
    This is the FCC's role. They are a regulatory policy entity 
that actually does limit free speech, carefully questions moral 
norms and the like.
    Do you have any way to tell me that that is not true, after 
your opening statement?
    Mr. Wu. What I am trying to suggest----
    Mr. Issa. Please answer the question, then you can pivot to 
your suggestion.
    Mr. Wu. I am suggesting that if the antitrust agencies 
overtake----
    Mr. Issa. No, no. You were telling me the good reasons for 
the FCC to have this kind of control. And I have countered with 
you are absolutely right. Everything you said about social 
policy, speech, political, these are things the FCC has 
controlled over the airwaves for my entire life.
    Commissioner McDowell, you probably have the best 
perspective, because you are a former commissioner. And there 
is nothing like somebody who has been on both sides of it.
    Do you have any question but that, in fact, that is still 
today a part of how the FCC views its mandate, when it takes 
complaints on whether ``Two and a Half Men'' is crossing the 
line in broadcast?
    Mr. McDowell. Absolutely. The FCC has control over speech 
over broadcast licensees under a doctrine called spectrum 
scarcity, which its days may be numbered at the Supreme Court. 
We don't know yet.
    But it does have control over speech.
    And to build on Professor Wu's comments, and a lot of other 
net neutrality proponents, this is about bringing such controls 
to the Internet as well. It is social policy, speech policy, 
political regulation policy. And I think that actually does 
summarize it quite well, just as he said.
    Mr. Issa. Well, I have been in Washington for nearly 14 
years----
    Mr. Wu. With respect, if I can answer the question?
    Mr. Issa. Well, I think you answered it wonderfully in how 
you phrased it.
    Mr. Wu. No, I would just say that I----
    Mr. Issa. Professor, Professor, Professor, I will ask the 
Chair to remind you this is my time. I got an answer to your 
question. I will come back to you in a moment.
    Mr. Wu. All right.
    Mr. Issa. In my 14 years, the one thing I have noticed is 
that we like to harmonize things.
    So, Commissioner Wright and Commissioner McDowell, do you 
have any question but that there would be, if the FCC takes 
full net neutrality authority, if you will, that the FCC, by 
definition, will tend to want to harmonize other spectrum, such 
as broadcast and its limited cable role, with the Internet?
    In other words, the rules of the road for broadcast that 
have given us not having things on broadcast inevitably would 
be applied, at least in some part of the Internet, maybe 
similarly to how we regulate cable can only go so far. And I am 
just going to give you a simple question: You can't put what 
some people consider pornography on broadcast television, can 
you?
    Mr. McDowell. No.
    Mr. Issa. And it is extremely limited as to what can be on 
cable? It cannot be a free-for-all?
    Mr. McDowell. It cannot be obscene. It is a different 
constitutional standard.
    Mr. Issa. Right. But on the Internet today, it is limited 
only to criminal acts, is that correct? You can put anything on 
the Internet, no matter how much somebody doesn't like it, as 
long as it is not a crime, is that correct?
    Mr. McDowell. Correct.
    Mr. Issa. And if it is a crime, then law enforcement 
regulates it?
    Mr. McDowell. Correct.
    Mr. Issa. Okay.
    Professor Wu, I will give you the last word. Do you see any 
inconsistency with exactly that? Because you are talking about 
in your statements about speech policy, social policy, control? 
Isn't that part of the concern the American people should have, 
that much of what they see on the Internet could be regulated 
out of existence?
    Mr. Wu. No, I disagree. Net neutrality prevents the exact 
opposite. Net neutrality protects the----
    Mr. Issa. Net neutrality doesn't exist. Net neutrality is a 
concept, isn't it?
    Mr. Wu [continuing]. Platform for a diversity of freedom of 
speech. We have had net neutrality rules, de facto, for the 
last 20 years. We have had an incredible outpouring of speech 
from all across the political spectrum.
    And I am suggesting that if we maintain----
    Mr. Issa. Professor, Professor, your own words indict you.
    One last quick question. It is an antitrust question. Isn't 
our real ability to ensure competition in our control, if we, 
as a Congress and this Committee, define the relevant market, 
so that in fact it is intended--and promote competitiveness by 
defining a relative market to a low enough level to always 
ensure free flow of competition?
    Mr. Johnson. Mr. Chairman, I would ask for regular order, 
if we are not going to allow Professor Wu to answer the 
question.
    Mr. Farenthold. It is Mr. Issa's time. I indulged you 
with----
    Mr. Issa. To be honest, any of them can answer any of the 
questions, and the last question is one.
    I think I got the answers from Professor Wu.
    Mr. Johnson. The time has expired, Mr. Chairman.
    Mr. Issa. Mr. Johnson, when the gentleman goes off of the 
actual question, it is not his time. And Chairman Conyers is 
over there, and he knows well. I ask a question. I asked 
Professor Wu to answer the question and be succinct. Now the 
fact is the pertinent question right now, and I don't care how 
much time the Chairman gives to Professor Wu to go on 
disagreeing with us, but the pertinent question is the 
antitrust relevant market question.
    I would appreciate all four witnesses answering.
    Mr. Farenthold. We will give them a short time to answer. 
And as your time is up, we will allow each witness a couple 
seconds to go in, and then we will recognize the gentleman from 
Michigan, if anyone wants to tackle that.
    Mr. Wright. I hate to do it at this point, but can you 
repeat the question?
    Mr. Farenthold. No.
    Mr. Issa. It is short. The relevant market, in other words, 
how we define competition--is competition an entire State or is 
competition what is available to you in your home. Those kinds 
of relevant markets we can set, which, of course, would make 
antitrust harder and harder to circumvent, which would push for 
more antitrust control over entities that have 60, 70, or 100 
percent market share in your particular rural home.
    Mr. Wright. That is a--yes, that is correct. There is a 
standard mode of market definition analysis with antitrust that 
I think has very sound economic principles that I think would 
serve just fine here.
    Mr. McDowell. So the definition of markets is very key with 
what the FCC does in defining the public interest under its 
public-interest standard. And when it comes to broadband, there 
is coaxial cable, there is fiber, there is copper, there is 
DSL.
    There is also wireless broadband, the fastest-growing 
segment of the broadband market. And there is unlicensed 
wireless broadband, which I have been a big proponent of for a 
long time.
    But also what is important here is how these companies are 
converging. These and no longer dumb pipes. As everything 
migrates to Internet protocol, there is intelligence embedded 
in networks. And if you are a content delivery network, you 
have networks. And if you are a traditional telco or cable 
company, you have networks, and you have intelligence and 
content embedded in those.
    And from an engineer's perspective, they are starting to 
look a lot alike. And so the danger for the government trying 
to parse this and with a scalpel somehow outguess the 
marketplace, that is the big danger that will undermine 
innovation and investment, and our competitive advantage.
    Mr. Farenthold. Professor Owen, if you could be real quick, 
we are way over on time here, if you want to take a stab at it. 
You are welcome to pass.
    Mr. Owen. I have been invited to pass. I pass.
    Mr. Farenthold. Professor?
    Mr. Wu. All right. I will answer the question.
    Market definition is essential to the antitrust policy, and 
it would determine everything we do in this area. And it is one 
of the problems in this area, because the FCC is equipped to 
deal with issues like regionalism, like localism, like 
diversity, which are important American values that aren't 
captured by an analysis that only focuses on market definition.
    Mr. Farenthold. Thank you very much, Professor Wu.
    And we will now recognize the Ranking Member of the full 
Committee, the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Subcommittee Acting Chairman 
Farenthold.
    Mr. Issa. He looks good in that chair, though.
    Mr. Conyers. I am impressed with the fact that we have 
three very distinguished witnesses taking one position, and 
Professor Wu, I would just like to go through a few things in 
the minutes that I have.
    Would the FCC be regulating content, as was suggested by 
our full Committee Chairman Goodlatte?
    And isn't antitrust regulation weak and slow, and can't 
operate in a preventive way?
    Mr. Wu. The answer to the question is the FCC would not be 
regulating content. Net neutrality is not a call for content 
regulations. It is a call for nondiscrimination norms on the 
Internet, which everyone on this panel seems to agree with in 
one form or another.
    And my suggestion is that by having a neutral platform, it 
has served as an incredible platform for free and diverse 
speech, and threats to the neutrality network ultimately 
threaten speech environment and the political process of the 
United States.
    I mean, how many political outsiders have come from nowhere 
from an Internet campaign? I would suggest, with respect to the 
Chairman of the full Committee--he seems to have left--that he 
has things precisely wrong, 180 degrees wrong, and doesn't seem 
to understand the Internet very well, because, under net 
neutrality, over the last 20 years, we have an incredible 
flourishing of speech, including his speech, which would 
probably not have been heard in an earlier era.
    He owes and all speakers owe the Internet an incredible 
debt of gratitude for getting their voices out there, all of 
the speakers in our society.
    And so what I am suggesting is net neutrality has supported 
and upheld this network as a platform for speech and a platform 
for innovation and a platform for noneconomic values. None of 
this is well-captured by antitrust scrutiny.
    The FCC has taken--it hasn't always been pretty, but over 
the last 20 years, it has taken a light-handed approach that 
has had incredible benefits for the entire society.
    And I agree with your suggestion that the antitrust laws, 
had they been in place over the last 20 years, probably would 
not have been adequate to oversee and create the kind of 
incredible speech and innovation environment we have seen over 
the last 20 years.
    So I thoroughly agree with your suggestion, and I think 
that the FCC, despite its imperfections, remains the right 
agency to oversee this network.
    Mr. Conyers. I would like now to turn to our other three 
witnesses and ask if there was anything objectionable that was 
just uttered by Professor Wu?
    Yes, former Commissioner?
    Mr. McDowell. It is great to see you again, Congressman, by 
the way.
    So I am not going to say an objection, but I think there is 
a fine point of distinction, especially for the House Judiciary 
Committee, which has jurisdiction over the First Amendment, 
which is when we are talking about speech, what I think the 
professor is offering is speech balancing. In the broadcast 
context, historically at the FCC, we call that the fairness 
doctrine. That would probably be ruled unconstitutional by the 
Supreme Court today.
    So when you have private parties speaking on private 
platforms, the constitutional precedent says the government 
can't balance the speech, that that is actually censorship.
    When private parties shout down one another, that is not 
censorship. Censorship inextricably is intertwined with state 
power and state involvement.
    Now, we want the Internet to be open and free and a great 
platform. That is going to come through abundance and 
competition. And that is what regulation actually subverts.
    Mr. Conyers. Could I ask Professor Wu my last question?
    Mr. Farenthold. Sure.
    Mr. Conyers. Why can't most people see what I think I have 
heard? Why is antitrust, which is slower and weaker and can't 
get in front of a problem, why would it be advocated over the 
FCC?
    Is there something I don't understand going on underneath 
this discussion?
    Mr. Wu. I, certainly, don't advocate it.
    Antitrust is slower and sometimes weaker. It is not always 
weaker. The AT&T breakup was pretty strong.
    But I think what it does is it would turn, as opposed to 
being a public debate over the open Internet, it would turn to 
an economists' debate where you have one set of economists with 
one set of data and another with another.
    And as I have suggested, many of the important values, 
which I think are values in our communication network, values 
of our media, would be neglected.
    Mr. Conyers. But there is more than that?
    Mr. Wu. Yes, there are important values--localism, 
regionalism, diversity, technical expertise, all of which are 
lost when we turn to a purely economic analysis that only 
considers economic, financial aspects of the Internet.
    Mr. Conyers. Thank you very much, Mr. Chairman.
    Mr. Farenthold. Thank you, Mr. Conyers.
    I will now recognize myself for 5 minutes for questions.
    I am going to start with Professor Wu. I was going to not 
engage, but you have drawn me on.
    So what is broken now? Give me some examples of where you 
see Internet service providers regulating political speech or 
shutting down potential speakers? I don't see a big public 
outcry that this is happening.
    Mr. Wu. Right, I would point to the countries outside the 
United States where they don't have net neutrality to suggest 
where you see the problem.
    Now, in the United States----
    Mr. Farenthold. But it is countries themselves that are 
doing that through their Internet policy, not so much private 
sector ISPs.
    Mr. Wu. Often it is a mixture of the two, whether it is the 
private ISP or the government involved. I also don't think the 
government should discriminate, should censor the Internet 
either.
    Let me say, the reason we haven't had a problem over the 
last 20 years is that we have had du jure or de facto net 
neutrality policy in place.
    Mr. Farenthold. Again, I have limited time, so I want to 
get to some other people.
    This sounds like an ``if it ain't fit broke, don't fix it'' 
kind of argument. I have been on the Internet for a very long 
time. Back when I was in college in the 1980's accessing USENET 
and things like that. And whenever there was some sort of 
content regulation or something that wasn't deemed fair, there 
was a huge outcry. And I don't think there is a more vocal 
advocacy group out there than Internet users. We need look no 
further than we were looking at SOPA and PIPA in this Committee 
to see how effective an advocate Internet users are.
    You have the ability, even though we are seeing a 
consolidation in the number of providers in the vast--outside 
of rural areas, you typically have two or three providers. You 
have a cable provider, a wireline provider, and a wireless 
provider of broadband.
    So, Commissioner Wright, Commissioner McDowell, do you see 
it broken? Do you see a problem here?
    Mr. Wright. I don't. And the FTC has studies in this 
regard.
    But I want to focus on one part of your question, which is 
the values. We heard a lot about the values of Internet users 
in a variety of ways, reflecting on the debate.
    I think that is important to note that what consumers value 
in their activities on the Internet is in fact what lies at the 
center of antitrust analysis. I have heard now, I think, 
something that needs correction with respect to how cramped a 
view of antitrust sort of is out there.
    Antitrust is a consumer welfare-based system. This means 
what economists do is not merely focus on the things we can 
count, but also on what consumers value.
    And to the extent in antitrust analysis that things like 
the amount of content, the quality of content, innovation, 
things other than price and quantity, these are captured within 
an antitrust analysis.
    Mr. Farenthold. Commissioner McDowell, did you have 
anything you wanted to add?
    Mr. McDowell. So, first of all, I would like to say the 
Federal Trade Commission can act at the same speed as the 
Federal Communications Commission, or lack thereof. So the idea 
that antitrust law is slower moving is just not the case.
    But also, I think it is important to point out that those 
countries where the Internet is regulated more, there is less 
freedom overall, but especially less freedom of speech. There 
is a direct correlation between more regulation, more state 
involvement with the net and less freedom, because these 
countries are balancing--it is really censorship.
    Mr. Farenthold. So potentially, could some of these net 
neutrality regulations get in the way of innovative offerings?
    I pay close to $100 a month for my Internet access. I like 
it fast. I have four people in my house who are typically all 
streaming at the same time. But my mother, before she passed 
away, was email and Facebook. With net neutrality making these 
streaming services equally available, as opposed to somebody 
who just wants to use the Internet and email, doesn't it force 
Internet service prices higher and take away my options to buy 
a limited account?
    Mr. Wright. The case for antitrust overregulation is as 
simple as this: The general economic view is these types of 
contracts across many industries help consumers. What the 
antitrust ex post approach allows you to do is have the 
benefits of those contracts when they help consumers and 
reserve enforcement for those instances where we can find, and 
we do, abuses of market power. It allows consumers to have 
both.
    Mr. Farenthold. All right. And Professor Wu and some net 
neutrality advocates have suggested that antitrust law is ill-
equipped to deal with this. While I disagree, are there any 
tweaks that we should be looking at in antitrust law that would 
perhaps address these problems and be there, should the problem 
arise?
    Mr. Wright. Antitrust over the last 50 years has evolved 
significantly a fine-tuned approach based on modern economics 
that focuses on consumer welfare. That approach is one that 
incorporates things like nonprice dimensions, quality and 
innovation, exactly the things that we would want an antitrust 
policy to do.
    In my view, the consumer welfare approach has served 
antitrust incredibly well. It is flexible enough to reach these 
types of concerns, and, in my view, doesn't need any tweaking. 
It does what it does well. What it does well is broader than 
some of what we have heard. And I don't think it should do more 
than what it already does well.
    Mr. Farenthold. Thank you.
    I see my time has expired. We will now recognize the 
gentlelady from Washington, Ms. DelBene.
    Ms. DelBene. Thank you, Mr. Chair.
    And thanks to all of you for being here today. Appreciate 
it.
    It is clear that we have bipartisan interest in ensuring a 
free and open Internet. And we all appreciate how essential it 
is to innovation and economic growth. And I appreciate that 
there are very different views on how we get there.
    I believe that it is critical for the FCC to implement 
strong, enforceable rules that will protect consumers and make 
sure there are clear protections against blocking and 
discriminating on content.
    Commissioner Wright, your testimony suggests you believe 
that the fears that network discrimination via broadband 
providers could lead to competitive harm are unwarranted. I am 
not sure I agree with that, but can you please talk more about 
what you see as the potential benefits or efficiencies that 
these type of contracts will create for consumers, and how 
consumers are going to actually see that?
    Mr. Wright. Sure. The idea of discriminatory what we call 
vertical contracts--for example, between broadband providers 
and content providers--these types of contracts have been the 
focus of antitrust inquiries and economics for a century.
    Sometimes what they do, when we have close relationships 
between folks in different parts of the supply chain, is align 
their incentives more closely to provide new types of services 
by combining, not by merger, but by contract.
    Ms. DelBene. But specifically, a consumer today, what do 
you think they are going to see today in terms of benefits? 
When I hear from consumers, I hear concerns about net 
neutrality and violating the principles of net neutrality. I 
hear concern about pricing.
    When you say there are benefits?
    Mr. Wright. So, for example, business models that charge--I 
mean, the heart of discrimination. Business models that charge 
different prices to consumers can allow lower prices to 
disadvantaged consumer groups for different types of services 
that might be charged for higher prices. That discrimination 
gives some people cause for concern, and I understand that 
concern.
    But it also provides, and I don't think that there is any 
debate in economic literature about this, that it provides real 
benefits to consumers by facilitating the growth and entry of 
new products, new business models, sometimes differentially 
priced or differentially designed. But those provide real 
benefits.
    Ms. DelBene. So I guess I have a question for Professor Wu, 
then.
    Did the regulation of the Internet today prevent venture 
capitalists or others from investing in startups like Google 
and Yahoo? Have we seen a lack of innovation?
    Mr. Wu. No. We have had a net neutrality policy for the 
last 20 years, maybe 30, depending how you count.
    And we have had, during this period, the most astonishing 
period of economic growth and development centered on the 
Internet that we have ever seen in telecommunications. And it 
has been a tide that has risen all boats.
    The telecommunication sector itself, cable and telephone 
companies, are very profitable. And we have just had one great 
innovation after another.
    I have suggested that under the net neutrality policy, we 
have approached what economists aspire to, which is a market 
with very few barriers to entry.
    Ms. DelBene. And we, de facto, today have a net neutrality 
policy that has been in place that folks have been operating 
under.
    Mr. Wu. Right.
    Ms. DelBene. Maybe not formally, but in some ways formally, 
but also informally.
    Mr. Wu. Yes. I am going to agree with the sentiment, if it 
is not broken, don't fix it. We have had net neutrality policy 
for the past 20 years, and it has been terrific.
    This is no time to jettison it, jettison the FCC and turn 
to antitrust instead, which is unproven and will likely lead to 
disappointing results as compared to a successful policy we 
have had for the last 20 years.
    Ms. DelBene. So doing that would be a change.
    Mr. Wu. That would be a change. The change would be moving 
to antitrust.
    The FCC oversight has been terrific, both in terms of 
economic development and innovation.
    Ms. DelBene. I also want to say that may be why we have a 
letter from over 100 Internet companies, from large companies, 
startups, services, who wrote the letter to the FCC last month, 
arguing that the commission's rules should protect users and 
Internet companies on both fixed and mobile platforms against 
blocking, discrimination, and paid prioritization.
    Mr. Chair, I ask for unanimous consent to submit this 
record for the record.
    Mr. Farenthold. Without objection, so ordered.
    [The information referred to follows:]
    
    
    
    
    
    
                               __________
    Ms. DelBene. So that is an example of folks feeling like we 
have a competitive environment today where they have been able 
to thrive and innovate, and want to make sure that we continue 
to maintain that.
    So with that, Mr. Chair, I yield back.
    Mr. Farenthold. Thank you very much.
    We will now recognize Mr. Smith.
    Mr. Smith of Missouri. Thank you, Mr. Chairman. Thank you 
for holding this hearing.
    I think it is important that we examine the importance of 
the antitrust laws can play in the discussion of the Internet, 
and particularly net neutrality debate.
    In my first question is for Mr. McDowell. How would 
additional regulation impact small and midsize Internet 
providers?
    Mr. McDowell. Well, there is evidence in the record at the 
FCC during various rounds in 2008 and 2010, and I think coming 
in now under the current proceeding, wireless Internet service 
providers, WISPs we call them, and others were very concerned 
about this. Explicit evidence in the record, statements by 
owners saying they have been questioned by their banks as to 
what their future would look like, as to whether or not they 
could get loans from banks and build out and continue to 
improve their networks and serve their customers.
    Mr. Smith of Missouri. Would these companies be similarly 
impacted by the application of antitrust law?
    Mr. McDowell. No, I don't think so. They wouldn't.
    So one of the questions here is creating a new body of law.
    By the way, I disagree with the premise that there has been 
de facto net neutrality policy of the government. There has 
been maybe de facto net neutrality policy in the private sector 
to maximize freedoms so that you are actually creating 
abundance and competition. But not by the government.
    But in any case, no is the answer to that question.
    Mr. Smith of Missouri. Okay. Well, in your view, do you 
believe the FCC is properly equipped to handle the enforcement 
of improper conduct over the Internet?
    Mr. McDowell. What do you mean by improper conduct? Like 
anticompetitive conduct?
    Mr. Smith of Missouri. Yes.
    Mr. McDowell. So the courts have cabined in the FCC's 
authority here in part because Congress did not contemplate 
this.
    I disagree with the D.C. Circuit in the Verizon case that 
Section 706 gives the FCC authority to add more regulation; 706 
is about the FCC reducing regulations to stimulate broadband 
infrastructure deployment. So I disagree. It was a 2-to-1 
decision. Judge Silberman's dissent is very compelling in that 
regard.
    But the FCC has very limited authority here, and I think 
will fail again in court, if it goes outside the bounds of what 
Judge Tatel was drawing, which, again, I disagree with, but he 
is talking about commercially reasonable agreements, and that 
is something in the data-roaming context, which has worked so 
far.
    But in any case, to answer your question more succinctly, I 
think the FCC has almost no authority in this space.
    Mr. Smith of Missouri. Thank you.
    Professor Wu, outside of the free-speech concerns outlined 
in your testimony, do you believe the FTC would be effective at 
protecting consumer interests and procompetitive behavior over 
the Internet?
    Mr. Wu. I think the FTC would do some things very well. I 
admire, as I said, the FTC and I think they are a good agency, 
and I think they are well-equipped to deal with violations of 
the Sherman Act and other unfair methods of competition.
    But I don't think they have adequate scope to deal with the 
full scope of harms, including noneconomic harms that we might 
see arise from discriminatory practice by Internet service 
providers.
    I have given the example of political bias, of regional 
bias, of localism concerns, diversity concerns. And so I think 
they would do a good job with a certain form of harm, but I 
don't think their review encompasses all the harms that we care 
about in the Internet space.
    Mr. Smith of Missouri. Commissioner Wright, would you want 
to answer that same question?
    Mr. Wright. The Supreme Court has described antitrust laws 
in the United States as the Magna Carta of free enterprise. The 
idea behind the antitrust laws is that competition is what 
tries not just a lower price for a gallon of milk or increased 
output, but increased quality, proliferation of content 
variety, and a number of things that have been described in 
this context as noneconomic values.
    I disagree that they are noneconomic values, but the 
fundamental idea of the antitrust laws is a belief that 
competition drives these things is the basis for having strong 
antitrust enforcement.
    In my view, the evolution of the antitrust laws attached 
and tethered to sound economics have given antitrust 
enforcement at the FTC and other agencies a real strong 
intellectual, analytical basis for analyzing precisely this 
type of conduct, allowing the conduct that benefits consumers, 
over which there is basically no real debate, and preventing 
competitive harms.
    Mr. Smith of Missouri. Thank you, Mr. Chairman. I yield 
back.
    Mr. Farenthold. Thank you very much.
    We will now recognize the gentleman from Rhode Island, Mr. 
Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman.
    Thank you to our witnesses.
    I think we are all interested in preserving the Internet as 
an open platform for innovation and for free expression, and, 
obviously, as a tool for investment and economic growth.
    I do think that it is very clear that the Internet plays a 
very special role in a free and open society, as Professor Wu 
says. So the notion is that the Federal Trade Commission has 
real expertise in ensuring competition on the sale of 
commodities and trades of widgets, of goods and services, but 
may not be the best agency when we are talking about a very 
different entity, and that is the Internet, which is a vehicle, 
a platform, for a whole series of other important democratic 
values.
    So the first question I have is to you Commissioner Wright, 
to follow up on Congresswoman DelBene's point, or question 
rather, which I don't think you answered.
    You said that vertical contractual arrangements between 
broadband providers and content providers are beneficial for 
innovation and for consumers because they create certain 
efficiencies.
    Tell my constituents what benefits you believe would arise 
from those contractual arrangements.
    Mr. Wright. Okay. So to give an example, a broadband 
provider and a content provider can have an arrangement where 
they are going to jointly, through their contract, offer a 
service to some group of consumers.
    For example, we can have a service--MetroPCS had this a 
couple years ago, where they were going to offer a service at a 
reduced price, but because of concerns about congestion on the 
network take off the use of the video downloads. I think they 
had YouTube off of it.
    But they were going to offer it at a lower price. There was 
a significant demand for that product. It was at a lower price 
to a consumer group that maybe couldn't buy services that would 
have the sort of full scale and be at a higher price.
    We have that sort of----
    Mr. Cicilline. Okay, but again that all relates to an 
economic benefit.
    And I guess this is where I would like, Professor Wu, for 
you to talk a little bit more about it. It seems to me that 
analysis is helpful as it relates to a strictly economic 
analysis.
    What is the danger with approaching the Internet with that 
sort of narrow view? And what are the values that are at stake 
here, if we don't preserve vigorously an open, accessible 
Internet? What are the implications here and around the world?
    Mr. Wu. Yes, the implications are serious. I think the 
United States would no longer be the leader of Internet 
openness, which is in fact part of our foreign policy. The 
State Department has spent an enormous amount of time trying to 
say to authoritarian regimes that you need to be like us, you 
need to be an open Internet country.
    If we abandon the open Internet, and our rules for the open 
Internet, and say, well, we decided it is an economic issue, I 
think that sends a bad message.
    I also want to say that most of the most valuable uses of 
the Internet actually are not commercial uses. For example, 
probably one of the most valuable uses of the Internet is when 
extended family shares pictures. Parents send pictures of 
grandchildren to the grandparents. And that doesn't show up in 
an economic analysis, in a commercial analysis. It is very hard 
to measure these kinds of values.
    I am concerned that things like families, just friends, 
totally noncommercial interactions will be the kind of things 
that won't get properly factored into an analysis that is just 
focused on trade. It is the Federal Trade Commission, or 
antitrust laws, which are focused on things you can measure 
that have a clear commercial value.
    Mr. Cicilline. And, Professor Wu, should we draw any 
inference from the fact that the overwhelming number of 
technology companies, as the letter that was introduced by 
Congresswoman DelBene from over 100 technologies companies who 
are calling on the FCC to protect net neutrality, as compared 
to the folks who are the service providers, sort of the smaller 
group in the business of selling the products on the Internet, 
should we draw any inference from the different positions of 
those two sets?
    We heard a lot of discussion that it is going to impede 
innovation, impede investment from entrepreneurs. It seems as 
if there has been a very loud signal from the innovators and 
entrepreneurs that, in fact, it is critical to them and to the 
growth of this sector of our economy that there be an open 
Internet.
    Mr. Wu. I thoroughly agree with you. I am going to return 
again to this idea that if it is not broken, don't fix it.
    What is being proposed here is moving away from net 
neutrality policy as overseen by the FCC and toward an untested 
antitrust method. And we have seen very clearly that the 
incredibly vibrant economy, which has grown up on the Internet 
and in fact has been enormously beneficial to cable and 
telephone companies, they want net neutrality protected using 
the FCC.
    So why would we mess with that by experimenting with 
antitrust enforcement, which is untested and will have results 
that we can't predict? And as you earlier indicated, it does 
not protect some of the most important noncommercial values at 
stake.
    Mr. Cicilline. Thank you very much sir.
    I yield back. Mr. Chairman.
    Mr. Farenthold. Thank you very much.
    I think that since we have been through the complete round 
of questioning, we will ask the witnesses, if anybody else has 
any additional questions, within the next 5 days, and we submit 
them, would you be willing to reply to those in writing?
    So, without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses, 
or add additional material for the record.
    hat concludes today's hearing. Thank you all very much. It 
was an informative and fun hearing.
    [Whereupon, at 10:44 a.m., the Subcommittee was adjourned.]
    
                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Supplemental Material submitted by the Honorable Robert M. McDowell, 
  Visiting Fellow, Hudson Institute, Center for the Economics of the 
                                Internet

                               APPENDIX A