[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]








                NET NEUTRALITY AND THE ROLE OF ANTITRUST

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

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                           REGULATORY REFORM,
                      COMMERCIAL AND ANTITRUST LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 1, 2017

                           Serial No. 115-24

                               __________

         Printed for the use of the Committee on the Judiciary






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

                         U.S. GOVERNMENT PUBLISHING OFFICE 

30-101                         WASHINGTON : 2018       
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman 
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                   TOM MARINO, Pennsylvania, Chairman
                 BLAKE FARENTHOLD, Texas, Vice-Chairman
DARRELL E. ISSA, California          DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                HENRY C. ``HANK'' JOHNSON, Jr., 
KEN BUCK, Colorado                       Georgia
JOHN RATCLIFFE, Texas                ERIC SWALWELL, California
MATT GAETZ, Florida                  PRAMILA JAYAPAL, Washington
                                     BRAD SCHNEIDER, Illinois
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................     6
The Honorable Tom Marino, Pennsylvania, Chairman, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law, Committee on 
  the Judiciary..................................................     1
The Honorable David Cicilline, Rhode Island, Ranking Member, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust 
  Law, Committee on the Judiciary................................     3

                               WITNESSES

Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade 
  Commission
    Oral Statement...............................................     9
Mr. Michael Romano, Senior Vice President, Industry Affairs & 
  Business Development, NTCA (The Rural Broadband Association)
    Oral Statement...............................................    11
Hon. Terrell McSweeny, Commissioner, Federal Trade Commission
    Oral Statement...............................................    13
Hon. Robert M. McDowell, Former Commissioner, Federal 
  Communications Commission
    Oral Statement...............................................    15

                        OFFICIAL HEARING RECORD

Responses to Questions for the Record from the Hon. Maureen K. 
  Ohlhausen, Acting Chairman, Federal Trade Commission...........    36
Responses to Questions for the Record from Mr. Michael Romano, 
  Senior Vice President, Industry Affairs & Business Development, 
  NTCA (The Rural Broadband Association).........................    39
Responses to Questions for the Record from the Hon. Terrell 
  McSweeny, Commissioner, Federal Trade Commission...............    43
Responses to Questions for the Record from Hon. Robert M. 
  McDowell, Former Commissioner, Federal Communications 
  Commission.....................................................    47
              Additional Material Submitted for the Record

Report submitted by the Honorable Tom Marino, Pennsylvania, 
  Chairman, Subcommittee on Regulatory Reform, Commercial and 
  Antitrust Law, Committee on the Judiciary. This material is 
  available at the Committee and can be accessed on the Committee 
  Repository at:

    http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-
      115-JU05-20171101-SD004.pdf

Statements, Letter, and Testimony submitted by the Honorable 
  David Cicilline, Rhode Island, Ranking Member, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law, Committee on 
  the Judiciary. These materials are available at the Committee 
  and can be accessed on the Committee Repository at:

    http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-
      115-JU05-20171101-SD003.pdf

Article submitted by the Honorable Pramila Jayapal, Washington, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust 
  Law, Committee on the Judiciary. These materials are available 
  at the Committee and can be accessed on the Committee 
  Repository at:

    http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-
      115-JU05-20171101-SD005.pdf 

 
                NET NEUTRALITY AND THE ROLE OF ANTITRUST

                              ----------                              


                      WEDNESDAY, NOVEMBER 1, 2017

                       House of Representatives,

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law,

                      Committee on the Judiciary,

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Tom Marino 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Marino, Goodlatte, Farenthold, 
Issa, Collins, Buck, Ratcliffe, Gaetz, Handel, Cicilline, 
Conyers, Johnson of Georgia, Eric Swalwell, Jayapal, and 
Schneider.
    Staff Present: Ryan Dattilo, Counsel; Slade Bond, Minority 
Counsel; and Andrea Woodard, Clerk.
    Mr. Marino. Good morning. The Subcommittee on Regulatory 
Reform, Commercial, and Antitrust Law will come to order. 
Without objection, the Chair is authorized to declare recesses 
of the Committee at any time. We welcome everyone to today's 
hearing on ``Net Neutrality and the Role of Antitrust'', and I 
now recognize myself for an opening statement.
    The Federal Communications Commission and its new Chairman, 
Ajit Pai, are in the process of evaluating what is the proper 
way to protect consumer welfare and support innovation in the 
Internet marketplace. We are here today to examine the role of 
antitrust law in that debate.
    The Internet has been an overwhelmingly positive 
development for our country by spurring innovation, creating 
jobs, and establishing a dynamic marketplace for goods and 
ideas. All branches of our government should strive to protect 
the unimpeded growth of the Internet so that consumers and our 
economy can continue to reap its benefits.
    I strongly believe, however, that actions should be taken 
to prevent discriminatory and anticompetitive conduct from 
occurring in the Internet marketplace. The question at hand 
today is what role should antitrust laws and the Federal Trade 
Commission, which helps to enforce those laws, play in 
preventing and policing this type of conduct. Antitrust law has 
a number of benefits we should consider.
    Antitrust law and the standards applied by the courts have 
developed, evolved, and been refined over decades. This stands 
in contrast to the regulations imposed under the previous FCC's 
2015 Open Internet Order, which can be interpreted and enforced 
by a constantly rotating commission, and the judicial 
interpretation of which is uncertain. Antitrust law uniformly 
applies to all participants in the Internet marketplace.
    In contrast, the 2015 order's regulations only apply to 
Internet service providers. Antitrust law deters and, as 
necessary, can be used to prosecute conduct once it occurs and 
determine on a case-by-case basis whether a violation has 
occurred. This allows for flexibility and pro-consumer 
innovation. The 2015 Order applies a ``one-size-fits-all'' 
approach, imposing a burden on all regulated parties, 
regardless of whether they actually engaged or may want to 
engage in improper conduct, and discouraging potential 
innovation.
    The impact of today's discussion is significant. Consider, 
for example, the case of rural broadband. Because rural areas 
of America tend to be sparsely populated, satellite and fixed-
wireless technologies are often used to deliver Internet access 
to rural customers. These technologies are costly, and 
consequently often involve strict data caps. A practice known 
as ``zero-rating,'' or the exemption of certain data uses from 
consumers and customers' data caps helps to address these 
concerns through competition and innovation, lowering prices, 
and improving service for customers. Yet under the 2015 Order, 
this consumer welfare-enhancing competition was almost stopped.
    Consider also the case of differentiated broadband plans. 
When American families buy groceries, they have the choice of 
purchasing food from the local supermarket or from a high-end 
organic retailer like Whole Foods. Families who just want the 
basics or are on a limited income, are not forced to subsidize 
the preferences of shoppers with higher-end preferences.
    But because of the FCC's rigid net neutrality rules, 
broadband consumers do not have the same flexibility. Under the 
guise of equal access, those who use the Internet sparingly--
often, the poor and elderly--are forced to subsidize their more 
affluent high-bandwidth-consuming neighbors' broadband bills. 
Let's also consider the future of the Internet.
    5G, the next generation of mobile broadband, will deliver 
speeds far surpassing today's LTE technologies as well as the 
speeds of many American's home broadband connections. 5G 
promises not only to advance competition in the mobile wireless 
industry but also to connect a new array of ``Internet of 
Things,'' or ``IoT'' devices, such as network-connected 
agricultural monitoring devices, autonomous vehicles, and 
medical monitoring devices. 5G delivers on these promises by 
utilizing technologies that prioritize certain network uses 
that require extreme responsiveness. Innovations in telehealth, 
remote medical device monitoring, or communications amongst 
autonomous vehicles will all benefit from prioritized 
connections. Yet under the 2015 Order, such innovation might be 
stopped by the regulatory overreach of a future administration.
    I look forward to hearing the testimony of today's 
witnesses on the potential benefits, or, if relevant, 
limitations of using antitrust law to protect consumers and 
innovation in the Internet marketplace.
    The Chair now recognizes the Ranking Member of the 
Subcommittee on Regulatory Reform, Commercial, and Antitrust 
law, Mr. Cicilline of Rhode Island, for his opening statement.
    Mr. Cicilline. Thank you, Mr. Chairman, and thank you for 
calling this hearing today. Welcome to our witnesses. Today's 
hearing is an opportunity to examine whether antitrust 
enforcement is an effective and responsive substitute for the 
clear bright-line consumer protections established by the 2015 
Open Internet Order.
    When working families pay their bill for broadband Internet 
access, they expect to get what they pay for: access to the 
entire lawful Internet, not just portion of it, at the speed 
they pay for. Without these protections, broadband providers 
could slow down consumers' Internet speeds to certain websites, 
require payments by third parties to speed traffic to 
consumers, or block certain websites altogether. To be clear, 
these concerns are firmly grounded in reality.
    As the United States Court of Appeals for the D.C. Circuit 
observed in 2014, it is, and I quote, ``common sense economic 
reality'' that broadband providers have powerful incentives to 
require fees from edge providers to prioritize customer speeds 
and discriminate against certain types of traffic.
    Consequently, as the court noted, this behavior threatens 
Internet openness in ways that would ultimately inhibit the 
speed and extent of future broadband deployment. Importantly, 
these protections do not apply to reasonable management of 
networks by Internet service providers to ensure that their 
consumers have the fastest and most reliable Internet speeds 
possible.
    Moreover, and this is a fundamental point, these 
protections do not apply to specialized services, like heart 
monitors, energy consumption sensors, or voice services, which 
are entirely outside the scope of the 2015 Open Internet Order 
because they are not a former broadband Internet access service 
for consumers. Under the Trump administration, the Federal 
Communications Commission is considering whether to abolish or 
substantially revise these protections.
    According to the Commission's notice of proposed 
rulemaking, the proposed rule seeks to, and I quote, ``reverse 
the decline in infrastructure investment, innovations, and 
options for consumers'' and address the concerns of broadband 
providers with regulatory uncertainty.
    The Supreme Court has long held, however, that the 
Commission cannot simply rescind rules, but instead must 
examine the relevant data and articulate a rational connection 
between relevant facts and its deregulatory actions.
    Notwithstanding the Commission's claims that our current 
net neutrality protections have undermined broadband deployment 
and adoption, the U.S. Court of Appeals for the D.C. Circuit 
has held twice in the past 3 years that Internet openness 
fosters innovation and leads to the expansion and improvement 
of broadband infrastructure. Unless the Commission is able to 
explain why it has ignored this data showing the causal 
relationship between strong net neutrality protections and 
broadband investment, its actions are likely to be arbitrary 
and capricious under the Administrative Procedures Act.
    Turning to the subject of today's hearing, there is 
substantial uncertainty concerning the application of the 
antitrust laws to discriminatory conduct by broadband 
providers. First, it is unclear that the Federal Trade 
Commission has authority to enforce the antitrust law against 
common carriers, which are exempted under section 5 of the FTC 
Act, even where a carrier is acting as a broadband provider. 
This exact question is before the ninth circuit in an en banc 
review of its prior ruling that the FTC does not possess this 
authority.
    Secondly, to the extent that the Federal Trade Commission 
even has the authority over common carriers, there is no 
evidence that antitrust enforcement is a substitute for bright-
line rules to ensure openness. The Commission's proposal does 
not address or even ask this question, while the Federal Trade 
Commission's 2007 report on broadband connectivity and 
competition policy does not provide clear guidance on whether 
paid prioritization blocking or throttling are cognizable harms 
under the antitrust laws.
    The point is underscored by bipartisan legislation 
introduced by Chairman Goodlatte in 1999 and Chairman 
Sensenbrenner in 2006, which each would have made 
discriminatory conduct by broadband providers an antitrust 
violation tacitly recognizing that this conduct does not 
violate the antitrust laws today. And finally, as Professor Tim 
Wu has previously testified before this Subcommittee, the type 
of economic analysis that antitrust enforcement relies upon 
does not reflect diffuse but important values, like speech or a 
healthy economy.
    In other words, it is virtually impossible for antitrust 
enforcement to protect against the full array of discriminatory 
conduct prohibited by the Open Internet Order. Before closing, 
I want to make a moment to note that a primary goal of 
preserving Internet openness is to prevent Internet gatekeepers 
from choosing the content that consumers are able to see online 
or balkanizing the Internet.
    Today, there is increasing concern that some platforms have 
abused their dominance to stifle innovation, undermine privacy, 
and divert readers and advertising revenue away from 
trustworthy sources of news and information, as the Open 
Markets Institute recently observed in a letter to the FTC. I 
have previously requested that the Committee hold a hearing to 
examine the effects of platform dominance on consumers, 
innovations, and workers to ensure that the antitrust laws are 
working effectively, and I renew that request today.
    As I have said before, we cannot retreat from hard 
conversations about new issues. I again thank the Chairman for 
calling today's hearing and look forward to the testimony of 
our esteemed panel of witnesses. And I yield back.
    Mr. Marino. Thank you. The Chair recognizes the Chairman of 
the full Judiciary Committee, Mr. Goodlatte from Virginia for 
his opening statement.
    Chairman Goodlatte. Thank you, Mr. Chairman. And I very 
much appreciate your holding this very important hearing today. 
Actually, today's hearing marks the seventh hearing over the 
past decade that the Judiciary Committee has held on the topic 
of net neutrality. The significant amount of time and effort 
devoted to this topic evidences the need for a more permanent 
solution. Fortunately, the FCC, under the leadership of newly-
confirmed Chairman Ajit Pai, is taking actions to help steer us 
in that direction.
    On May 18, 2017, 2 years after the Obama administration's 
FCC imposed the Open Internet Order, the current FCC adopted a 
Notice of Proposed Rulemaking (``NPRM'') to reexamine the 
regulatory framework established by the 2015 Order. The NPRM 
proposes, among under things, to reverse the decision of the 
Obama administration's FCC to reclassify broadband Internet 
access service as a telecommunications service under the 
Communications Act of 1934. The NPRM also requests comment on 
whether to keep, modify, or eliminate certain ``bright-line 
rules'' adopted in the 2015 Order and whether regulatory 
intervention in the Internet service provider market is 
necessary. Finally, the NPRM proposes to eliminate the 
``general Internet conduct standard,'' which gives the FCC 
significant discretion to prohibit any ISP practice that it 
believes runs afoul of a non-exhaustive list of factors.
    The Internet that existed before the 2015 Order was 
dynamic, competitive, open, and free. By raising costs, 
imposing heavy regulatory burdens, introducing significant 
regulatory uncertainty, and instituting government meddling 
into nearly every aspect of the Internet, the Obama 
administration's FCC seriously undermined the Internet's 
competitive nature.
    The Obama administration's FCC argued, under the guise of 
``net neutrality,'' that imposing blanket regulation on the 
Internet marketplace is needed to encourage competition and 
promote a ``virtuous cycle'' of broadband use, innovation, and 
investment. 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 flourished precisely because it 
developed in a less regulated market. That is not to say that 
we should stand by and allow companies to engage in 
discriminatory or anticompetitive activities. Rather, I believe 
that the principles of ``net neutrality'' can be best achieved 
through the vigorous application of our Nation's antitrust laws 
and, at most, a much lighter-handed regulatory approach than 
that contained in the 2015 Order.
    Strong enforcement of our antitrust laws can prevent 
dominant Internet service providers from discriminating against 
competitors' content or in engaging in anticompetitive pricing 
practices. Supporters of net neutrality have voiced particular 
concerns over vertical agreements or mergers between Internet 
service providers and related businesses. Many experts 
acknowledge that these vertical agreements could possibly lead 
to anti-competitive conduct that could potentially harm 
consumers. In extreme cases, these arguments could eventually 
block downstream products, degrade services, and lead to higher 
prices for American families. I strongly agree that these anti-
competitive practices should be aggressively deterred and 
punished.
    Yet, it is in these specific areas that the FTC has the 
relevant expertise and the most robust toolbox to address 
anticompetitive activities. Blanket regulation, by contrast, 
would deny consumers the potential benefits in cost savings and 
improved services that may result from vertical agreements.
    Furthermore, antitrust laws can be applied uniformly to all 
Internet market participants, not just to Internet service 
providers, to ensure that improper behavior is policed 
uniformly across all corners of the Internet marketplace.
    The House Judiciary Committee conducted previous hearings 
last Congress, examining whether antitrust law or regulation is 
more effective at protecting consumers and innovation on the 
Internet. And witnesses testified strongly in support of 
applying antitrust law.
    Given the NPRM being considered by the FCC, it is essential 
that we continue this conversation as we search for a more 
permanent solution to this issue that provides for the 
flexibility to drive innovation and consumer welfare.
    Ultimately, I am open to the idea of amending the antitrust 
laws, if necessary, to account for the characteristics of the 
Internet. I will continue to use the House Judiciary 
Committee's jurisdiction over our Nation's antitrust laws and 
enforcement agencies in order to protect an open Internet and 
ensure that the Internet continues to flourish in a competitive 
deregulatory environment.
    Today's hearing will demonstrate the significant support 
for reversing the 2015 Order and returning to a less-intrusive 
regulatory state in which the antitrust laws and the Federal 
Trade Commission play a significant role in addressing harmful 
conduct.
    I look forward to hearing today's testimony on the role of 
antitrust laws in creating a permanent solution to the net 
neutrality debate that has been raging for over a decade. And I 
yield back. Thank you, Mr. Chairman.
    Mr. Marino. Thank you. The Chair recognizes the Ranking 
Member of the full Judiciary Committee, Mr. Conyers of 
Michigan, for his opening statement.
    Mr. Conyers. Thank you, Chairman Marino. And top of the 
morning to all of our witnesses and members here, including the 
son of one of them. The Judiciary Committee has a central role 
in studying the issue of net neutrality and, more generally, 
competition on the Internet. As the Committee considers today 
the specific question of whether antitrust law would be a 
better tool than regulation to ensure Internet competition and 
innovation, we should keep several factors in mind.
    To begin with, failure to guarantee net neutrality is not 
an option. As I have previously observed at prior hearings on 
this topic, and I do not want to give my seniority away, but in 
2008, 2011, 2014, 2015, there are many areas in the United 
States where consumers have the choice of only one or two 
broadband Internet service providers. As a result, these 
broadband providers effectively function as monopolies or 
duopolies, let's face it.
    Their control over the broadband access market gives them 
the incentive and ability to provide differential treatment of 
content, depending on factors like how much a content provider 
pays or whether the broadband provider also offers competing 
content. Such discrimination can lead to less consumer choice, 
less innovation, higher costs, and more power to control the 
flow of information and ideas in the hands of fewer broadband 
providers. Enforcement of existing antitrust laws as the 
exclusive or primary means of ensuring an open Internet, 
however, would be insufficient.
    Under current antitrust law, there is relatively little 
that regulators can do outside the merger review context to 
address the conduct of a regulated industry, such as 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 with respect to net neutrality.
    In addition, antitrust enforcement alone would be a 
cumbersome, more limited, more resource-intensive, and after 
the fact way than regulation to develop a regulatory regime for 
net neutrality. Moreover, antitrust law is not sufficiently 
broad in scope, as it fails to address the noneconomic goals of 
net neutrality, including the promotion of innovation and the 
protection of free speech and political debate.
    Now, while I welcome the recent efforts of some 
progressives to restore the original understanding and purpose 
of antitrust law to better account for the political 
implications of the excessive concentration of corporate power, 
antitrust law, nonetheless, will remain a necessary but 
insufficient tool with respect to ensuring net neutrality. In 
light of the foregoing, the Federal Communications Commission's 
2015 Open Internet Order provides a strong and vital set of 
rules for ensuring an open Internet, and the Commission should 
not rescind it.
    Rules to address net neutrality have the benefit of 
addressing potential threats to an open Internet before they 
fully materialize. Additionally, having a set of best practices 
enshrined in rules would provide certainty for the industry. I 
am particularly pleased that the Open Internet Order contains 
key provisions that many others like myself have long called 
for, including a rule preventing broadband providers from 
blocking or throttling Internet access or from imposing paid 
prioritization of Internet traffic and prohibition on any other 
practices that unreasonably interfere with or disadvantage 
users' ability to access broadband service or lawful content 
applications or services.
    These measures are the best way to protect the virtuous 
cycle of innovation which net neutrality fosters and which 
ensures both competition and innovation among broadband and 
content providers to the ultimate benefit of consumers. I thank 
Chairman Marino for holding this hearing, and I look forward to 
our witnesses' testimony today. Thank you, Mr. Chairman.
    Mr. Marino. Thank you. Without objection, other members' 
opening statements will be made part of the record.
    Statement submitted by the Honorable Henry C. ``Hank'' 
Johnson, Jr., Georgia, Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law, Committee on the Judiciary. This 
material is available at the Committee and can be accessed on 
the Committee Repository at: http://docs.house.gov/meetings/JU/
JU05/20171101/106572/HHRG-115-JU05-MState-J000288-20171101.pdf.
     Mr. Marino. I will begin by swearing in our witnesses 
before we introduce them. If you would please all rise, and 
raise your right hand.
    Do you swear that the testimony you are about to give 
before this Committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Let the record reflect that all of the witnesses have 
responded in the affirmative. Please be seated, and thank you.
    I am going to introduce all of the witnesses before we 
start with your opening statements. Maureen K. Ohlhausen was 
sworn in as Commissioner of the Federal Trade Commission on 
April 4, 2012 and was designated as Acting Chairman by 
President Donald Trump in January 2017.
    Prior to joining the Commission, Ohlhausen was a partner in 
Wilkinson Barker Knauer, LLP, where she focused on FTC issues, 
including privacy, data protection, and cybersecurity. Ms. 
Ohlhausen previously served at the Commission for 11 years, 
most recently as Director of the Office of Policy Planning from 
2004 to 2008, and she led the FTC's Internet access taskforce. 
Ms. Ohlhausen was also Deputy Director of that office.
    From 1998 to 2001, she was an attorney advisor for former 
FTC Commissioner, Orson Swindle, advising him on competition 
and consumer protection matters. Before coming to the FTC, Ms. 
Ohlhausen spent 5 years at the U.S. Court of Appeals for the 
D.C. Circuit serving as a law clerk for Judge David B. Sentelle 
and as a staff attorney.
    She also clerked for Judge Robert Yock of the U.S. Court of 
Appeals Claims from 1991 to 1992. Ms. Ohlhausen graduated with 
distinction from Antonin Scalia Law School, George Mason 
University in 1991 and graduated with honors from the 
University of Virginia in 1984. Commissioner, thank you for 
being here.
    Michael Romano is the Senior Vice President of Industry 
Affairs and Business Development at NTCA Rural Broadband 
Association, where he oversees public policy advocacy, industry 
affairs, business opportunities, and community outreach efforts 
for the trade association on behalf of several hundred rural 
telecom operator members.
    Prior to working with NTCA, Mr. Romano was general counsel 
with the firm Bingham McCutchen LLP, representing 
telecommunication carriers and other service providers in 
regulatory rulemaking and adjunctive proceedings and civil and 
administrative litigation.
    He has also worked with Global Telecom and Technology, 
formerly Global Internetworking as vice president and General 
Counsel, and at other tech companies, such as America Online 
and Level 3 Communications. Mr. Romano was also an associate at 
the firm of Swidler Berlin LLP, representing clients in 
regulatory processings for State regulators in the Federal 
Communications Commission and in contract negotiations with 
other industry operators. Mr. Romano earned his B.A. from 
Middlebury College and his J.D. from Georgetown University Law 
Center. Welcome, sir.
    Terrell McSweeny currently serves as Commissioner to the 
FTC. Prior to her appointment to the Commission by President 
Obama, Commissioner McSweeny served as Chief Counsel for the 
Competition Policy and Intergovernmental Relations Department 
with the Antitrust Division of the Department of Justice. 
Commissioner McSweeny also served as Senior Advisor to 
President Obama and Vice President Biden, Deputy Chief of Staff 
to then-Senator Biden, and counsel to the Senate Judiciary 
Committee.
    She also worked in private practice at the firm of 
O'Melveny and Myers. Commissioner McSweeny earned her 
bachelor's degree from Harvard University and her J.D. from 
Georgetown University School of Law.
    Robert McDowell is a partner with the firm Cooley LLP, 
where he specializes in regulatory communication mergers and 
acquisitions and telecommunications and wireless technology. 
Prior to joining Cooley, Mr. McDowell served as a Commissioner 
of the Federal Communications Commission, the FCC, for 7 years. 
He was first appointed by President George W. Bush in 2006 and 
again by President Obama in 2009.
     At the FCC, Mr. McDowell led efforts to expand consumer 
access to spectrum through his work on the two largest wireless 
auctions in the U.S. history at the time. He played a key role 
in 2009 digital television transition, and led efforts to 
establish the first Federal Civil Rights rule in a generation 
by creating a ban on racially discriminatory practices in 
broadcast advertising.
     He also helped oversee several large and complex mergers 
including SiriusXM and Comcast NBCUniversal. Prior to serving 
with the FCC, he was senior vice president for CompTel, the 
Competitive Telecommunications Association. Mr. McDowell earned 
his B.A. with honors from Duke University and his J.D. from 
William and Mary Law School. And I know that he has some very 
competent backup with him sitting behind him, his son. So, 
welcome.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. I ask that each witness 
summarize his or her testimony in 5 minutes or less. To help 
you stay within that time, there is a timing light in front of 
you. The light will switch from green to yellow indicating that 
you have 1 minute to conclude your testimony. And when the 
light turns red, it indicates that the witnesses' 5 minutes 
have expired.
    I want to thank you witnesses for being here, and the 
Honorable Ms. Ohlhausen, please.

 STATEMENTS OF MAUREEN K. OHLHAUSEN, ACTING CHAIRMAN, FEDERAL 
   TRADE COMMISSION; MICHAEL ROMANO, SENIOR VICE PRESIDENT, 
    INDUSTRY AFFAIRS AND BUSINESS DEVELOPMENT, NTCA (RURAL 
BROADBAND ASSOCIATION); TERRELL MCSWEENY, COMMISSIONER, FEDERAL 
  TRADE COMMISSION; AND ROBERT MCDOWELL, FORMER COMMISSIONER, 
               FEDERAL COMMUNICATIONS COMMISSION

               STATEMENT OF MAUREEN K. OHLHAUSEN

    Ms. Ohlhausen. Chairman Marino, Ranking Member Cicilline, 
and members of the Subcommittee, I appreciate this opportunity 
to appear before you today to discuss network neutrality and 
the role of antitrust. Ten years ago, a bipartisan FTC approved 
a staff report that analyzed competition in consumer protection 
issues related to net neutrality and cautioned against 
regulation. Applying economic and antitrust analysis, our 
report explained that banning non-neutral behavior could harm 
consumers more than it helps them. Instead, the report noted 
that the FTC could assess whether ISP's practices are 
anticompetitive, unfair, or deceptive on a case-by-case basis.
    The report also recommended that ISPs clearly disclose the 
material terms of broadband access, particularly any traffic-
shaping practices. This report remains highly relevant today, 
and where the evidence has changed, it shows the broadband 
market is more competitive than it was in 2007, strengthening 
the report's conclusions. More recently, FTC staff filed a 
comment to the FCC detailing our expertise and recommending 
that the FCC reclassify broadband as a title I noncommon 
carrier service. And I agree with that recommendation, and 
filed my own comment to that effect.
    As the 2007 report and subsequent comments state, the FTC's 
antitrust and consumer protection tools help ensure that 
consumers can pursue their preferences, whether for prioritized 
services or for equal treatment of all data by ISPs. The FTC 
has addressed a wide range of anticompetitive behavior, 
including the kinds of behavior that concern net neutrality 
advocates.
    For example, the FTC has sued companies for foreclosing 
rival content in an exclusionary or predatory manner, and 
challenged problematic access discrimination, pricing, and 
bundling practices. And we have conditioned vertical mergers 
that would have foreclosed competition in a downstream market. 
Antitrust enforcement, by protecting the competitive process, 
can promote net neutrality if that is what consumers want.
    Advocates of regulation often argue that consumers value 
the equal treatment of data by ISPs. If so, then any ISP that 
systematically degrades applications and content that its 
subscribers demand will certainly face a backlash. On the other 
hand, consumers may desire and benefit from certain non-neutral 
ISP practices, such as streaming services bundles or 
prioritization of telemedicine services. Case-by-case antitrust 
enforcement focused on competitive harm will allow ISPs and 
content providers to experiment in ways that benefit consumers, 
while guarding against arrangements that foreclose access to 
edge providers.
    Supporters of net neutrality regulation also commonly 
assert that the retail broadband market lacks competition, but 
measuring competition is not a simple exercise of counting how 
many wireline ISPs in an area provide broadband at a certain 
speed threshold. It requires careful product and market 
definitions and analysis of the disciplining effects of 
substitutes and potential entrants. The evidence of growing 
competition, such as improving speeds, the expansion of mobile 
broadband, and vigorous pricing competition, must also be 
considered when determining whether net neutrality regulation 
is necessary.
    Like our antitrust tools, the FTC's consumer protection 
authority can help address concerns that consumers are not 
getting what they expect from their ISP. Our deception 
authority bans companies from offering consumers one product or 
service but providing them something different. And if ISPs 
promise to adhere to net neutrality principles, the FTC can 
hold them to these promises. Our deception authority also 
requires companies to disclose material information--for 
example, blocking or throttling practices--if not disclosing it 
would mislead a reasonable consumer.
    The FTC's unfairness authority prohibits practices where 
the actual or likely consumer injury is substantial, 
unavoidable, and not outweighed by benefits to consumers or 
competition. The FTC has used this authority to sue companies 
that unilaterally violated their promises. Indeed, the FTC is 
currently challenging as unfair and deceptive AT&T Mobility's 
alleged practice of throttling wireless data plans which they 
advertise as unlimited.
    Case-by-case enforcement against particular instances of 
harm to consumers or competition is the right approach when we 
know that a type of practice typically benefits consumers and 
spurs competition.
    In contrast, a per se prohibition is appropriate only where 
we have evidence that a specific practice nearly always harms 
consumers without corresponding benefits. In short, the FTC has 
tools that are capable of protecting consumers and competition 
online. Thank you.
    Hon. Ohlhausen's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-115-JU05-
Wstate-OlhausenM-20171101.pdf.
    Mr. Marino. Thank you. Mr. Romano.

                  STATEMENT OF MICHAEL ROMANO

    Mr. Romano. Chairman Marino, Ranking Member Cicilline, and 
members of the Subcommittee, thank you for the chance to offer 
the perspective of small, rural broadband network operators on 
agency roles and governance related to broadband. I am Mike 
Romano, Senior Vice President of NTCA, the Rural Broadband 
Association.
    Our nearly 850 members serve the most rural parts of the 
U.S., less than 5 percent of the U.S. population, spread across 
more than 35 percent of the U.S. land mass. On average, they 
employ a few dozen people.
    Nonetheless, these small, hometown businesses strive to 
deploy networks that position rural America for success in a 
broadband world. Any small business can talk to the perils of 
ambiguous and heavy handed regulation, but for rural broadband 
operators in particular, time and resources needed to comply 
with the complex rules can hinder efforts to fulfill a 
statutory mandate for universal service, ensuring that every 
American, no matter where they live, has access to services 
reasonably comparable in price and quality to those in urban 
areas.
    At the same time, the capital-intensive nature of rural 
telecom makes regulatory certainty essential. Finding a steady 
balance in any framework is critical to promote and sustain 
rural broadband. This requires a division of labor between 
agencies based upon clear statutory constructs, core 
competencies, and expertise. Thus, even as NTCA has urged rules 
of the road to enable and sustain rural broadband, we have 
expressed concern about rules that may reach too far or be used 
as a platform for yet more rules to come.
    To this end, NTCA did not support retail broadband 
regulation by the FCC leading up to the Open Internet Order. We 
advocated, instead, for a different regime that would have 
targeted oversight of interconnection between the underlying 
networks. We had hoped the 2015 Open Internet Order might adopt 
a limited approach like we advocated, but it did not. Instead, 
the order imposed complex and escalating obligations only upon 
retail broadband providers, despite the dynamic, multisided 
nature of the broadband ecosystem.
    Beyond questions of burden and the one-sided nature of the 
rules, the value of some of the rules adopted in 2015 remains 
unclear. For example, NTCA argued that new sector-specific 
privacy rules to govern custody and the use of data would only 
burden retail broadband providers and confuse customers, given 
other firms have control of the same data subject to different 
rules.
    For these reasons, NTCA was grateful when the FCC and 
Congress earlier this year put brakes on certain of the rules. 
Our Nation now has an important opportunity to reset and to 
establish a more appropriate division of labor, based, again, 
upon clear statutory constructs, core competencies, and agency 
expertise.
    NTCA submits that consumer broadband protection and retail 
marketplace competition issues are better overseen by the FTC, 
which is well-versed in such matters in the oversight of mass 
market services generally than by the FCC. Placing these 
responsibilities with the FTC, pursuant to its statutory 
mandates, can help avoid the kinds of concerns I described 
moments ago. But other distinct statutory provisions are 
important to keep in mind too, as our Nation considers next 
steps with respect to promoting the use of broadband.
    Of particular significance to rural America is the separate 
statutory mandate for universal service. The ongoing importance 
of promoting universal service in a broadband world must be 
sustained in any regulatory transitions to come. To help 
fulfill this statutory mandate, NTCA has highlighted the need 
to ensure that underlying networks interconnect and exchange 
data. A targeted focus by the FCC on such matters would be in 
sharp contrast to retail broadband services that have been the 
subject of sweeping regulatory attention to date.
    A network-focused framework need not, and indeed must not, 
interfere with a dynamic retail broadband marketplace. It must 
not transform into new net neutrality rules, creep into retail 
regulation, or erect ex-ante obligations that hinder 
innovation. This, in fact, was one of our primary concerns with 
the Open Internet Order in that the new rules looked very 
different than even the title II based frameworks under which 
our members had operated for years as historical telephone 
companies.
    But representing networks that sit hundreds of miles away 
from potential interconnection points and have already faced 
connectivity challenges in other contexts, NTCA is deeply 
concerned about ensuring rural America gets and stays connected 
with the rest of the broadband world, consistent with the goals 
of universal service.
    NTCA submits the FCC is well-equipped by law and experience 
to deal with matters of interconnection specifically as a 
distinct and separate matter from any net neutrality 
considerations. We, therefore, encourage a continued role for 
the agency in this discrete yet critical regard, even as the 
FTC might soon reassume primacy with respective to consumer 
protection and competition in the retail broadband marketplace.
    In short, as changes are contemplated to address broadband 
policy, NTCA urges Congress and the FCC and FTC working in 
partnership to ensure that other distinct but important public 
policy principles, such as universal service and connectivity, 
are also fulfilled and sustained in a broadband world. NTCA 
looks forward to continuing to work with you and the agencies 
on behalf of our hundreds of small operator members and the 
millions of rural Americans they serve. Thank you.
    Mr. Romano's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-115-JU05-
Wstate-RomanoM-20171101.pdf.
    Mr. Marino. Thank you. The Chair now recognizes the 
Honorable Ms. McSweeny.

                 STATEMENT OF TERRELL MCSWEENY

    Ms. McSweeny. Good morning. Thank you very much, Chairman 
Marino and Ranking Member Cicilline, Chairman Goodlatte, 
Ranking Member Conyers; a pleasure to see you and the 
distinguished members of the Committee. I am Terrell McSweeny. 
I am a commissioner at the Federal Trade Commission, but today 
I am speaking on behalf of myself, not the commission. I 
support the FCC's 2015 Open Internet Order because it 
establishes clear rules to protect consumers and entrepreneurs 
who are dependent on a few very large broadband providers that 
serve as the gatekeepers to the Internet.
    For more than a decade, the status quo in the United States 
has been an open Internet that supports thriving innovation. I 
am proud to serve at the Federal Trade Commission, but it is 
wrong to assume that a framework that relies solely on 
backward-looking consumer protection and antitrust enforcement 
can provide the same assurances to innovators and consumers as 
forward-looking rules contained in the FCC's Open Internet 
Order.
    While it is true that the FTC possesses a great deal of 
expertise in areas of antitrust and consumer protection, it 
does not possess specialized subject matter expertise in 
telecommunications, data network management practices, or in 
detecting instances of data discrimination. That expertise is 
housed at the FCC. These are very real and significant limits 
to the effectiveness of the FTC's tools in policing 
nondiscrimination on networks and protecting competition.
    Moreover, antitrust tools are designed to protect 
competition, but broadband markets are highly concentrated. The 
majority of American consumers have little or no choice when it 
comes to wireline broadband. Competitive pressure cannot be 
counted on to either push ISPs to offer consumers better 
contract terms or quality of service or to limit discriminatory 
conduct.
    Since most U.S. consumers are dependent on a few big 
players to access the Internet, the critical question, then, is 
whether these companies have the incentive and ability to harm 
consumers and competition. Both the Department of Justice and 
the Federal Communications Commission have recognized that they 
do.
    For example, big broadband companies also supply video 
programming. That means that their revenues are directly 
threatened when consumers use broadband connections to access 
competing video providers or new entrants. It is well-
established that appropriately tailored regulation can 
complement antitrust law in highly concentrated markets, 
particularly when vertically integrated incumbents have 
incentives to harm competitors. Absent clear rules, the 
detection of discriminatory conduct is costly, difficult, time-
consuming, and hard to remedy.
    For example, let's say you are watching streaming video, 
and your stream becomes slow or grainy. Is that caused by 
intentional data discrimination by your ISP, or might it be a 
server issue related to the content provider? Perhaps it is a 
spotty connection, or maybe it is something else entirely. How 
would a typical consumer know? How would the FTC?
    If the FTC were to detect a possibly anticompetitive 
practice, antitrust enforcement requires not only detection but 
thorough investigation, prosecution, a potentially lengthy rule 
of reason analysis, and perhaps a multiyear appeals process. At 
the end of that process, we could not travel back in time to 
undo the harm that had excluded the rival or reset the 
competitive evolution of the marketplace. Remedy remains a 
serious challenge to relying on an antitrust enforcement 
approach.
    Moreover, the premise of Internet openness is that 
consumers should be able to use their broadband connections to 
access the lawful content of their choosing. Noneconomic 
values, such as freedom of expression and diversity of 
discourse, may not be easily reached under antitrust law. 
Finally, the FTC's jurisdiction over common carriers remains 
unclear. Even if the FCC reclassifies broadband as an 
information service, the majority of providers will continue to 
provide common carrier services, and, therefore, will remain 
classified as common carriers.
    Unless Congress repeals our common carrier exemption, we 
will continue to face challenges to our authority over these 
industries. Additionally, renovations to the FTC's authority--
for example, giving it more extensive tools to protect consumer 
data and privacy, making sure it has the proper resources, and 
giving it more leeway to challenge anticompetitive measures and 
conduct in highly-concentrated markets--would help the 
Commission keep pace with changes in the economy.
    Earlier this year, Congress took the unfortunate action, in 
my view, of repealing the FCC's broadband privacy rules, 
leaving consumers without important protections over how their 
data is used and shifting the risk from industry giants onto 
American families. We should not double down on this approach. 
This is not a situation where we have an either-or choice 
between clear FCC rules to protect an open Internet and FTC 
enforcement.
    By design, the agencies have different tools, with 
different features. Both have a role to play when it comes to 
protecting consumers and ensuring an Internet that fosters 
innovation. Thank you.
    Hon. McSweeny's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-115-JU05-
Wstate-McSweeneyT-20171101.pdf.
    Mr. Marino. Thank you. The Chair recognizes the Honorable 
Mr. McDowell.

                  STATEMENT OF ROBERT MCDOWELL

    Mr. McDowell. Thank you, Mr. Chairman. Chairman Goodlatte, 
Chairman Marino, Ranking Members Conyers and Cicilline, and all 
distinguished members of the Committee, thank you so much for 
having me back before your Committee today. Also, thank you for 
the special recognition of my aide-de-camp for the day, Cormac 
Augustine McDowell. It is an honor to be back here and also 
with this distinguished panel with Chairman Ohlhausen, 
Commissioner McSweeny, and Mr. Romano.
    So, I am a partner at Cooley LLP, and today, I am 
representing Mobile Future, where I am the Chief Public Policy 
Advisor. Mobile Future is a coalition of cutting-edge 
technology and communications companies and a diverse coalition 
of nonprofit organizations working to support an environment 
that encourages investment and innovation in the dynamic 
wireless sector, such as with 5G and the Internet of Things.
    During my 7 years as a commissioner of the Federal 
Communications Commission, from 2006 to 2013, I worked 
extensively on protecting an open and freedom-enhancing 
Internet, and testified before this Committee during many of 
the hearings that Mr. Conyers pointed out earlier.
    During the course of my work, I weighed the costs and 
benefits of ex-ante economic regulation of these markets versus 
ex-post enforcement of antitrust and competition laws. Each 
time I examined the facts and the law, I determined that ex-
post enforcement worked far better for the dynamic and fast-
paced Internet market than top-down ex-ante telecom regulation 
drawn from antiquated statutes. I was also inspired by the 
FTC's unanimous and bipartisan report from 2007, which 
underscored the importance of avoiding unnecessary economic 
regulation in this space, and it prophetically warned against 
its likely unintended consequences.
    Indeed, bipartisan and light-touch Internet policies 
engendered during the Clinton-Gore administration worked 
incredibly well, making the Internet the greatest deregulatory 
success story of all time. Internet technologies proliferated 
faster than any other disruptive technology in history and are 
improving the human condition more and more each day as the 
direct result of flexible light-touch public policy.
    But in 2015, the FCC radically departed from that long-
standing bipartisan light-touch consensus when it voted three 
to two to classify broadband Internet access as a telecom 
service for the first time in U.S. history. In so doing, it 
imposed a 1934 law designed for phones that were held in two 
hands onto the complex and dynamic Internet, all while 
stripping the Federal Trade Commission of its ability to police 
the broadband market due to the common carrier exemption.
    As a result, investment in next-generation networks has 
been deterred, popular innovations, such as zero-rating 
offerings, have been discouraged, and the legal landscape has 
been thrown into a state of confusion, especially when it comes 
to consumer privacy protection.
    The FCC is poised to reverse that error, however. Assuming 
it will rescind the title II Order, consumers, entrepreneurs, 
innovators, and investors alike should all know that American's 
time-tested antitrust and competition laws stand at the ready 
to protect the Internet ecosphere and keep it vibrant, just as 
they did so well before the counterproductive 2015 Order.
    Both the Department of Justice, who is not here today, and 
the FTC have proven themselves to be highly effective cops on 
the beat throughout the complex Internet economy.
    Lastly, and perhaps most importantly, today it is my hope 
that when the FCC rescinds the title II Order, it will also 
reiterate that broadband Internet access is inherently an 
interstate service, which calls for exclusive Federal 
jurisdiction.
    The Commission should, therefore, preempt all State and 
local laws attempting to regulate broadband services, including 
those addressing privacy. Having a byzantine patchwork of state 
and local laws attempting to regulate the borderless and global 
Internet will wreak havoc on the digital economy, suffocate 
investment and innovation, confuse consumers, and encourage 
foreign governments and multilateral international bodies to 
respond in kind.
    Rescinding the title II Order with strong Federal 
preemption will simplify the regulatory landscape, provide 
certainty to all market players, and offer consumers one set of 
strong and clear Federal privacy protections administered by 
the one expert agency for privacy, the Federal Trade 
Commission. Thank you very much, and I look forward to your 
questions.
    Hon. McDowell's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-115-JU05-
Wstate-McDowellR-20171101.pdf.
    Mr. Marino. Thank you. We will now begin our 5 minutes of 
questioning, and the Chair recognizes the Chairman of the full 
Judiciary Committee, the gentleman from Virginia, Congressman 
Goodlatte.
    Chairman Goodlatte. Thank you very much, Mr. Chairman. 
Welcome to all of these panelists. I think you have given us 
excellent testimony. Mr. McDowell, let me start with you. In 
your testimony, you discussed the regulatory whiplash that has 
resulted from the 2015 Order. Can you elaborate on that 
description, and compare what impact an ex-post antitrust 
approach would have on innovation and the Internet?
    Mr. McDowell. What we mean by that is the ex-ante 
regulation can be translated in the vernacular as a mother-may-
I. So, if you look at popular service offerings, such as zero-
rating, consumers like zero-rating. It can benefit consumers. 
It can cost them less money for services and products.
    The FCC, initially, kind of gave a green light, or a 
cautious green light, that zero-rating was allowed under its 
2015 Order, and then immediately after that, started to pull 
back from that, and question it, and wanted to see case-by-case 
what each offering of zero-rating entailed, whether or not they 
did like it. And that started to inhibit the offering of a very 
popular service.
    So, that is part of the regulatory whiplash. And then, of 
course, we have this, you know, ping pong match that has gone 
on over the years throughout a large percentage of my career of 
the FCC issues an order, it goes up to the appellate courts, it 
comes back to the FCC, there is a surprise election, the FCC 
changes hands, there is going to be another order, maybe other 
appeals. And that is where I think it would be great for 
Congress to give some clarity, and ultimately, put this debate 
to rest.
    Chairman Goodlatte. Mr. Romano, you used the example of 
rural call incompletion in your testimony to describe how 
certain anticompetitive conduct could also occur with respect 
to rural broadband providers. Can you elaborate more on those 
fears?
    Mr. Romano. Thank you, Chairman Goodlatte. Yes. So, rural 
call completion, for those that are not familiar with it, is 
essentially this notion of where we have seen instances of 
calls failing to reach rural America, where consumers and 
businesses cannot receive their calls that are placed by urban 
consumers or businesses. We cite that as a concern of where we 
think that there is a need for some limited involvement by the 
FCC.
    We have seen that in the past, the FCC has been very 
effective in that specific instance of where you are talking 
about interconnection of networks being able to delve into the 
problem, figure out who the actors are in the space, and 
helping to resolve the concern, so that service is restored. We 
think that is an example of the right kind of regulation, the 
right targeted, limited regulation that is handled on an ex-
post basis, mind you, but allows somebody to jump in and be a 
cop on the beat, if you will, to address such concerns.
    Chairman Goodlatte. Thank you. Commissioner Ohlhausen, what 
improvements, if any, should be made to the antitrust laws to 
ensure an open and competitive Internet marketplace? Should 
some sort of antiblocking or throttling or prioritization 
standards, or even categorical bans, be enacted, in your view?
    Ms. Ohlhausen. One of the first improvements I would 
recommend is to get rid of the common carrier exemption that 
the FTC is subject to, because I think that does create a lack 
of clarity. Certainly, the Department of Justice can bring 
enforcement actions, but I would recommend that. And then 
secondly, I think the antitrust laws have been able to address 
these kinds of behaviors in other markets.
    And so, I would be interested in hearing further proposals 
about what kind of changes, you know, Congress thinks would be 
appropriate here. I certainly have been supportive of the idea 
of the transparency requirement that the Internet service 
providers are subjected to. I think that creates a very good 
baseline, so that they are at least clear to consumers about 
what traffic-shaping behavior they may be engaging in.
    Chairman Goodlatte. Thank you. And Commissioner McSweeny, 
critics of the antitrust law approach, such as yourself, assert 
that litigation can be expensive and that a resolution can take 
too long relative to the dispute at issue. However, how would 
you compare that to the expense of an FCC action or litigation 
under the Open Internet Order and the potential time it takes 
for the FCC or courts to reach a resolution under the order? Is 
not that going to be an equally long and expensive process?
    Ms. McSweeny. Thank you for the question. I think from my 
perspective, I am primarily concerned about the impact of 
relying on an after-the-fact enforcement approach, as it 
relates----
    Chairman Goodlatte. I think that is critically where you 
and I disagree. You think you know ahead of time what you need 
to do to protect consumers, and I think that the dramatic 
competition that takes place on the Internet and new ideas is 
much better to figure out what consumers want, and then, let 
them decide, rather than you tell us ahead of time, because I 
think as former-Commissioner McDowell has pointed out, that has 
already begun to have a distortive effect on what is available 
on the Internet.
    Ms. McSweeny. I think what is really challenging is for 
entrepreneurs on the edge: app developers, the people who are 
generating the enormous demand for all of the wonderful 
innovation flowing from the Internet. If they cannot reach 
their audience, and they have to pay multiple fees----
    Chairman Goodlatte. But they can.
    Ms. McSweeny [continuing]. In order to connect with them--
--
    Chairman Goodlatte. But they can and do.
    Ms. McSweeny [continuing]. Then they will not be able to 
scale. And there is no remedy for that available to them under 
antitrust law.
    Chairman Goodlatte. I get that. But they can, and they do. 
And there is just no evidence that what you are arguing is 
taking place.
    Ms. McSweeny. Well, they can, and they do because the 
status quo in the United States is an open Internet.
    Chairman Goodlatte. Right. But it has been based upon free 
and open competition, not based upon an order that they have to 
look at just as much as the telecom providers have to look at, 
in terms of what the rules of the road are. And that is really, 
in my opinion, the camel's nose under the tent in terms of what 
the FCC will do to regulate all aspects of the Internet, not 
just the broadband providers. Thank you, Mr. Chairman.
    Mr. Marino. Thank you. The Chair recognizes the gentleman 
from Michigan, Congressman Conyers, for his questions.
    Mr. Conyers. Thank you, Mr. Chairman. I want to begin by 
asking unanimous consent to enter into the record a letter from 
the National Association of Realtors, a statement from Anant 
Raut, a visiting fellow on behalf of public knowledge on net 
neutrality and the role of antitrust, a letter from Consumer 
Union to you, Mr. Chairman, and Ranking Member Cicilline, and 
finally, a statement of four sentences by our colleague, Frank 
Pallone.
    Mr. Marino. Without objection.
    These materials are made available at the Committee or on 
the Committee Repository at: http://docs.house.gov/meetings/JU/
JU05/20171101/106572/HHRG-115-JU05-20171101-SD003.pdf.
    Mr. Conyers. Thank you. Commissioner McSweeny, please could 
you discuss with us the limitations of antitrust law in 
enforcing net neutrality principles? That is why we are here.
    Ms. McSweeny. Yes. I think setting aside the jurisdictional 
question that we have been discussing about whether the FTC 
even has appropriate jurisdiction under its statute, there are 
some real challenges associated with relying on an antitrust 
enforcement approach because this conduct may be difficult to 
detect. The antitrust enforcement agencies may not have 
sufficient expertise in network management to fully understand 
certain types of conduct.
    And, of course, antitrust enforcement necessarily relies on 
a full investigation and approach that balances through the 
rule of reason analysis, both the harms but also the benefits 
of the activity and is focused primarily on economic values as 
opposed to noneconomic values, like speech and freedom of 
discourse.
    Finally, I think there is a real challenge associated with 
what remedies may be available. If you are an innovator on the 
edge, and you are seeking to connect to your audience, then you 
may have a really difficult time relying solely on antitrust 
laws as a remedy. If you can never afford to make all the 
payments that you need to make to get access to the customers 
in the first place, then antitrust law 5 years after that has 
happened is not going to be a very useful remedy for you.
    Mr. Conyers. Here is what Frank Pallone, our colleague, a 
Ranking Member on House's Energy and Commerce Committee said: 
``The FCC's current net neutrality protections provide the 
strongest protections for free speech and innovation online and 
have been upheld by the court. Keeping these rules in place is 
the fastest and surest way to protect consumers.
    Unfortunately, the FCC is working to undo these protections 
at the behest of a few large corporations. I urge my colleagues 
to stand united in defense of these protections. That is the 
best option to ensure an open Internet into the future.'' What 
do you think?
    Ms. McSweeny. I agree.
    Mr. Conyers. Okay. What effect would rescinding the Open 
Internet Order have on investment and innovation in the entire 
Internet market?
    Ms. McSweeny. I think that is a really important question, 
one that would require probably additional investigation, 
except there is an extensive record that the FCC has already 
relied on and that has been before the courts considering the 
order as well that really points to this virtuous cycle, this 
cycle of innovation that is incredibly important. It generates 
demand for investment in the infrastructure. It generates 
demand for all of the new services on the edge. And what we 
risk here is undermining all of the economics of that cycle and 
all of the innovation that is generated by it.
    Mr. Conyers. You know, some of have suggested that 
broadband providers do not have economic incentive to engage in 
discriminatory conduct because broadband markets are 
competitive, and consumers can switch easily among providers. 
What do you say?
    Ms. McSweeny. Well, most U.S. broadband markets are highly 
concentrated. Most consumers do not have a lot of choices when 
it comes to what providers to use.
    Mr. Conyers. That is true.
    Ms. McSweeny. And finally, we do have a very serious 
challenge, I think, when it comes to relying on competition to 
solve the problems that could be generated by very large 
vertically integrated firms that have an incentive to interfere 
with their competitors.
    Mr. Conyers. Thank you, commissioner. I yield back the 
balance of my time.
    Mr. Marino. Thank you. The Chair now recognizes the 
gentleman from Texas, Congressman Farenthold.
    Mr. Farenthold. Thank you very much. I want to start out 
with the troubling case in the court right now that we may rule 
that AT&T is a common carrier even for their Internet service, 
which would take away the FCC's jurisdiction. And I wanted to 
ask the members of our panel do you think Congress should act 
to remove that exemption or create specific exceptions or wait 
and see? We will start with Ms. Ohlhausen.
    Ms. Ohlhausen. The FTC on a unanimous bipartisan basis has 
long recommended that Congress remove common carrier exemption. 
So, I would continue to support the removal of that.
    Mr. Farenthold. And Mr. Romano.
    Mr. Romano. Yes. I think this is one of these areas where 
Congress could indeed help out and provide clarity with the 
statute.
    Mr. Farenthold. Ms. McSweeny, I know you are----
    Ms. McSweeny. I agree.
    Mr. Farenthold. All right.
    Mr. McDowell. Without speaking directly to that case, but 
yes, mobile broadband, in particular the common carrier 
exemption, should be eliminated.
    Mr. Farenthold. All right. Let's talk a little bit about 
rural broadband for a second. Mr. Romano, correct me if I am 
wrong: most rural broadband is delivered by independent folks. 
I mean, we do not have the big boys going out into the smaller 
counties.
    Mr. Romano. As I mentioned, our average employee base for 
our membership is about 25 employees.
    Mr. Farenthold. And do any of these companies generate 
massive content that they might want to prioritize over, you 
know, Netflix or Hulu?
    Mr. Romano. Not generally speaking. No, sir.
    Mr. Farenthold. All right. And so, while I have you, I am 
going to kind of jump around here, and I apologize for that. 
You talked in your testimony with Mr. Goodlatte about some of 
the interconnect issues and call completions. Are you seeing 
some of the interconnect issues also in broadband, or is it 
just primarily in the voice service?
    Mr. Romano. The call completion issue has been distinct to 
voice service, Congressman. The question that arises in our 
mind, though, is 10 years ago we would not have thought call 
completion would be an issue. We want to have somebody who can 
be some cop on the beat to jump in should that problem arise. 
We do not think, however, firm, hard, ex-ante rules are 
appropriate for this.
    Mr. Farenthold. But do not your rural broadband folks 
typically get their feed from fiber to go to some big pairing 
point somewhere? If that happens, could not they just switch to 
somebody else in that same pairing point and solve that?
    Mr. Romano. In many cases, Congressman, there may be 
multiple routes for interconnection; however, in other cases 
there are not, particularly in more rural States. It can be 
hard to--and distant, hundreds of miles away--to get to those 
interconnection points.
    Mr. Farenthold. All right. And Ms. McSweeny, you are kind 
of the lone pro net neutrality person on this panel. So, I want 
to visit with you for a second. I am concerned that if we adopt 
your pre-regulatory scheme that you are talking about, we 
actually make it harder for those innovators to get in because 
if you have got a new product that the regulations do not seem 
to contemplate, that is potentially a bar to entry too, is not 
it?
    Ms. McSweeny. Well, I think the innovators that I am 
worried about are generally innovators on the edge that are 
trying to enter the marketplace and connect with customers and 
scale very quickly. And, of course, they need to be able to do 
that without having to pay tolls to multiple companies.
    Mr. Farenthold. Who is that happening to now?
    Ms. McSweeny. Well, we have the Open Internet Order in 
place now. So, we are protecting them.
    Mr. Farenthold. Okay. Who was it happening to a year before 
the Open Internet Order?
    Ms. McSweeny. Well, again, I think the status quo of the 
United States has been the open Internet, which is why having 
rules to continue to protect it are very, very valuable.
    Mr. Farenthold. Are not the Open Internet Rules then just a 
solution looking for a problem?
    Ms. McSweeny. They are an important preservation of the 
pipeline for innovation to customers and the Internet. So, I 
think that they are very critical in preserving all of the 
innovation that we have enjoyed from having principles that 
protect the open Internet.
    Mr. Farenthold. All right. I want to go back to moving more 
of this over to the FCC, because a lot of the net neutrality 
rules deal specifically with who delivers the Internet to your 
house. And we have had some big discussions on privacy there.
    And if we move back to the FTC, the regulation is not just 
limited to say, as you will, the edge providers. You get the 
service providers too. I am as concerned about my ISP having my 
personally-identifiable private information as I am with Google 
and Facebook and any other place that I happen to order a pair 
of shorts from. So, why do we need to divvy this up between so 
many people? Mr. McDowell?
    Mr. McDowell. You raise an excellent point. Historically, 
the U.S. has had one expert agency to administer privacy 
regulation. That has been the Federal Trade Commission. It is a 
very complex issue. They have grappled with it beautifully. The 
FCC stumbled as it tried to implement that privacy order, and 
we need to revert jurisdiction back to the Federal Trade 
Commission.
    Mr. Farenthold. I wish I had time to give the other folks 
an opportunity to answer this, but I see my time is expired, 
Mr. Chairman.
    Mr. Marino. Thank you. The Chair recognizes the gentleman 
from Rhode Island, the Ranking Member of this Committee, 
Congressman Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman. I think at the 
outset, it is important to note that when the Chairman of the 
full Committee said, you know, ``Why is not it just up to 
consumers?'' It is important to note that 22 million people 
commented on net neutrality or an open Internet. And 
overwhelmingly, consumers said we want an open Internet and net 
neutrality and support the rule. So, if we want to listen to 
consumers that is a good beginning point.
    I would like to begin with Commissioner Ohlhausen. You said 
in your testimony that these noncompetitive actions of 
throttling and blocking, et cetera, can be cured when consumers 
identify it, and they can switch to a provider. So, I guess the 
first question I have is, is this really realistic that an 
individual consumer would be able to determine when a broadband 
provider is throttling, blocking, or prioritizing content, and 
then make this very frictionless transition to another provider 
in the absence of competition in many places in our country, 
and the inability for just an individual to know that?
    So, does not your model or your response imagine this kind 
of myth that an individual consumer has the ability to detect 
all this stuff? Is not that why that notion of competition 
being the framework that will prevent this from happening just 
does not work?
    Ms. Ohlhausen. So, Mr. Cicilline, the edge providers who 
are trying to transmit this content to consumers have an 
enormous interest in making sure that that content or services 
are delivered. So, these are not individual consumers. They are 
some of the most powerful, well-funded companies in the United 
States.
    And so, often when there have been complaints that their 
traffic is being degraded, that certainly has gotten a lot of 
attention. They have a lot of incentive and ability to do that. 
As for switching, one of the issues that we have seen is the 
enormous growth in wireless broadband access. So, I think that 
we need to include in the market wireless providers. And so, 
switching has become a lot easier.
    Mr. Cicilline. But to follow up on that, should consumers 
be forced to incur fees, delayed access to high-speed Internet, 
and the trouble of finding comparable broadband service, even 
if it exists, to remedy the harms of discriminatory conduct of 
broadband providers? Does not that shift the costs of this to 
the consumer?
    Ms. Ohlhausen. Well, the increased competition in the 
market, we have already seen that there are not fees for 
changing. Or if they are changing to a different provider, 
often that provider will pay the fees for them.
    Mr. Cicilline. Okay. Commissioner McSweeny, would you 
respond to that? Do you agree?
    Ms. McSweeny. Well, I do agree. I am very concerned that we 
are shifting an enormous amount of the cost of this onto 
consumers who are not well-positioned, as you point out, to 
detect most of this conduct, and very often may either have 
little choice or, in some cases, may be in contracts that 
require them to pay additional fees in order to make a change.
    So, I see these markets as highly concentrated. I am very 
concerned about relying on just consumer demand and competition 
that may or may not exist in order to generate the results that 
we are hoping to have by having the Open Internet Order.
    Mr. Cicilline. And Commissioner McSweeny, you said in your 
testimony something to the effect that broadband markets are 
highly concentrated and that competition alone will not provide 
the protection that I hope we all want. I am sure you heard the 
testimony of Commissioner Ohlhausen. I did not completely 
understand it, but the idea that we should look at competition, 
not just in terms of the way we look at competition normally, 
but some other analysis. Did that make any sense to you?
    Ms. McSweeny. Well, I think competition is a wonderful 
virtue. It is terrific in markets, but when we do not have very 
competitive markets, relying on an enforcement tool that is 
about preserving the competition or even trying to generate the 
competition can be a very imperfect tool. And that is why it is 
very well established that regulation is a complementary tool, 
as it is in this case, in order to ensure both the outcomes 
that we want, but also to make sure that consumers are 
protected and to make sure that noneconomic values, political 
discourse, freedom of speech, access to content, that kind of 
thing, are protected as well.
    Mr. Cicilline. Thank you. My final question is for 
Commissioner Ohlhausen. Do you believe that paid prioritization 
is a form of exclusionary conduct under the antitrust law?
    Ms. Ohlhausen. I think it can be, but it is not necessarily 
in every case. It depends on the market power and the ability 
of other competitors to get into the market. But paid 
prioritization is common in other markets outside of broadband, 
as well.
    Mr. Cicilline. And do you see any special danger of that 
being present in the Internet service provider sector?
    Ms. Ohlhausen. I think we need to examine each market very 
carefully, and my point about market competition is that we 
need to understand who all the competitors are in the 
marketplace to be able to make an accurate analysis of what the 
state of competition is in that market.
    Mr. Cicilline. Thank you. I yield back, Mr. Chairman.
    Mr. Marino. Thank you. The Chair now recognizes the 
gentleman from Colorado, Congressman Buck.
    Mr. Buck. Thank you, Mr. Chairman. Mr. McDowell, I noticed 
that you twitched earlier when the Ranking Member asked 
Commissioner McSweeny a question, and I just want to give you 
the opportunity to answer that question.
    Mr. McDowell. So, good thing I am not a poker player 
because, apparently, I have a terrible tell.
    Mr. Buck. So, let me ask the question, and then you can 
answer it. How does that sound? The question was, ``what is the 
effect of rescinding the Open Internet Regulations on 
investment and innovation of the Internet,'' and you seemed 
anxious to answer that. So, I just wanted to give you that 
opportunity.
    Mr. McDowell. Thank you. Yes. Actually, there are a number 
of studies out there showing an investment in broadband 
infrastructure has been deterred or stalled or slowed as a 
result of the 2015 title II Order. So, we saw robust investment 
and innovation throughout all corners of the Internet ecosphere 
before the 2015 Order. Whenever you introduce new rules in any 
context, investors have to first figure out what those rules 
are, and there is a pause at a minimum.
    As we start to approach the need to invest in 5G, which 
will be, by the way, a substitute for fixed wireline broadband. 
It will be 100 times faster than 4G, and the Internet of 
Things, as well, investment needed there are hundreds of 
billions of dollars. We need to rollback ex-ante mother-may-I 
regulations. So actually, investors the,--record at the FCC is 
replete with analyses from investors saying the best 
environment is the pre-2015 Order.
    Mr. Buck. Thank you. Chairman Ohlhausen, it is my 
understanding that a number of States have indicated that they 
intend to impose regulation on network ISPs if the FCC rolls 
back the title II provisions. What should or can Congress do in 
that situation? And then, I want to ask you what can the FCC 
do?
    Ms. Ohlhausen. Well, Congress certainly, if it were to take 
this up as a legislative matter, could ensure that the Federal 
legislation preempted State actions in this space.
    Mr. Buck. Okay. And what about the FCC?
    Ms. Ohlhausen. What the FCC could do? I believe the FCC has 
in other regulatory matters stated that it preempted State 
action in that space.
    Mr. Buck. Mr. Romano, I represent a rural area of Colorado. 
And I have visited with a number of citizens and leaders in 
that area, and they are very concerned about the lack of 
broadband in rural Colorado. One of the primary concerns is 
that it is very difficult to have economic development in areas 
that do not have broadband. What can we do? What should 
Congress do? What can the government do to try to encourage 
universal broadband?
    Mr. Romano. Thank you for the question, Congressman. You do 
represent a very rural area. I think we have 15 members just in 
your area alone, in eastern Colorado.
    Mr. Buck. I have heard from each of them.
    Mr. Romano. Us too. I would say three things. First of all, 
with respect to sort of the topic of this hearing, I think 
right size regulation, light-touch regulation is important. The 
effect on these companies, these small companies where they 
only have a handful of employees, of regulatory compliance 
costs can be significant on their operations, if not their 
investments. But just in managing the number of people they 
have to deal with and the kinds of markets they face, that is 
an important piece.
    A second piece would be looking more towards making sure 
that they can stay connected to urban markets; the 
interconnection issue I talked about. Making sure that the fact 
that they are far away from urban markets, that they can still 
get reasonably comparable broadband. That the costs of reaching 
those urban markets are taken care of or accounted for somehow, 
and what you have to charge a rural consumer is very important.
    And the third piece flows from that which is the universal 
service program. It is the best, most proven program ever put 
into place to promote rural networks which enable broadband. It 
is in a state of flux right now. Shoring up that program would 
do far more for rural broadband than any other proposal we have 
seen.
    Mr. Buck. And what can Congress do to shore up that 
program? Because the feedback that I am getting is that the 
reimbursement rates are decreasing, and that as a result of 
that, many of these rural providers are reluctant to expand the 
programs that they now have.
    Mr. Romano. That is spot on, Congressman. The fact is that 
we are at levels of investment or recovery under the Universal 
Service Program that track back to 2010. We are being asked to 
do more and more to invest in broadband deeper and deeper into 
rural areas. I think everybody wants that. It simply cannot be 
done for the same price we used to compensate for telephone 
networks ages and ages ago. We are asking these networks to do 
more, but yet these companies are facing right now on average a 
12 percent cut to their support because of the caps in that 
program. And it is undermining rural broadband investment and 
operations.
    Mr. Buck. My time is up. I thank you very much.
    Mr. Marino. Thank you. The Chair now recognizes the 
gentlewoman from the State of Washington, Congresswoman 
Jayapal.
    Ms. Jayapal. Thank you so much, Mr. Chairman. And thank you 
all for your testimony and for your service. The Internet 
should be free from discrimination against users and preserve 
choice and opportunity of communication for everyone. That is 
my basic belief. In my hometown of Seattle, believe it or not, 
my constituents still experience the consequences of a lack of 
competition among Internet providers.
    Even though we have six broadband providers, their coverage 
areas do not overlap, and result in slower speeds and higher 
prices for my constituents. So, the consequences of media 
consolidation loom large. And increasingly with entities which 
create content, also distributing content, I worry that full 
promise of greater choices and lower cost to consumers stands 
to be reversed.
    Can it be clearly said that companies that create and 
distribute content have a vested interest in ensuring that 
their consumers have access to their products first? We need to 
dig deeper into the realities of a world where as of a few 
years ago, just 2011, 90 percent of the American media was 
controlled by just half a dozen companies. Compare that to 
1983, when 90 percent was owned by 50 companies. And 
nationwide, 62 million Americans in urban areas and 16 million 
in rural areas cannot access fast Internet.
    And it is a serious issue, given how much the Internet is 
ingrained into our lives. More and more, you cannot apply for a 
job unless you have access to the Internet. You cannot pay 
bills or even check your kids' grades, as I found out when 
everything went online, in terms of checking what was going on 
with my son. So, it is clear that there is much work to be 
done, especially in light of ongoing efforts to undermine net 
neutrality.
    And so, while I am pleased that we are holding a hearing on 
this critical issue, I am simply not convinced yet that 
antitrust enforcement alone is sufficient to protect consumers. 
And particularly on noneconomic issues like free speech, on 
throttling, blocking, or prioritizing content, and of questions 
that, Ms. McSweeny, you raised in your testimony or your 
answers around prevention versus remedy.
    So, in the process that led up to the 2015 Internet Order 
and again this year, there was tremendous input from consumers 
to the FCC, civil rights groups, musicians, independent 
filmmakers, arts organizations, and many expressed concerns 
about free expression and viewpoint diversity. And yesterday, 
in The New York Times, comedian Kamau Bell wrote about the 
impact of net neutrality on artists. And I will just quote him.
    He says, ``This fair Internet, where everyone from an 
amateur comedian to a celebrity to a huge media company plays 
by the same rules, means you do not need a lot of money or the 
backing of someone with power to share your content with the 
world.'' Mr. Chairman, I ask unanimous consent to enter this 
op-ed into the record.
    Mr. Marino. Without objection.
    This material is available at the Committee or on the 
Committee Repository at: http://docs.house.gov/meetings/JU/
JU05/20171101/106572/HHRG-115-JU05-20171101-SD005.pdf.
    Ms. Jayapal. Thank you. Ms. McSweeny, since the FTC 
typically views such concerns as outside of its jurisdiction, 
how would antitrust law have to be expanded and modified to 
address those concerns?
    Ms. McSweeny. Well, I think one of the questions that I 
would ask about whether we wanted to expand antitrust law to 
reach noneconomic concerns would be whether we really want to 
take a set of tools that is designed to protect competition and 
consumers in the marketplace and expand it outward, especially 
when we have an expert regulator, the Federal Communications 
Commission, that already has expertise and a public interest 
mandate on this beat.
    So, I would argue that we can get the job done by using the 
tools the Federal Communication Commission has and by perhaps 
expanding and complementing the FCC's jurisdiction with the FTC 
as a backup. But I do not think it is necessary for this to be 
an either/or premise.
    So, yes, there are ways we could expand antitrust law that 
I think, in my view, would be very helpful in promoting 
competition; not just protecting net neutrality, but promoting 
competition generally in the marketplace and online as well. 
And it would be helpful maybe in protecting consumers, but we 
already have an expert agency with an extensive record that has 
proceeded in putting in place very clear rules to protect the 
open Internet.
    Ms. Jayapal. And Mr. Romano, in your testimony, in your 
written testimony, you seem to indicate that you do believe 
that there is some role for both the FTC and the FCC in 
regulation. And, in fact, if I read this correctly, you seem to 
be more concerned about who is being regulated rather than the 
regulation itself.
    So, you are asking for regulation around access of network 
providers. You are saying do not just put it all on the ISPs. 
Put it on the network providers for accessibility. But can you 
clarify? Do you support complete repeal of the 2015 Open 
Internet Order?
    Mr. Romano. It is hard to say, with respect to a 300-page 
order, that there is nothing in there that we like. However, 
what I would say is that the rules that were adopted in 2015--
and we're companies that have operated under title II for 
years, perhaps the most heavily regulated is local telephone 
companies historically. Although today, of course, they are 
broadband providers, primarily.
    The issue I think we have with the 2015 Order is more that 
it took title II, and it did not just take title II in a way 
that we were used to. It re-wrote some of the rules and 
frameworks in a way that no one was used to. So, for example, 
in the privacy space, the CPNI rules that were under the FCC's 
section 222 mandate in the Communications Act, we were used to 
operating under those as telephone companies, with respect to 
telecommunications information. The way in which those were 
rewritten to gather all sorts of information that not only 
telephone companies or broadband providers have, but also sweep 
in stuff that other people have, we just did not see that as 
being sort of a logical outgrowth of what title II had been.
    Ms. Jayapal. But to be clear, repealing the order 
completely would potentially have tremendous disastrous 
consequences for rural areas, and I think the point that Ms. 
McSweeny was making about competition, it is difficult 
sometimes to get competition to operate in rural areas and 
places where there are not as many consumers, where there is 
not as much money to be made. And so, I yield back, Mr. 
Chairman.
    But just wanted to say that I think there is a lot more 
nuance to this than simply repealing an order that would 
produce--than saying we should repeal the order, and it would 
produce benefits. I think there is great harm to be done. Thank 
you, Mr. Chairman. I yield back.
    Mr. Marino. Thank you. The Chair recognizes the gentlemen 
from Georgia, Congressman Collins.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate it. I 
think that was an interesting exchange, and I appreciate my 
friend from Washington in discussing that, because I think it 
really goes back into the role of what antitrust is and what 
antitrust is not. And I think Ms. McSweeny, that your answer 
there really sort of gave an interesting insight into why I 
think this Committee is so relevant, not only in this 
discussion, but other discussions that we can have in this 
because the question really becomes in a certain situation is 
what are we using antitrust for?
    Are we trying to go out of everything that FCC already 
currently can do, and are we trying to expand it? Or are we 
simply trying to look at it from a perspective. What the big 
debate has become is, what is this role of antitrust? Is it to 
solve all of these ills of big companies and little companies, 
or is to make sure that there is a level playing field, that 
there is access to markets, there is access to it, which is 
traditional antitrust?
    Just because someone is big does not mean that they are 
bad. And I think you can look at many companies coming from 
many different States that they are not acting in an antitrust 
violation. They are just large. They have made that precision. 
So, I think it is interesting for me this discussion, but I 
disagree. I am glad that it is looking to be rolled back, and I 
think that is a positive step in letting the trust side of it 
be dealt with.
    And I think we can have more hearings in this regard. But 
Chairman, I do have a question for you, madam, is, and we have 
talked about this before, but under the FCC's Open Internet 
Order, paid prioritization is prohibited, per se, in a sense. 
Would you consider paid prioritization to be vertical restraint 
in the context of antitrust law?
    Ms. Ohlhausen. Paid prioritization certainly is a vertical 
restraint, but that does not mean that it is anticompetitive or 
makes consumers or competition worse off.
    Mr. Collins. Okay. And I say how well situated would be, as 
the FTC, with dealing with strictly antitrust here, FTC to 
analyze vertical restraints and their impact on this in this 
environment?
    Ms. Ohlhausen. I think we are very well-positioned, and I 
actually want to bring the Committee's attention to recent 
cases that the FTC has brought against companies that have 
foreclosed rival content in a way that has hurt competition. 
So, we have the Realcomp case from 2009 and a recent case 
against 1-800 Contacts, which I will not say any more about, 
because it will be appealed to the Commission. But it is an 
area, foreclosing rival content in a way that is 
anticompetitive that we have brought action, and we certainly 
have the tools to continue.
    Mr. Collins. And when I think in expanding that out for a 
just minute, and I think I have heard from others, and I have 
read your opinions, what would be the long-term effects of ex-
ante or per se prohibition on this paid prioritization?
    Ms. Ohlhausen. My concern is that the long-term effects is 
to stifle innovation. We do not know what new technologies 
might be out there, and as we move to a world of the Internet 
of Things with so many connected devices, the ability to 
transmit some of that traffic in a way that has prioritization 
may be enormously beneficial when you think about things like 
connected cars or telemedicine.
    So, my concern is about freezing the Internet to the way 
that it looks today. And as we go back to the 2007 report, one 
of the biggest changes we have seen is the explosion of mobile 
Internet access.
    Mr. Collins. One of the things in following up on that 
really where we have gotten to in the Internet today has been 
because there has been that freedom. There has been that, you 
know, to work within a current system as we go forward.
    Ms. McSweeny, I just do have one question. It is my 
understanding that you have testified that you support the Open 
Internet Order as it is, correct? Including its ex-ante per se 
prohibition on paid prioritization, is that correct?
    Ms. McSweeny. Yes, that is correct. If I could just add, 
though, on this specialized services question, innovation 
around telemedicine and Internet of Things, that kind of thing, 
I believe--and I am not the FCC, so please ask them--but it has 
contemplated already in the Open Internet Order that waivers 
and such can be granted for that kind of innovation. So, I do 
not see this order as foreclosing that at all.
    Mr. Collins. Okay. If some are starting to maybe just going 
off this in a different aspect of the Internet ecosystem, from 
your perspective, would you support, you know, it is like 
including edge provider support in ex-ante regulation there is, 
as well as relying on market forces and antitrust enforcement. 
Would that be something?
    Ms. McSweeny. You know, I think it is a really interesting 
question. Many are arguing that the ISPs should have the same 
set of rules as edge technology companies, especially the very, 
very large platforms that are having a huge impact on the 
marketplace, but also in our daily lives. And I think one of 
the really important questions here is what are those impacts? 
How much power do those companies have? And if they are very 
powerful, like today's ISPs in the highly-concentrated 
broadband markets, then we should be having a conversation 
about whether our antitrust tools are sufficient.
    Mr. Collins. Well, I think that is going to become the 
honest question that we are having now, and unfortunately, I 
have seen this before, big bad, small good. We got to get out 
of that and go back to what antitrust is actually supposed to 
look like.
    But I cannot let this go, Mr. Chairman, without also saying 
for those of us in rural areas, northeast Georgia for mine, 
when you have players who are supposed to be providing 
broadband access, and they are not. They are using their CAT 
funds and other things to do other things such as they are in 
my area, this is just, you know, prohibiting it out. That is 
why we are looking at other acts of the GO Act and other things 
to actually provide broadband services to rural areas and get 
competition into the marketplace. And with that, Mr. Chairman, 
I yield back.
    Mr. Marino. Thank you. The Chair recognizes the gentleman 
from Georgia, Congressman Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman. Do any of 
you or do all of you support the concept of an open Internet 
and the principles of no blocking, no throttling, and no paid 
prioritization? Do you all support that concept? Ms. Ohlhausen, 
yes or no?
    Ms. Ohlhausen. I support an open Internet, but I would not 
support a per se prohibition on paid----
    Mr. Johnson of Georgia. Ms. McSweeny.
    Ms. McSweeny. I support the open Internet as contemplated 
in the 2015 Open Internet Order.
    Mr. Johnson of Georgia. All right. And Mr. McDowell?
    Mr. McDowell. I support an open Internet, but it also 
depends for each of those. For instance, blocking of a child 
porn site. That should be allowed, right?
    Mr. Johnson of Georgia. Well, it is already allowed under 
the 2015 Order. Is it not?
    Mr. McDowell. There are many exceptions. I just wanted to 
make sure that we talked about exceptions, and each of those 
are important.
    Mr. Johnson of Georgia. Well, yeah, of course, subject to 
those exceptions. So, you support, Mr. McDowell, principles of 
no blocking, no throttling, no paid prioritization?
    Mr. McDowell. All those can have benefits. So, paid 
prioritization----
    Mr. Johnson of Georgia. Yes or no?
    Mr. McDowell. By the way, paid prioritization in the 
context of title II, there is a myth out there that title II 
would prohibit that. Actually, title II----
    Mr. Johnson of Georgia. It is a real simple question.
    Mr. McDowell [continuing]. Permits paid prioritization. 
Actually, it gets very complicated very quickly.
    Mr. Johnson of Georgia. Well, I understand. Okay. You do 
not want to answer yes or no to the question.
    Mr. McDowell. Because it is complicated and nuanced.
    Mr. Johnson of Georgia. Well, Mr. Romano and Ms. Ohlhausen 
were quite clear, and I was just wanting to----
    Mr. McDowell. Well, they are looking at it through the 
antitrust lens, and I am looking at it through the FCC lens.
    Mr. Johnson of Georgia. All right. Well, let me ask this 
question. Do you believe, Mr. McDowell, that in order for there 
to be an open Internet----and I am just going to assume for 
purposes of this question that you do support an open Internet.
    Mr. McDowell. Absolutely.
    Mr. Johnson of Georgia. Do you believe that there should be 
rules or regulations or legislation that guarantees that 
concept?
    Mr. McDowell. I would love to see Congress in this debate, 
this back and forth, and pass new legislation that could 
support an open Internet and where we would have a win-win-win 
situation for all the players involved. Yes, sir.
    Mr. Johnson of Georgia. What about you, Ms. Ohlhausen?
    Ms. Ohlhausen. Well, I really think it depends on what that 
legislation looks like, but I certainly would be, you know, 
encouraged by Congress taking this on as an issue and opening 
it up to further debate.
    Mr. Johnson of Georgia. Do you think Congress would be 
better equipped to deal with this issue than would the FCC or 
the FTC?
    Ms. Ohlhausen. I think it depends on what the legislation 
looked like, because I would hope it would contemplate a 
continuing role for the FTC going forward.
    Mr. Johnson of Georgia. I see. Okay. Thank you. What about 
you Mr. Romano?
    Mr. Romano. I think the term, Congressman, that I used in 
my testimony was regulatory pendulum swinging, and to the 
extent that Congress could help bring an end to that, I think 
that all involved would benefit greatly. The details of the 
legislation are important, but to the extent that something 
authoritative that assigns divisions of labor in the right way 
to the respective agencies based upon informed judgement of 
this body, I think would be welcomed.
    Mr. Johnson of Georgia. Ms. McSweeny, what is your 
response?
    Ms. McSweeny. Well, I support the 2015 FCC Open Internet 
Order, so I would want to look very carefully at what was being 
proposed. I think there are ways to strengthen the FTC that 
would be helpful. But so far, the action that we have seen in 
this Congress has been harmful to consumers. The repeal of the 
Broadband Privacy Rule, in my view, was very harmful to 
consumers, because it eliminated the consumer choice around how 
their information is monetized and used. And we do not have 
current authority at the FTC to step in and protect consumers.
    So, I would want to look very carefully at whatever was 
proposed, and make sure that we were appropriately protecting 
the open Internet and consumers and competition.
    Mr. Johnson of Georgia. Mr. McDowell, your response to Ms. 
McSweeny?
    Mr. McDowell. Thank you. So, first of all, the FCC's 
privacy rules never went into effect. While broadband is still 
classified as a telecom service, which as of this moment, it 
still is, section 222 of the FCC's rules apply. But the best 
way to get consumer privacy protection is to get the best cop 
on the beat on privacy, the Federal Trade Commission, back on 
the beat. And that would be to return it to its information 
service categorization.
    Mr. Johnson of Georgia. So, you believe the FTC is better 
equipped to deal with this issue of open Internet than would be 
the FCC?
    Mr. McDowell. Privacy and the open Internet. These are 
competitive issues, inherently. These are section 5 issues, 
inherently.
    Mr. Johnson of Georgia. Ms. McSweeny, do you see it that 
way?
    Ms. McSweeny. I do not because I think, as we have been 
discussing, there is an expert agency, the Federal 
Communications Commission, that is protecting both consumers 
and competition and the open Internet with its authorities, and 
it should be doing that. The FTC is a generalist antitrust and 
consumer protection enforcer.
    And yes, we are very good at trying to bring cases to 
protect consumers' privacy, but we have on a bipartisan basis 
for years requested additional authorities to better secure 
consumer data. I think that is necessary, and I think there is 
nothing that forecloses an expert regulator like the FCC using 
its authorities to also protect consumers' privacy.
    I do not hear Americans out there thinking they need less 
protection from exploitation of their information. I hear them 
asking for more.
    Mr. Johnson of Georgia. Thank you, and I yield back.
    Mr. Marino. Thank you. The Chair now recognizes the 
gentleman from Texas, Congressman Ratcliffe.
    Mr. Ratcliffe. Thank you, Mr. Chairman. As I have listened 
to the testimony and the questions today, it strikes me that I 
think this hearing is emblematic of the larger ideological 
debate between those that believe in a blanket one-size-fits-
all approach to regulation and commerce, versus those that 
believe that a free market buffeted by reasonable antitrust 
protections provides a better framework and better access for 
consumers.
    I certainly fall into the free market camp, because I think 
even if it is well-intentioned, the overly zealous approach of 
regulatory overreach often just equates to a solution in search 
of a problem.
    And so, to that point, I want to start with you, 
Commissioner McSweeny, because in 2007, the FTC issued a report 
that said and concluded that antitrust laws were sufficient to 
protect against anticompetitive actions on the Internet and 
also concluded that additional regulations would likely do more 
harm than good. So, my question to you is what has changed 
since 2007?
    Ms. McSweeny. Well, a lot has changed since 2007. That was 
a decade ago. The technology was wildly different. iPhones were 
relatively new. I think I got my first iPhone in 2008.
    Maybe I was not an early adopter, but I think what we are 
talking about here 10 years later is still a highly-dynamic, 
very innovative ecosystem that is rapidly changing, but that 
has relied fundamentally on the principles that are enshrined 
in the FCC's order. We have been aggressively trying to protect 
that pipeline of innovation for more than a decade, as I am 
sure Mr. McDowell can talk about.
    Mr. Ratcliffe. I appreciate that. Let me reclaim my time on 
that. I want to give Ms. Ohlhausen a chance to respond to that 
line of thinking, with respect to the FCC's conclusions in 
2007.
    Ms. Ohlhausen. What I have seen change from 2007 to now is 
in quite a shift towards greater competition in these markets. 
So, wireless broadband providers now provide speeds greater 
than what wired broadband providers provided in 2007. We have 
four wireless broadband providers nationally. I mentioned 
improving speeds. We have seen this expansion of mobile 
broadband and vigorous pricing competition. So, competition has 
grown since that time period.
    Mr. Ratcliffe. Terrific. Thank you. Mr. McDowell, 
Congressman Buck had a number of questions to you about rolling 
back title II provisions, and I read with interest your 
testimony about the Internet, calling it the greatest 
deregulatory success story of all time. And I agree with you 
that a light-touch regulatory framework is the ideal approach 
to any dynamic industry. And I certainly see the 2015 FCC Order 
as rolling back that longstanding approach.
    I am curious what your perspectives are. If the FCC had 
imposed that sweeping net neutrality order back in the 1990s, 
what do you think Internet access and connectivity would look 
like today? In other words, would it be safe to say that costs 
would largely be higher, and access to connectivity would 
largely be reduced?
    Mr. McDowell. So, I am sorry. Just to make sure I 
understand your question: you talked about net neutrality order 
from the 1990s. Do you mean in terms of treating broadband or 
Internet access back in the 1990s under the Clinton-Gore 
administration? Okay.
    So, that was the continuation of many proceedings among 
both Republican and Democratic administrations to treat 
information services, essentially computer-to-computer 
communications, as something called an information service or 
an enhanced service back in the day. And that would not be 
common carriage under title II.
    So, that set the stage, when the Internet was privatized in 
the mid-1990s--when it migrated further away from government 
control--that set the stage for, I think, the largest explosion 
of entrepreneurial brilliance in world history in all corners 
of the Internet ecosphere. And it was led right here in the 
United States of America.
    This was an American phenomenon, which spread throughout 
the world. So, that is what we want to preserve. That is the 
openness and the pro-competition, the pro-investment, the pro-
innovation and ultimately, the pro-consumer environment that we 
want to revert back to.
    Mr. Ratcliffe. Terrific. Thank you. My time is about to 
expire, but Mr. Romano, I did want to ask you. You know, you 
raised concerns about the FCC's Open Internet Order as singling 
out retail broadband providers with which you called ill-
fitting regulations and one-sided duties. Regarding the one-
sided duties that were imposed on retail Internet service 
providers, can you elaborate for me and for everyone how this 
has affected small and rural providers because as you know, 
that is a big part of my district?
    Mr. Romano. Absolutely, Congressman. Thank you for the 
question. So, a couple of things do jump to mind. Immediately 
first is the privacy regulation we talked about earlier, which 
was poised to take effect and would have put our small 
companies serving very rural areas in the position of having 
greater protections with respect to the same data that some of 
the largest edge providers in the world hold. And they would 
have been subject to different rules and that whatever the 
rules are that need to be put into place to govern that data, 
we wanted the same rules put into place to govern everybody who 
holds that data.
    That has an impact, obviously, on their operations in the 
sense that they have to take additional steps, practices, 
procedures to put into place to comply with the new privacy 
rules that were different than even the telecom privacy rules 
in place before it.
    Mr. Ratcliffe. Thank you. Mr. Chairman, I appreciate the 
indulgence. I yield back.
    Mr. Marino. Thank you. The Chair now recognizes the 
gentleman from California, Congressman Issa.
    Mr. Issa. Thank you, Mr. Chairman. I am sorry the 
gentlelady from Washington State has left, because it seemed 
like Seattle is a bastion of no communication choices that 
apparently Amazon and Microsoft are unable to generate enough 
bandwidth in that area to quite an underserved area. But having 
said that, I would like to concentrate on an assumption of 
monopoly for a moment. We were talking earlier, quite a while 
earlier, about getting rid of the common carrier exemption.
    And I will start, and I will go down the road quickly, 
because I know this is probably an area that unites us. If we 
could not eliminate it completely, would it do a great service 
to bifurcate the exemption? In other words, as a common 
carrier, you are still excluded. But to the extent that you 
provide any products or glean any economic benefit other than 
as a common carrier--for example, you own part of some other 
content supplier and the like--that you would automatically not 
be covered by the exemption. Would that do most of the good you 
need to deal with?
    Ms. Ohlhausen. It would take care of some of it, but not 
all of it. But it still leaves open the possibility that the 
FCC could classify wide swaths of the communications network as 
a common carrier service and cut the FTC out of oversight.
    Mr. Issa. Okay. So, your concern is to the extent that you 
would be cut out. So, legislation should be such that you not 
be precluded from doing in one section of the communication 
delivery system what you would be able to do in another?
    Ms. Ohlhausen. That is correct, and it is particularly 
acute for consumer protection, because at least the Department 
of Justice, which also shares antitrust oversight, is not 
subject to the common carrier----
    Mr. Issa. And you often do a one-two with the Department of 
Justice?
    Ms. Ohlhausen. That is correct.
    Mr. Issa. Is that pretty much within an answer for all that 
that limitation is to? Well, go ahead, Ms. McSweeny.
    Ms. McSweeny. I would support a clean repeal of the common 
carrier----
    Mr. Issa. No, I understand that you would like to have 
potentially a clean repeal. I am saying that it is pretty clear 
that when people are complaining, let's say, about Comcast, 
Cox, whoever it happens to be, they are always talking about 
not--and I am going to get to the other part in a moment--the 
throttling or the prioritization only, which I know you are. 
But they are complaining particularly about their products and 
services, which may be prioritized. That has been a big part of 
the discussion.
    Certainly, I will go to Mr. McDowell. It was something that 
was justifying the FCC's action was the theory that it was 
their products and services that were being prioritized over 
somebody else's in an anticompetitive way. Would that be fair?
    Mr. McDowell. Yes. I think your question is very 
intriguing, all the questions embedded there, because what you 
are putting your finger on is convergence in the marketplace. 
So, we have tech companies and communications companies, 
wireless companies, and telecom companies, all with thousands 
of miles of fiber, using radio frequencies, connecting servers 
and routers all over the country, all over the world, that are 
flooded with a slurry of ones and zeros.
    And I have just described a plethora of business plans 
here. But these old statutes, especially the Communications Act 
from 1934, tries to impose these silos, these regulatory silos, 
depending upon the flavor of the moment or who is politically 
favored or not. And that is why precisely, I think Congress 
needs to act.
    Mr. Issa. Well then, and Commissioner Ohlhausen, let me 
take something that is within your purview and compare it to 
the discussion of the day. If you are in a small town, and 
Safeway is the only grocery store, within Safeway, they have 
decided that each endcap, each row, is going to be sold to 
whoever will pay the most: Pepsi, Coke, whoever. That is 
certainly a prioritization that is paid for in a, in this case, 
an exclusive opportunity to buy within, let's say, 50 miles. 
Would you see that as something where you would come in under 
antitrust?
    Ms. Ohlhausen. It really depends.
    Mr. Issa. But it happens every day in America, and you do 
not come in.
    Ms. Ohlhausen. Exactly. It is very common. Paid 
prioritization is extremely common through all markets through 
the economy.
    Mr. Issa. Okay. So, the test, and you said depends, and I 
think this is important, and I want give Ms. McSweeny an 
opportunity for this sort of a discussion. Paid prioritization 
is an economic model that actually allows other people down the 
road to get a different price. The same would be true of a 
newspaper or magazine. They sell locations in their magazines 
at premium. The back cover is not randomly selected. It is paid 
for as a premium. And within that market, the relevant market, 
if you will, of a magazine, the magazine has 100 percent market 
share. So, every day, buyers and sellers make these decisions, 
and as long as you do not see an unfair monopolistic--in other 
words, they do not pass the other tests that exist under 
antitrust--we look at those and say that particular behavior is 
okay in this example. Correct?
    Ms. Ohlhausen. Absolutely correct.
    Mr. Issa. So, Ms. McSweeny, you obviously have a little bit 
more of a command and control. You would like to cure all the 
evils of society through these various regulatory processes, 
including that everyone should come for an exemption if they 
somehow have a medical device that needs a priority and hope 
that the government will give it to them. And I am not trying 
to be snide, but that is what I heard you say.
    So, listening to the Chairwoman, is not it true that, in 
fact, we do have to recognize that the provisions of antitrust 
over the many decades have been the abuse of these otherwise 
available privileges, such as prioritization and so on of one's 
product, and that what you have proposed--which is that you go 
to government when you want to have an exception, rather than 
you do your business and a series of tests--will determine 
whether or not you have crossed the line, not just based on a 
behavior but based on market share and intent. Correct?
    Ms. McSweeny. Well, here is the difference. It is very well 
established in antitrust law, and there is bipartisan support 
for this, that when we have highly concentrated industries, 
especially when there is vertical integration of the 
incumbents, that clear ex-ante rules to prohibit certain 
conduct is required.
    So, for example, my agency just earlier this year sent a 
very nice comment to FRT, which looks at this in energy 
generation markets supporting clear ex-ante rules because 
simply relying on antitrust enforcement is not sufficient. So, 
I do not think it is a controversial concept when you are 
dealing with this kind of question to have an antitrust 
enforcement agency say, ``Look, there are limitation to how we 
can step in here.''
    Mr. Issa. Since I am last, I would like to let the 
Chairwoman respond because I think that although what Ms. 
McSweeny is saying is true, is not it true that, in fact, 
giving over to the FCC, as the last administration did, they 
actually preempted you. It was not like you were saying your 
regulations are complementary. What they really said was to the 
Federal Trade Commission and to a certain extent Department of 
Justice, ``You sit on the sidelines. We are going to determine 
winners and losers, and they have to come to us for permission 
if they need a private network or they need prioritization for 
anything, including a lifesaving procedure.'' Is not that true?
    Ms. McSweeny. Indeed. In fact, the Open Internet Order 
stated that competition in the marketplace, even if there was 
competition in the marketplace, that was not going to be 
sufficient. I also just want to mention that electricity 
networks are very much a unique case, right, where you have a 
true, natural monopoly. They are a monopoly provider. I would 
point the Committee's attention to the FTC's staff report from 
2007 that looked at this particular market and said that 
competition and antitrust law and consumer protection were the 
appropriate tools.
    Mr. Issa. Thank you. Thank you, Mr. Chairman.
    Mr. Marino. Thank you. This concludes today's hearing. I 
want to thank all the witnesses for attending. And without 
objection, all members will have 5 legislative days to submit 
additional written questions for the record and submit 
additional materials for the record as well. Thank you very 
much.
    [Whereupon, at 12:21 p.m., the Subcommittee adjourned.]
    
    
    
    
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