Protecting the Freedom to Compete by Reforming Competition Law

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PK has already blogged about Senator Wyden's speech at CES yesterday, where he outlines an ambitious and pro-competition digital agenda. The speech touches on a number of Internet, copyright, patent, and telecommunications policy ideas. One theme that unites many of them is the need to update the law to match the digital economy. This is as true for broadband policy as it is for copyright.

As the Senator noted, "t is clear that consumers across this country would stand to benefit if there were more competition among Internet Service Providers." He then notes how he is working with Senator Franken to clarify, with legislation, that antitrust laws apply to ISPs--an ISP that tries to use its dominant control over the last-mile connection to a user to pick winners and losers online should be seen as acting unlawfully. This is an appropriate response to a concentrated market where the status of antitrust law is unclear.

The speech also touched on another threat to online innovation--data caps. Michael addressed this aspect of the Senator's speech yesterday, but I'd like to note that there, as with the antitrust issue, he called for specific legislation.

New legislation to address these aspects of telecommunications policy and clarify the FCC's authority over broadband would be very useful. While the FCC has enacted Open Internet rules with existing authority, those rules are being challenged in court and could be thrown out or weakened. But even apart from this issue, the FCC keeps running into problems when it tries to craft broadband policies under existing law. For instance, universal service programs--which try to make sure that all Americans can access vital communications services--are still largely tied to traditional voice services, with broadband tacked on. To be sure, the FCC could avoid many of these problems by recognizing that broadband itself is a telecommunications service just like voice, and covered by many existing laws the the FCC today is hesitant to apply. But proponents of a free and open Internet need to have their own plan for revisiting our basic telecommunications policies, which don't always apply neatly to the market today. After all, AT&T does.

With clearer statutory authority over broadband, policymakers might be able to go beyond simply reacting to a concentrated market using tools like net neutrality rules and antitrust, and start taking steps to increase broadband competition. While Open Internet and antitrust principles will always have their place in protecting Internet users, many of the arguments that plague this space could go away if it's easier for users to switch away from a provider that is acting poorly.

Finally, it's sobering to bear in mind that ISP competition by itself is not necessarily enough to jumpstart all forms of online competition. Take video, for instance--even if you remove any barriers created by ISPs, other obstacles remain. Outdated copyright laws, a concentrated content market, and restrictive licensing practices could keep that market from achieving its full potential. While data caps certainly restrict video competition, it would be shortsighted to overlook the difficulty that even giant companies like Intel and Apple have run into in trying to sign content deals. This is why it's great to see a politician like Senator Wyden recognizing that protecting the Freedom to Compete requires a comprehensive look at different parts of the digital economy and how they fit together, and recognizing that broadband competition should be addressed alongside copyright, patent, cybersecurity, and trade issues. These disparate issues are all part of protecting Internet users and online competition.

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