In a curious ex parte filing, the Department of Justice has cautioned the FCC against adopting any form of net neutrality regulations. DOJ says that there is a paucity of evidence to warrant such regulations and that they could, moreover, actually deter and delay investment and innovation.
If broadband providers were to charge third-party content and application providers fees for priority service, that could, in some circumstances, actually enhance consumer welfare, Justice argues. Differentiating service levels and pricing could be an efficient way of allocating scarce resources, much the way the U.S. Postal Service charges different fees depending on the speed of delivery.
If anti-competitive issues do arise, DOJ will take steps to address the problems. The Department will continue to monitor developments and take enforcement action, if necessary.
What’s curious about the filing is that, first, it’s an ex parte, or late, submission in the FCC’s Inquiry on Broadband Practices, most commonly known as the FCC’s net neutrality proceeding. DOJ could have filed comments along with the rest of the world by July 16, the deadline for all submissions, but it didn’t. Why DOJ waited until now is an interesting, probably unanswerable question.
Secondly, the Justice Department issued a press release to announce the ex parte filing, which just seems…a little weird, given the nature of the filing. It feels almost like a PR move, or a public political positioning, and is not in keeping with the kind of dry, legalistic press releases DOJ usually issues (“Fujicolor Processing Pleads Guilty to Environmental Crime,” “Missouri Federal Court Permanently Bars Woman From Tax Return Preparation,” “Landmark Settlement Aims to Clean Up Raw Sewage Discharges in Allegheny County”).
So, the DOJ is arguably playing politics, not unsurprising in Washington, but not the usual behavior of the normally staid Antitrust Division of the Justice Department. The document, too, doesn’t read like the usual antitrust analysis. There is little dispassionate weighing of the arguments or rigorous analysis of the facts (a lot of facts are presented regarding how the Internet is flourishing without net neutrality but no real weighing of the arguments and data).
It’s possible that the inherently free-market thinkers that typically populate the antitrust division find the imposition of regulations in the absence of any evidence of market harm so loathsome that DOJ feels it necessary to skip all the tedious intellectual back-and-forth. That’s understandable, but somewhat disappointing.
No matter what DOJ’s motive is, public interest groups have jumped on the filing to counter the the department’s arguments. Even if there is no evidence of wrongdoing in the absence of regulations, the broadband service market is not competitive and therefore the DOJ missed the boat, the Open Internet Coalition said in a statement.
This lack of competition and consumer choice for broadband access is the reason why the Open Internet Coalition supports preemptive safeguards to ensure that cable and telephone companies do not destroy the Internet as we know it.
Cynthia Brumfield at 3:01 PM|Comments(0)
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