Market-Based Approach to Rules and Technology Sought by FCC, FTC, NTIA and OSTP Officials

The FCC and FTC’s policy approaches differ a bit because the Communications Act applies different rules to various networks for the FCC, while antitrust law is inherently more technology-neutral, said commissioners from both. At the NTIA, “not being a regulator, we take a more holistic approach,” Strickling said. The push by the Office of Science and Technology Policy to reallocate spectrum for wireless broadband isn’t based on how consumers will use the frequencies, said OSTP’s Tom Power.

Communications law isn’t “written from the consumer’s perspective, but about what your network is as a network operator,” said FCC Commissioner Robert McDowell. “I think we need to start looking at it from a consumer’s perspective. What are the bottlenecks, is there consumer harm, rather than what’s the technology you use to deliver that content,” he said. “As usual, government is behind market developments."

Power echoed the view of government lag. “We do have a statute that organizes things a certain way. And I think the tough call for all of us is responding to these changes” in technology, said Power, the OSTP deputy chief technology officer for telecom. “We're always trying to catch up … with technology just rushing ahead.” For the spectrum he’s trying to reallocate, “what people are doing with it, it starts to blur, it starts not to matter” what the use is intended for when setting policy, Power said. “Bits are bits.” Any change of policy focus to one based on factors across similar services on different platforms ought to come with keeping in mind “folks who have relied on the status quo” in making business decisions, he said.

The NTIA has “really tried to focus on the Internet, and what we do to protect it” and people’s “trust,” which informs the agency’s work on cybersecurity and privacy, Strickling said. He cited the stakeholder approach recommended in the NTIA’s recent report on privacy. It envisions “a single enterprise or single organism that we are trying to make sure that we are creating policies for that that will work at any level for anyone in this process,” Strickling said. The privacy law the report recommended Congress pass can be limited to just the seven points NTIA sought, he said. “Of course, that’s not how Congress has legislated” for many years, Strickling said. Regulation can “take forever,” but voluntary privacy codes of conduct the report wants from industry could be enforceable once a company adopts it, with “strong enforcement by the Federal Trade Commission,” he said.

As an antitrust agency, “it’s very important to look at these markets from a consumer point of view,” said FTC Commissioner Maureen Ohlhausen. “The antitrust laws don’t really approach it in a siloed way, the way a regulator might, it’s very much based on what’s in a market,” the Republican said. “If consumers are seeing many, many off-routes in a market, that’s a good thing” and something an antitrust analysis “would need to take into account,” Ohlhausen said. The agency “over a number of years has established” a vigorous privacy enforcement program, and codes of conduct for companies “as they're thinking about designing products, right from the beginning” is a good idea, she said.

"We don’t want to think about the activities of any one type of player and what they're engaged in without also thinking of the activities of other players” that can sell a similar product, said Democratic FTC Commissioner Julie Brill. She cited the “deep tracking” that can be done by social media and websites. “We need to take a step back and look at how is it these large platform providers are engaged in similar activity, and what should we be doing across the platforms to make sure that consumers are protected.” The FTC plans a workshop in this year’s second half on how to take a market-based approach, Brill said. “We do want to look at” some issues “holistically,” she said.