Use antitrust laws, not regulations to protect the Internet

The Internet’s rapid expansion to nearly every American home provides an engine of economic growth and a platform for a robust exchange of commerce and ideas. This unprecedented growth occurred in a competitive environment unburdened by new regulation. Leaders behind the Internet trailblazed uncharted territory with the freedom necessary to experiment and to grow.

As chairman of the House Judiciary Committee and co-chairman of the Congressional Internet Caucus, I am committed to promoting an open Internet marketplace where ideas, innovation and competition flourish, an Internet where consumers and their choices are protected, where businesses compete with one another fairly and where a system of checks and balances is rigorously applied to keep the Internet free.

Lately some have argued that the future of the Internet is at stake under the threat of anticompetitive forces. Under the banner of net neutrality, they advocate that additional regulation of the Internet marketplace is necessary to protect consumers, promote innovation and encourage competition.

While we certainly should not stand by and allow companies to engage in discriminatory or anticompetitive behavior, I do not think that regulation is the answer. Regulation generally stifles rather than stimulates innovation. Instead, what we need is a way to directly punish bad actors who engage in anti-competitive or discriminatory activity.

Earlier this summer, the House Judiciary Committee conducted a hearing to examine the principles of net neutrality and how to best protect consumers and innovation on the Internet. A commissioner of the Federal Trade Commission and a former commissioner of the Federal Communications Commission both testified at the hearing that antitrust laws, rather than regulations, are better suited to protect the Internet from anticompetitive and discriminatory conduct when it occurs.

The witnesses cited examples of when regulation did not prove to be a successful solution in other industries. One such example was during the development of railroad and long-distance telephone networks. Regulations were not effective at preventing anticompetitive conduct, and ultimately, antitrust law was the remedy that promoted competition in the long-distance telephone market.

Likewise in our modern high-growth industry of the Internet, rigorous enforcement of our nation’s antitrust laws can prevent dominant Internet service providers from discriminating against competitors’ content or engaging in anticompetitive pricing. Courts can use antitrust laws to prosecute bad actors who violate these laws as they occur. These laws can be applied uniformly to all in the Internet marketplace — not just to Internet service providers — to ensure that prosecution of improper behavior is fairly administered. Focusing regulations on one area of the Internet opens the door to regulating all sectors of the Internet, an outcome that could prove disastrous to the growth of an open Internet.

Strong antitrust enforcement is superior to regulation of the Internet for a number of reasons. Antitrust law and the standards applied by courts have been developed and refined over decades. In comparison, new regulations contain untested definitions and standards, which would be interpreted and enforced by a constantly rotating commission.

Antitrust law governs the conduct of all participants in the Internet marketplace uniformly. Regulations would only apply to a select group of entities. 

Antitrust law prosecutes conduct once it occurs on a case-by-case basis and it determines whether parties actually engaged in improper conduct. Regulation is a “one-size-fits-all” approach that creates a burden on everyone regardless of whether they are acting unlawfully. And consumers often ultimately bear the cost of this regulation.

We simply do not have space for well-intentioned but misguided regulation that could suppress future growth and investment in the Internet or harm consumers. In addition, the two federal agencies that enforce our nation’s antitrust laws, the Department of Justice and the Federal Trade Commission, have both independently issued statements indicating their own preference for the use of antitrust laws over regulation of the Internet.

Through the committee’s examination of how to best protect consumers and competition on the Internet, we have found that the principles of net neutrality can be best achieved through the vigorous application of antitrust laws. Instead of turning to regulation that has failed in the past, we should pivot to our nation’s time-tested antitrust laws that protect consumers and the Internet marketplace from improper and anticompetitive behavior. If these laws need updates, we should make them.

As the Internet expands its footprint, the House Judiciary Committee will continue to pursue initiatives that protect an open Internet and ensure that the Internet continues to be free and flourish.

Goodlatte has represented Virginia’s 6th Congressional District since 1993. He is chairman of the Judiciary Committee and also sits on the Agriculture Committee.