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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
safety communications arising from the Restoring Internet Freedom Order or from the two-decade history of lighttouch regulation of the internet. We then review assertions regarding specific forms of possible harm to public safety communications blocking, throttling, loss or delay due to paid prioritization, barriers to communications by individuals with disabilities, and damage to the safety and reliability of critical infrastructureand conclude that the record reflects insufficient evidence of such harms as a result of the Restoring Internet Freedom Order or that such harms are likely to arise. Finally, we conclude that even if a harm to public safety communication were to somehow arise from the Restoring Internet Freedom Order, its impact would be limited because broadband internet access service, while important, is only a part of the broader public safety communications ecosystem. As such, we reject assertions by Public Knowledge et al. that in making its finding that reclassification and elimination of the rules will not harm public safety, the Commission focuses strictly on the question of prioritization of service.
27. Transparency, Antitrust, and Consumer Protection Laws Prevent Harms. The protections highlighted in the Restoring Internet Freedom Order are important factors in preserving the openness of public safety communications over broadband internet access service. Among these protections are the transparency rules we adopted, which require ISPs to disclose any blocking, throttling, affiliated prioritization, or paid prioritization in which they engage. As we explained in the Restoring Internet Freedom Orderin analysis that the Mozilla court upheld as reasonable history demonstrates that public attention, not heavy-handed Commission regulation, has been most effective in deterring ISP threats to openness and bringing about resolution of the rare incidents that arise. The Commission has had transparency requirements in place since 2010, and there have been very few incidents in the United States that plausibly raise openness concerns. Transparency thereby increases the likelihood that harmful practices will not occur in the first place and that, if they do, they will be quickly remedied.
28. Indeed, many ISPs, including all major ISPs, have gone further than disclosing their policies by making enforceable commitments to maintain internet openness. As NCTA explains, all major broadband providers have
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now publicly made enforceable commitments not to engage in conduct that violates consensus open internet principles. ISPs have made these commitments despite the lack of Title II
regulation, and the record reflects that ISPs recognize the importance of these commitments with respect to public safety communicationsfor example, Comcast explains that its incentives to adhere to public commitments to open internet protections are rightly even stronger . . . when it comes to serving the public safety community, particularly first responders during an emergency. We disagree with Free Presss assertions that the notion that transparency and shaming will discipline carriers is a vain hope. We observe that the Mozilla court has already upheld the Commissions findings regarding reliance on the transparency rule. These commitments are not merely empty promises with no binding effect; instead, as a direct result of the Restoring Internet Freedom Order, the terms of such commitments are now enforceable by the Federal Trade Commission FTC, the nations premier consumer protection agency. Indeed, a Memorandum of Understanding between the Commission and the FTC
states that the FTC will investigate and take enforcement action as appropriate against internet service providers for unfair, deceptive, or otherwise unlawful acts or practices, including . . . actions pertaining to the accuracy of the disclosures such providers make pursuant to the Internet Freedom Orders requirements, as well as their marketing, advertising, and promotional activities.
29. Commitments to transparency carry particular force in the context of public safety communications because of the strong incentive for ISPs to maintain or improve their reputations by protecting such communications. As NCTA explains, broadband providers recognize the vital importance of ensuring robust and reliable networks for public safety communications, and know that they would need to answer to customers and policymakers if their practices were to threaten to hamper public safety in any way. In addition, there are strong business incentives for broadband providers to ensure that public safety communications remain unharmed. ISPs have more than business incentives to ensure that broadband communications remain unhampered by harmful network management practices. As ACA
Connects explains, the communitybased providers that it represents also have a personal stake in ensuring the
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safety of their neighbors, family and friends. As we previously found in the Restoring Internet Freedom Order, even when public safety is not at stake, it is likely that any attempt by ISPs to undermine the openness of the internet would be resisted by consumers and edge providers.
30. Likewise, consistent with our findings in the Restoring Internet Freedom Order, we find that antitrust law can also protect consumers from practices that may hinder their ability to access public safety resources and similarly helps protect public safety communications over broadband internet access service from blocking, throttling, alleged degradation due to paid prioritization, and other harms to openness. The antitrust laws, particularly sections 1 and 2 of the Sherman Act, as well as section 5 of the FTC Act, protect competition in all sectors of the economy, including broadband internet access.
Consequently, if an ISP attempts to block or degrade traffic in a manner that is anticompetitive, relief may be available under the antitrust laws.
Moreover, to the extent an ISP has market power, antitrust laws could be used to address any anticompetitive paid prioritization practices by an ISP.
As we explained in the Restoring internet Freedom Order, one of the benefits of antitrust law is its strong focus on protecting competition and consumers. If the types of conduct and practices that had been prohibited under the Title II Order were challenged as anticompetitive under the antitrust laws, such conduct would likely be evaluated under the rule of reason, which amounts to a consumer welfare test. A welfare approach was established in Reiter v. Sonotone Corp., 442 U.S.
330, 343 1979. The transparency rule the Commission adopted amplifies the power of antitrust law and the FTC Act to deter and, where needed, remedy behavior that harms consumers, including for public safety purposes.
31. Further, consistent with our conclusion in the Restoring Internet Freedom Order, we believe that consumer protection laws also help protect public safety communications from practices that could harm openness. The FTC has broad authority to protect consumers from unfair and deceptive acts or practices. The FTCs unfair-and-deceptive-practices authority prohibits companies from selling consumers one product or service but then providing them something different, which makes voluntary commitments not to engage in blocking, throttling, or paid prioritization enforceable. The FTC also requires the
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