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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations disclosure of material information if not disclosing it would mislead the consumer, so if an ISP failed to disclose blocking, throttling, or other practices that would matter to a reasonable consumer, the FTCs deception authority would apply.
Reclassification restored the FTCs authority to enforce those consumer protection requirements in the case of broadband internet access service.
Indeed, the FTC has already successfully used its authority to pursue a complaint against AT&T for allegedly deceptively marketing one of its own mobile broadband subscription plans.
And all states have laws proscribing deceptive trade practices.
32. The D.C. Circuit found that the Commissions reliance on antitrust and consumer protection laws to limit anticompetitive behavior was reasonable, especially as part of the broader regulatory and economic framework, and we do not revisit those prior Commission findings here. Nor do we find that reasoning substantially diminished when public safety concerns are at issue. For one, that reasoning retains its full force with respect to protections that flow from the ISPs own public statements. ISPs know that their public statements regarding network managementwhether made to comply with our transparency rule or otherwiseare subject to enforcement by the FTC. Thus, ISPs public statements, in effect, create ex ante requirements to which they are bound.
The record does not reveal that enforcement of those statements, such as through the FTCs consumer protection authority, would be any less effective at preventing contrary ISP
conduct than would enforcement of Commission rules prohibiting the same network management practices.
33. Consumer protection and antitrust laws help guard against risks from conduct not foreclosed by providers public statements, as well. The record here does not reveal credible claims that ISPs would somehow target their conduct to harm public safety in a manner that would require ex ante public safety-focused legal protections.
Instead, commenters concerns here reflect the view that the ISP conduct that could lead to public safety harms is the same conduct about which concerns have been expressed more generally, even if the consequences of such conduct could be particularly dire in the public safety context. Because consumer protection and antitrust laws help safeguard users of broadband internet access service from conduct that could undermine internet opennessand because that same conduct underlies the
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public safety concerns expressed by commenters herethose laws help address any public safety concerns notwithstanding their lack of an express public safety focus. Although some commenters observe that antitrust and consumer protection laws are not framed with a focus on public safety concerns, neither the Title II regulatory framework nor the restrictions on ISP
conduct in the bright line and general conduct rules adopted in the Title II
Order specified particular restrictions on ISPs in connection with public safety, either. Although traffic prioritization . . . practices that serve a public safety purpose, may be acceptable under our rules as reasonable network management under the Title II
Order, the restrictions on ISP conduct under the bright line rules were not framed in terms of public safety, nor did the factors identified by the Commission to guide the application of its general conduct rule focus on public safety concerns. This conclusion is not diminished by the fact that the Commission did adopt a public safetyfocused carve-out from those conduct rules because that carve-out rule did not restrict ISP conduct in any way. In sum, even the Title II Order itself thus adopted rules restricting ISP conduct that it anticipated ultimately could benefit public safety, notwithstanding the lack of a public safety focus.
Consequently, although we do not presume that consumer protection and antitrust laws themselves provide perfect protections against all possible public safety concerns, we conclude that they do still provide significant protections notwithstanding their lack of an express public safety focus, and rely on them in conjunction with the broader range of considerations that collectively persuade us that public safety harms are unlikely under our regulatory framework in the Restoring Internet Freedom Order. Even ex post FTC enforcement of such conduct as unfair or anticompetitive practices would have a significant effect by causing providers to avoid conduct in the first instance if it has the potential to result in liability under those legal regimes. We anticipate a similar deterrent effect from consumer protection laws. Although the Mozilla court noted that the record reflected concern about adequacy of ex post enforcement in the public safety context to the extent that such potential for enforcement did not fully deter harmful ISP conduct from occurring, we find that to be a far more limited concern than some commenters claim. As a threshold matter, while the court
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focused on commenters concerns about dire, irreversible public safety consequences from ISP conduct such as loss of life, commenters here raise a wide array of situations with a claimed nexus to safety of life and property where it is doubtful that ISP conduct even assuming arguendo that it occurred and had momentary effects on the relevant applicationswould result in meaningful harm, let alone loss of life. More fundamentally, we rely on transparency, consumer protection laws, and antitrust laws only as one part of a broader set of considerations that collectively persuade us that public safety harms are unlikely to result from the regulatory approach in the Restoring Internet Freedom Order. For example, ISPs conduct in the first instance is likely to be informed by the highly probable reputational effects. In addition, as we explain below, even if ISP conduct like paid prioritization were to occur, the record does not reveal likely practical harm to applications used for public safety communications over mass market broadband internet access service. We note that such public safety communications often occur over specialized networks which generally include quality-of-service guarantees unlike best efforts broadband internet access servicewhich further limits the scope of communications potentially affected.
34. Absence of Proven Harms. The internet has been subject to light-touch regulation for the entirety of the time since enactment of the 1996 Act, apart from the short period in which the Title II Order controlled. Further, during most of the past two decades, the Commission did not have in place potentially enforceable attempts at conduct regulation. The Commission adopted the Comcast-BitTorrent Order, which attempted to directly enforce Federal internet policy that it drew from various statutory provisions, in August 2008. On April 6, 2010, the U.S. Court of Appeals for the D.C. Circuit rejected the Commissions action, holding that the Commission had not justified its action as a valid exercise of ancillary authority. The Commission adopted the Open Internet Order in December 2010, but it was not effective until some months later. The Verizon court decision was decided on January 14, 2014, and the Title II Order was not adopted until over a year later, on February 26, 2015, and became effective several months later. Yet for all this time from which to draw, commenters claiming that the Restoring Internet Freedom Order harms public safety communications are only able to point
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