One of the US government’s top regulators has warned that her department is in no position to take on the mantle of protecting the open internet if its sister organization, the FCC, votes on repealing net neutrality regulations later this month.

Federal Trade Commission (FTC) Commissioner Terrell McSweeny has repeatedly warned that her organization is not able to do the job it may be handed later this month but in an article, she goes into some detail over why.

“The FTC does not have specialized expertise in telecommunications. We don’t have engineers with technical experience in data network management practices. We don’t even have jurisdiction over common carriers,” she warns. “These are very real and significant limits to the effectiveness of our tools in ensuring that networks are open and free of harmful discrimination.”

In a debate that has been full of angry assertions but little real detail, McSweeny’s intervention is welcome in that it walks through likely scenarios.

“For one thing, the FTC’s mandate in the competition space is to ‘maintain competition.’ I believe in the virtues of competition. But we cannot ‘maintain’ competition that does not exist,” she notes. “The reality is that tens of millions of Americans have little or no choice when it comes to wireline broadband service.

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La La La, I can’t hear you: FCC responds to net neut concerns

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“Those who oppose net neutrality rules often make the mistake of suggesting that market competition will limit discriminatory conduct and push ISPs to offer consumers better service. But that argument only makes sense if there is underlying market competition to begin with. Otherwise, it’s like saying your dog will protect your house when you don’t own a dog.”

Cost + time = mess

She also points out that the sorts of problems that the FTC will be expected to take on for the protection of consumers will be “costly, difficult, and time consuming to detect and prosecute,” not to mention the fact that the FTC “lacks the FCC’s technical expertise in data network management.”

In a real world situation, she notes, it could take years for the FTC to get a court order to stop a company from carrying out harmful conduct – at which point a large and powerful ISP could drive a competitor out of business. “Even if the FTC were ultimately to prevail, we couldn’t resurrect the dead rival,” she notes.

Instead, McSweeny argues, the logical approach is the one that currently exists: clear rules from the FCC stating what is not allowed, rather than no rules and a reliance on customer complaints and an after-the-fact investigation by the FTC to prevent abuses.

And just to hammer home the point, McSweeney points out, reluctantly, that the FTC lacks “the tools, the expertise, and the resources” to do what it is being asked to do for million of American consumers. “I have every confidence that our staff will work tirelessly to protect consumers as best they can using the tools we have,” she notes, adding: “It will not be enough. We are being set up to fail.”

Meanwhile, pro net neutrality advocates are planning another day of protest just two days before the FCC meeting on December 14 where chair Ajit Pai’s plan is set to be voted on.

The campaign this time has given up on trying to persuade Pai or his fellow Republican commissioners – who have made it plain they have no intention of debating the issue beyond making snarky comments about celebrity tweets – and is aiming directly at Congress.

“The FCC is days away from voting to end net neutrality. Congress can still stop the vote, but only if we make them,” reads a rallying message. The idea is to “break” your website, or app, or social media profile to highlight that the future of the web will be terrible without net neutrality rules.

Oh Canada

The issue will also have broader repercussions: a Canadian government official admitted this week that net neutrality had become an issue in negotiations over a replacement for the NAFTA trade agreement.

“We are including provisions such as online consumer protection to ensure that that is provided for and we also have provisions to provide personal information protection, which we feel is essential in this kind of trade, along with our position that we want to protect net neutrality when it comes to digital trade,” Canada’s lead NAFTA negotiator Steve Verheul said to a parliamentary committee this week.

According to Verheul, the US negotiating team is focused on trying to get Canada to accept the US version of intermediary protections online – where ISPs and third parties like Facebook can’t be held legally responsible for the behavior of their customers in their respond appropriately when notified – but Canadian prefer to leave the issue to the courts and out of a trade agreement.

He admitted that the US’ negotiating team “has not reacted positively” to the Canadian pushback on net neutrality. ®