Tim Wu testimony on Net Neutrality

Direct copy from line #970 at https://www.gpo.gov/fdsys/pkg/CHRG-113hhrg88377/html/CHRG-113hhrg88377.htm


TESTIMONY OF TIM WU, PROFESSOR OF LAW,
                      COLUMBIA LAW SCHOOL

    Mr. Wu. Chairman, Ranking Member, Members of the
Subcommittee, thanks so much for holding this hearing. I
welcome the opportunity.
    I can summarize my comments in a few sentences. I have the
highest admiration for the antitrust laws and the agencies
enforcing antitrust laws. But I simply don't think they are
equipped to handle the broad range of values and policies that
are implicated by net neutrality and by the open Internet.
    Just to take a sample, what I am suggesting is that when we
consider Internet policy, what we are really considering is not
merely economic policy, not merely competition policy, but also
media policy, social policy, oversight of the political
process, issues of free speech.
    There are a wide range of noneconomic values that I fear
the antitrust law, despite its expertise, despite the decades,
indeed, over a century of lawmaking in that area, simply does
not capture.
    And for that reason, I think that, despite its
imperfections, we should stick with the process of FCC
oversight of the Internet and enforcement of net neutrality
rules.
    So let me break some of these ideas out a little bit.
    First, as I said, I have enormous appreciation for the
antitrust laws and the agencies that enforce them. I served for
some time at the Federal Trade Commission.
    And I think there are some advantages that the FCC could
learn from in this area. There is a commendable insulation from
influence. The adversary process is very well handled. I think
the FTC does a good job at what it does.
    The problem is with the FTC and other antitrust agencies is
that they are optimized for one kind, or two kinds in the case
of FTC, two kinds of problems. And that is the protection of
consumer welfare through the competitive process.
    And this is obviously a worthy goal. I am not going to sit
here and say we shouldn't protect the competitive process. That
is terrific.
    And this is typically accomplished by focusing on a complex
and very sophisticated economic analysis, which, again, I
commend when we are considering only the issue of competition.
    The problem is that in its day-to-day operations, the
Internet implicates a whole host of noneconomic values, which
are simply not well-captured by antitrust processes.
    Let me just give an example. Let's imagine we had an
Internet service provider that for its own reasons decided it
did not like political speakers on one or another side of the
spectrum. Let's say we had a different ISP that for whatever
reason believed that local news sources were less valuable than
national news sources and decided to favor them. Or let's say
we had an ISP that had a bias in favor of big speakers as
opposed to small speakers, for whatever reasons. Or maybe just
something totally irrational, like it favored one sports team,
it just thought the New York Rangers were a better hockey team
despite losing the Stanley Cup than the L.A. Kings, and so
tried to adjust coverage around sports.
    Whatever it was, these are the kinds of issues, whether
political, social, sports, whatever, you name it, that simply
do not register in the antitrust analysis, because if you have
political bias, it doesn't necessarily give a competitive
advantage to the ISP.
    And so what I am trying to suggest here is that at stake in
the net neutrality debate is really protection of the American
political process and protection of the United States as an
open society. And we can't accomplish that simply--we can't
leave a matter that important to the economists. That is what I
am trying to suggest.
    I have great respect for economists. I have a great respect
for economic analysis. But I want to suggest we cannot leave
the multiple values at stake in American society and in our
political process to mere economic analysis.
    And I will close my comments right there. Thank you very
much.