U.S. GOVERNMENT PUBLISHING OFFICE

30–101 WASHINGTON : 2018

NET NEUTRALITY AND THE ROLE OF ANTITRUST 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 1, 2017 

Serial No. 115–24 

Printed for the use of the Committee on the Judiciary 

( 

Available on the World Wide Web: http://judiciary.house.gov 


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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

TOM MARINO, Pennsylvania, Chairman 

BLAKE FARENTHOLD, Texas, Vice-Chairman 

DARRELL E. ISSA, California 

DOUG COLLINS, Georgia 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MATT GAETZ, Florida 

DAVID N. CICILLINE, Rhode Island 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

ERIC SWALWELL, California 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 


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C O N T E N T S 

OPENING STATEMENTS 

Page 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 4 

The Honorable John Conyers, Jr., Michigan, Ranking Member, Committee 

on the Judiciary ................................................................................................... 6 

The Honorable Tom Marino, Pennsylvania, Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary ......................................................................................................................... 1 

The Honorable David Cicilline, Rhode Island, Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary ........................................................................................ 3 

WITNESSES 

Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission 

Oral Statement ................................................................................................. 9 

Mr. Michael Romano, Senior Vice President, Industry Affairs & Business 

Development, NTCA (The Rural Broadband Association) 

Oral Statement ................................................................................................. 11 

Hon. Terrell McSweeny, Commissioner, Federal Trade Commission 

Oral Statement ................................................................................................. 13 

Hon. Robert M. McDowell, Former Commissioner, Federal Communications 

Commission 

Oral Statement ................................................................................................. 15 

OFFICIAL HEARING RECORD 

Responses to Questions for the Record from the Hon. Maureen K. Ohlhausen, 

Acting Chairman, Federal Trade Commission .................................................. 36 

Responses to Questions for the Record from Mr. Michael Romano, Senior 

Vice President, Industry Affairs & Business Development, NTCA (The 

Rural Broadband Association) ............................................................................. 39 

Responses to Questions for the Record from the Hon. Terrell McSweeny, 

Commissioner, Federal Trade Commission ........................................................ 43 

Responses to Questions for the Record from Hon. Robert M. McDowell, 

Former Commissioner, Federal Communications Commission ........................ 47 


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ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Report submitted by the Honorable Tom Marino, Pennsylvania, Chairman, 

Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary. This material is available at the Committee and 

can be accessed on the Committee Repository at: 

http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG115-JU05-20171101-SD004.pdf 

Statements, Letter, and Testimony submitted by the Honorable David 

Cicilline, Rhode Island, Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary. These 

materials are available at the Committee and can be accessed on the 

Committee Repository at: 

http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG115-JU05-20171101-SD003.pdf 

Article submitted by the Honorable Pramila Jayapal, Washington, Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary. These materials are available at the Committee 

and can be accessed on the Committee Repository at: 

http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG– 

115-JU05-20171101-SD005.pdf 


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NET NEUTRALITY AND THE ROLE OF 

ANTITRUST 

WEDNESDAY, NOVEMBER 1, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND

ANTITRUST LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. Tom Marino [Chairman 

of the Subcommittee] presiding. 

Present: Representatives Marino, Goodlatte, Farenthold, Issa, 

Collins, Buck, Ratcliffe, Gaetz, Handel, Cicilline, Conyers, Johnson 

of Georgia, Eric Swalwell, Jayapal, and Schneider. 

Staff Present: Ryan Dattilo, Counsel; Slade Bond, Minority Counsel; and Andrea Woodard, Clerk. 

Mr. MARINO. Good morning. The Subcommittee on Regulatory 

Reform, Commercial, and Antitrust Law will come to order. Without objection, the Chair is authorized to declare recesses of the 

Committee at any time. We welcome everyone to today’s hearing on 

‘‘Net Neutrality and the Role of Antitrust’’, and I now recognize 

myself for an opening statement. 

The Federal Communications Commission and its new Chairman, Ajit Pai, are in the process of evaluating what is the proper 

way to protect consumer welfare and support innovation in the 

Internet marketplace. We are here today to examine the role of 

antitrust law in that debate. 

The Internet has been an overwhelmingly positive development 

for our country by spurring innovation, creating jobs, and establishing a dynamic marketplace for goods and ideas. All branches of 

our government should strive to protect the unimpeded growth of 

the Internet so that consumers and our economy can continue to 

reap its benefits. 

I strongly believe, however, that actions should be taken to prevent discriminatory and anticompetitive conduct from occurring in 

the Internet marketplace. The question at hand today is what role 

should antitrust laws and the Federal Trade Commission, which 

helps to enforce those laws, play in preventing and policing this 

type of conduct. Antitrust law has a number of benefits we should 

consider. 


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Antitrust law and the standards applied by the courts have developed, evolved, and been refined over decades. This stands in contrast to the regulations imposed under the previous FCC’s 2015 

Open Internet Order, which can be interpreted and enforced by a 

constantly rotating commission, and the judicial interpretation of 

which is uncertain. Antitrust law uniformly applies to all participants in the Internet marketplace. 

In contrast, the 2015 order’s regulations only apply to Internet 

service providers. Antitrust law deters and, as necessary, can be 

used to prosecute conduct once it occurs and determine on a caseby-case basis whether a violation has occurred. This allows for 

flexibility and pro-consumer innovation. The 2015 Order applies a 

‘‘one-size-fits-all’’ approach, imposing a burden on all regulated parties, regardless of whether they actually engaged or may want to 

engage in improper conduct, and discouraging potential innovation. 

The impact of today’s discussion is significant. Consider, for example, the case of rural broadband. Because rural areas of America 

tend to be sparsely populated, satellite and fixed-wireless technologies are often used to deliver Internet access to rural customers. These technologies are costly, and consequently often involve strict data caps. A practice known as ‘‘zero-rating,’’ or the exemption of certain data uses from consumers and customers’ data 

caps helps to address these concerns through competition and innovation, lowering prices, and improving service for customers. Yet 

under the 2015 Order, this consumer welfare-enhancing competition was almost stopped. 

Consider also the case of differentiated broadband plans. When 

American families buy groceries, they have the choice of purchasing food from the local supermarket or from a high-end organic 

retailer like Whole Foods. Families who just want the basics or are 

on a limited income, are not forced to subsidize the preferences of 

shoppers with higher-end preferences. 

But because of the FCC’s rigid net neutrality rules, broadband 

consumers do not have the same flexibility. Under the guise of 

equal access, those who use the Internet sparingly—often, the poor 

and elderly—are forced to subsidize their more affluent high-bandwidth-consuming neighbors’ broadband bills. Let’s also consider the 

future of the Internet. 

5G, the next generation of mobile broadband, will deliver speeds 

far surpassing today’s LTE technologies as well as the speeds of 

many American’s home broadband connections. 5G promises not 

only to advance competition in the mobile wireless industry but 

also to connect a new array of ‘‘Internet of Things,’’ or ‘‘IoT’’ devices, such as network-connected agricultural monitoring devices, 

autonomous vehicles, and medical monitoring devices. 5G delivers 

on these promises by utilizing technologies that prioritize certain 

network uses that require extreme responsiveness. Innovations in 

telehealth, remote medical device monitoring, or communications 

amongst autonomous vehicles will all benefit from prioritized connections. Yet under the 2015 Order, such innovation might be 

stopped by the regulatory overreach of a future administration. 

I look forward to hearing the testimony of today’s witnesses on 

the potential benefits, or, if relevant, limitations of using antitrust 


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law to protect consumers and innovation in the Internet marketplace. 

The Chair now recognizes the Ranking Member of the Subcommittee on Regulatory Reform, Commercial, and Antitrust law, 

Mr. Cicilline of Rhode Island, for his opening statement. 

Mr. CICILLINE. Thank you, Mr. Chairman, and thank you for 

calling this hearing today. Welcome to our witnesses. Today’s hearing is an opportunity to examine whether antitrust enforcement is 

an effective and responsive substitute for the clear bright-line consumer protections established by the 2015 Open Internet Order. 

When working families pay their bill for broadband Internet access, they expect to get what they pay for: access to the entire lawful Internet, not just portion of it, at the speed they pay for. Without these protections, broadband providers could slow down consumers’ Internet speeds to certain websites, require payments by 

third parties to speed traffic to consumers, or block certain 

websites altogether. To be clear, these concerns are firmly grounded in reality. 

As the United States Court of Appeals for the D.C. Circuit observed in 2014, it is, and I quote, ‘‘common sense economic reality’’ 

that broadband providers have powerful incentives to require fees 

from edge providers to prioritize customer speeds and discriminate 

against certain types of traffic. 

Consequently, as the court noted, this behavior threatens Internet openness in ways that would ultimately inhibit the speed and 

extent of future broadband deployment. Importantly, these protections do not apply to reasonable management of networks by Internet service providers to ensure that their consumers have the fastest and most reliable Internet speeds possible. 

Moreover, and this is a fundamental point, these protections do 

not apply to specialized services, like heart monitors, energy consumption sensors, or voice services, which are entirely outside the 

scope of the 2015 Open Internet Order because they are not a 

former broadband Internet access service for consumers. Under the 

Trump administration, the Federal Communications Commission is 

considering whether to abolish or substantially revise these protections. 

According to the Commission’s notice of proposed rulemaking, 

the proposed rule seeks to, and I quote, ‘‘reverse the decline in infrastructure investment, innovations, and options for consumers’’ 

and address the concerns of broadband providers with regulatory 

uncertainty. 

The Supreme Court has long held, however, that the Commission 

cannot simply rescind rules, but instead must examine the relevant 

data and articulate a rational connection between relevant facts 

and its deregulatory actions. 

Notwithstanding the Commission’s claims that our current net 

neutrality protections have undermined broadband deployment and 

adoption, the U.S. Court of Appeals for the D.C. Circuit has held 

twice in the past 3 years that Internet openness fosters innovation 

and leads to the expansion and improvement of broadband infrastructure. Unless the Commission is able to explain why it has ignored this data showing the causal relationship between strong net 

neutrality protections and broadband investment, its actions are 


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likely to be arbitrary and capricious under the Administrative Procedures Act. 

Turning to the subject of today’s hearing, there is substantial uncertainty concerning the application of the antitrust laws to discriminatory conduct by broadband providers. First, it is unclear 

that the Federal Trade Commission has authority to enforce the 

antitrust law against common carriers, which are exempted under 

section 5 of the FTC Act, even where a carrier is acting as a 

broadband provider. This exact question is before the ninth circuit 

in an en banc review of its prior ruling that the FTC does not possess this authority. 

Secondly, to the extent that the Federal Trade Commission even 

has the authority over common carriers, there is no evidence that 

antitrust enforcement is a substitute for bright-line rules to ensure 

openness. The Commission’s proposal does not address or even ask 

this question, while the Federal Trade Commission’s 2007 report 

on broadband connectivity and competition policy does not provide 

clear guidance on whether paid prioritization blocking or throttling 

are cognizable harms under the antitrust laws. 

The point is underscored by bipartisan legislation introduced by 

Chairman Goodlatte in 1999 and Chairman Sensenbrenner in 

2006, which each would have made discriminatory conduct by 

broadband providers an antitrust violation tacitly recognizing that 

this conduct does not violate the antitrust laws today. And finally, 

as Professor Tim Wu has previously testified before this Subcommittee, the type of economic analysis that antitrust enforcement relies upon does not reflect diffuse but important values, like 

speech or a healthy economy. 

In other words, it is virtually impossible for antitrust enforcement to protect against the full array of discriminatory conduct 

prohibited by the Open Internet Order. Before closing, I want to 

make a moment to note that a primary goal of preserving Internet 

openness is to prevent Internet gatekeepers from choosing the content that consumers are able to see online or balkanizing the Internet. 

Today, there is increasing concern that some platforms have 

abused their dominance to stifle innovation, undermine privacy, 

and divert readers and advertising revenue away from trustworthy 

sources of news and information, as the Open Markets Institute recently observed in a letter to the FTC. I have previously requested 

that the Committee hold a hearing to examine the effects of platform dominance on consumers, innovations, and workers to ensure 

that the antitrust laws are working effectively, and I renew that 

request today. 

As I have said before, we cannot retreat from hard conversations 

about new issues. I again thank the Chairman for calling today’s 

hearing and look forward to the testimony of our esteemed panel 

of witnesses. And I yield back. 

Mr. MARINO. Thank you. The Chair recognizes the Chairman of 

the full Judiciary Committee, Mr. Goodlatte from Virginia for his 

opening statement. 

Chairman GOODLATTE. Thank you, Mr. Chairman. And I very 

much appreciate your holding this very important hearing today. 

Actually, today’s hearing marks the seventh hearing over the past 


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decade that the Judiciary Committee has held on the topic of net 

neutrality. The significant amount of time and effort devoted to 

this topic evidences the need for a more permanent solution. Fortunately, the FCC, under the leadership of newly-confirmed Chairman Ajit Pai, is taking actions to help steer us in that direction. 

On May 18, 2017, 2 years after the Obama administration’s FCC 

imposed the Open Internet Order, the current FCC adopted a Notice of Proposed Rulemaking (‘‘NPRM’’) to reexamine the regulatory 

framework established by the 2015 Order. The NPRM proposes, 

among under things, to reverse the decision of the Obama administration’s FCC to reclassify broadband Internet access service as a 

telecommunications service under the Communications Act of 1934. 

The NPRM also requests comment on whether to keep, modify, or 

eliminate certain ‘‘bright-line rules’’ adopted in the 2015 Order and 

whether regulatory intervention in the Internet service provider 

market is necessary. Finally, the NPRM proposes to eliminate the 

‘‘general Internet conduct standard,’’ which gives the FCC significant discretion to prohibit any ISP practice that it believes runs 

afoul of a non-exhaustive list of factors. 

The Internet that existed before the 2015 Order was dynamic, 

competitive, open, and free. By raising costs, imposing heavy regulatory burdens, introducing significant regulatory uncertainty, and 

instituting government meddling into nearly every aspect of the 

Internet, the Obama administration’s FCC seriously undermined 

the Internet’s competitive nature. 

The Obama administration’s FCC argued, under the guise of ‘‘net 

neutrality,’’ that imposing blanket regulation on the Internet marketplace is needed to encourage competition and promote a ‘‘virtuous cycle’’ of broadband use, innovation, and investment. I am 

deeply skeptical of these claims. 

In my experience, regulation generally stifles, rather than facilitates, competition and innovation. In fact, it is my belief that the 

Internet flourished precisely because it developed in a less regulated market. That is not to say that we should stand by and allow 

companies to engage in discriminatory or anticompetitive activities. 

Rather, I believe that the principles of ‘‘net neutrality’’ can be best 

achieved through the vigorous application of our Nation’s antitrust 

laws and, at most, a much lighter-handed regulatory approach than 

that contained in the 2015 Order. 

Strong enforcement of our antitrust laws can prevent dominant 

Internet service providers from discriminating against competitors’ 

content or in engaging in anticompetitive pricing practices. Supporters of net neutrality have voiced particular concerns over 

vertical agreements or mergers between Internet service providers 

and related businesses. Many experts acknowledge that these 

vertical agreements could possibly lead to anti-competitive conduct 

that could potentially harm consumers. In extreme cases, these arguments could eventually block downstream products, degrade 

services, and lead to higher prices for American families. I strongly 

agree that these anti-competitive practices should be aggressively 

deterred and punished. 

Yet, it is in these specific areas that the FTC has the relevant 

expertise and the most robust toolbox to address anticompetitive 

activities. Blanket regulation, by contrast, would deny consumers 


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the potential benefits in cost savings and improved services that 

may result from vertical agreements. 

Furthermore, antitrust laws can be applied uniformly to all 

Internet market participants, not just to Internet service providers, 

to ensure that improper behavior is policed uniformly across all 

corners of the Internet marketplace. 

The House Judiciary Committee conducted previous hearings last 

Congress, examining whether antitrust law or regulation is more 

effective at protecting consumers and innovation on the Internet. 

And witnesses testified strongly in support of applying antitrust 

law. 

Given the NPRM being considered by the FCC, it is essential 

that we continue this conversation as we search for a more permanent solution to this issue that provides for the flexibility to drive 

innovation and consumer welfare. 

Ultimately, I am open to the idea of amending the antitrust laws, 

if necessary, to account for the characteristics of the Internet. I will 

continue to use the House Judiciary Committee’s jurisdiction over 

our Nation’s antitrust laws and enforcement agencies in order to 

protect an open Internet and ensure that the Internet continues to 

flourish in a competitive deregulatory environment. 

Today’s hearing will demonstrate the significant support for reversing the 2015 Order and returning to a less-intrusive regulatory 

state in which the antitrust laws and the Federal Trade Commission play a significant role in addressing harmful conduct. 

I look forward to hearing today’s testimony on the role of antitrust laws in creating a permanent solution to the net neutrality 

debate that has been raging for over a decade. And I yield back. 

Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. The Chair recognizes the Ranking 

Member of the full Judiciary Committee, Mr. Conyers of Michigan, 

for his opening statement. 

Mr. CONYERS. Thank you, Chairman Marino. And top of the 

morning to all of our witnesses and members here, including the 

son of one of them. The Judiciary Committee has a central role in 

studying the issue of net neutrality and, more generally, competition on the Internet. As the Committee considers today the specific 

question of whether antitrust law would be a better tool than regulation to ensure Internet competition and innovation, we should 

keep several factors in mind. 

To begin with, failure to guarantee net neutrality is not an option. As I have previously observed at prior hearings on this topic, 

and I do not want to give my seniority away, but in 2008, 2011, 

2014, 2015, there are many areas in the United States where consumers have the choice of only one or two broadband Internet service providers. As a result, these broadband providers effectively 

function as monopolies or duopolies, let’s face it. 

Their control over the broadband access market gives them the 

incentive and ability to provide differential treatment of content, 

depending on factors like how much a content provider pays or 

whether the broadband provider also offers competing content. 

Such discrimination can lead to less consumer choice, less innovation, higher costs, and more power to control the flow of information and ideas in the hands of fewer broadband providers. EnforceVerDate Sep 11 2014 03:05 May 30, 2018 Jkt 030101 PO 00000 Frm 00010 Fmt 6633 Sfmt 6602 E:\HR\OC\A101.XXX A101

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ment of existing antitrust laws as the exclusive or primary means 

of ensuring an open Internet, however, would be insufficient. 

Under current antitrust law, there is relatively little that regulators can do outside the merger review context to address the conduct of a regulated industry, such as broadband Internet service, 

with respect to enforcing net neutrality principles. Through a series 

of decisions, the Supreme Court has limited the potential to successfully pursue claims under the Sherman Antitrust Act with respect to net neutrality. 

In addition, antitrust enforcement alone would be a cumbersome, 

more limited, more resource-intensive, and after the fact way than 

regulation to develop a regulatory regime for net neutrality. Moreover, antitrust law is not sufficiently broad in scope, as it fails to 

address the noneconomic goals of net neutrality, including the promotion of innovation and the protection of free speech and political 

debate. 

Now, while I welcome the recent efforts of some progressives to 

restore the original understanding and purpose of antitrust law to 

better account for the political implications of the excessive concentration of corporate power, antitrust law, nonetheless, will remain a necessary but insufficient tool with respect to ensuring net 

neutrality. In light of the foregoing, the Federal Communications 

Commission’s 2015 Open Internet Order provides a strong and 

vital set of rules for ensuring an open Internet, and the Commission should not rescind it. 

Rules to address net neutrality have the benefit of addressing potential threats to an open Internet before they fully materialize. 

Additionally, having a set of best practices enshrined in rules 

would provide certainty for the industry. I am particularly pleased 

that the Open Internet Order contains key provisions that many 

others like myself have long called for, including a rule preventing 

broadband providers from blocking or throttling Internet access or 

from imposing paid prioritization of Internet traffic and prohibition 

on any other practices that unreasonably interfere with or disadvantage users’ ability to access broadband service or lawful content applications or services. 

These measures are the best way to protect the virtuous cycle of 

innovation which net neutrality fosters and which ensures both 

competition and innovation among broadband and content providers to the ultimate benefit of consumers. I thank Chairman 

Marino for holding this hearing, and I look forward to our witnesses’ testimony today. Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. Without objection, other members’ 

opening statements will be made part of the record. 

Statement submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., Georgia, Subcommittee on Regulatory Reform, Commercial 

and Antitrust Law, Committee on the Judiciary. This material is 

available at the Committee and can be accessed on the Committee 

Repository at: http://docs.house.gov/meetings/JU/JU05/ 

20171101/106572/HHRG-115-JU05-MState-J000288- 

20171101.pdf. Mr. MARINO. I will begin by swearing in our witnesses before we 

introduce them. If you would please all rise, and raise your right 

hand. 


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Do you swear that the testimony you are about to give before 

this Committee is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Let the record reflect that all of the witnesses have responded in 

the affirmative. Please be seated, and thank you. 

I am going to introduce all of the witnesses before we start with 

your opening statements. Maureen K. Ohlhausen was sworn in as 

Commissioner of the Federal Trade Commission on April 4, 2012 

and was designated as Acting Chairman by President Donald 

Trump in January 2017. 

Prior to joining the Commission, Ohlhausen was a partner in 

Wilkinson Barker Knauer, LLP, where she focused on FTC issues, 

including privacy, data protection, and cybersecurity. Ms. 

Ohlhausen previously served at the Commission for 11 years, most 

recently as Director of the Office of Policy Planning from 2004 to 

2008, and she led the FTC’s Internet access taskforce. Ms. 

Ohlhausen was also Deputy Director of that office. 

From 1998 to 2001, she was an attorney advisor for former FTC 

Commissioner, Orson Swindle, advising him on competition and 

consumer protection matters. Before coming to the FTC, Ms. 

Ohlhausen spent 5 years at the U.S. Court of Appeals for the D.C. 

Circuit serving as a law clerk for Judge David B. Sentelle and as 

a staff attorney. 

She also clerked for Judge Robert Yock of the U.S. Court of Appeals Claims from 1991 to 1992. Ms. Ohlhausen graduated with 

distinction from Antonin Scalia Law School, George Mason University in 1991 and graduated with honors from the University of Virginia in 1984. Commissioner, thank you for being here. 

Michael Romano is the Senior Vice President of Industry Affairs 

and Business Development at NTCA Rural Broadband Association, 

where he oversees public policy advocacy, industry affairs, business 

opportunities, and community outreach efforts for the trade association on behalf of several hundred rural telecom operator members. 

Prior to working with NTCA, Mr. Romano was general counsel 

with the firm Bingham McCutchen LLP, representing telecommunication carriers and other service providers in regulatory 

rulemaking and adjunctive proceedings and civil and administrative litigation. 

He has also worked with Global Telecom and Technology, formerly Global Internetworking as vice president and General Counsel, and at other tech companies, such as America Online and Level 

3 Communications. Mr. Romano was also an associate at the firm 

of Swidler Berlin LLP, representing clients in regulatory 

processings for State regulators in the Federal Communications 

Commission and in contract negotiations with other industry operators. Mr. Romano earned his B.A. from Middlebury College and 

his J.D. from Georgetown University Law Center. Welcome, sir. 

Terrell McSweeny currently serves as Commissioner to the FTC. 

Prior to her appointment to the Commission by President Obama, 

Commissioner McSweeny served as Chief Counsel for the Competition Policy and Intergovernmental Relations Department with the 

Antitrust Division of the Department of Justice. Commissioner 

McSweeny also served as Senior Advisor to President Obama and 


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Vice President Biden, Deputy Chief of Staff to then-Senator Biden, 

and counsel to the Senate Judiciary Committee. 

She also worked in private practice at the firm of O’Melveny and 

Myers. Commissioner McSweeny earned her bachelor’s degree from 

Harvard University and her J.D. from Georgetown University 

School of Law. 

Robert McDowell is a partner with the firm Cooley LLP, where 

he specializes in regulatory communication mergers and acquisitions and telecommunications and wireless technology. Prior to 

joining Cooley, Mr. McDowell served as a Commissioner of the Federal Communications Commission, the FCC, for 7 years. He was 

first appointed by President George W. Bush in 2006 and again by 

President Obama in 2009. 

At the FCC, Mr. McDowell led efforts to expand consumer access 

to spectrum through his work on the two largest wireless auctions 

in the U.S. history at the time. He played a key role in 2009 digital 

television transition, and led efforts to establish the first Federal 

Civil Rights rule in a generation by creating a ban on racially discriminatory practices in broadcast advertising. 

He also helped oversee several large and complex mergers including SiriusXM and Comcast NBCUniversal. Prior to serving with 

the FCC, he was senior vice president for CompTel, the Competitive Telecommunications Association. Mr. McDowell earned his 

B.A. with honors from Duke University and his J.D. from William 

and Mary Law School. And I know that he has some very competent backup with him sitting behind him, his son. So, welcome. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. I ask that each witness summarize his 

or her testimony in 5 minutes or less. To help you stay within that 

time, there is a timing light in front of you. The light will switch 

from green to yellow indicating that you have 1 minute to conclude 

your testimony. And when the light turns red, it indicates that the 

witnesses’ 5 minutes have expired. 

I want to thank you witnesses for being here, and the Honorable 

Ms. Ohlhausen, please. 

STATEMENTS OF MAUREEN K. OHLHAUSEN, ACTING CHAIRMAN, FEDERAL TRADE COMMISSION; MICHAEL ROMANO, 

SENIOR VICE PRESIDENT, INDUSTRY AFFAIRS AND BUSINESS DEVELOPMENT, NTCA (RURAL BROADBAND ASSOCIATION); TERRELL MCSWEENY, COMMISSIONER, FEDERAL 

TRADE COMMISSION; AND ROBERT MCDOWELL, FORMER 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

STATEMENT OF MAUREEN K. OHLHAUSEN 

Ms. OHLHAUSEN. Chairman Marino, Ranking Member Cicilline, 

and members of the Subcommittee, I appreciate this opportunity to 

appear before you today to discuss network neutrality and the role 

of antitrust. Ten years ago, a bipartisan FTC approved a staff report that analyzed competition in consumer protection issues related to net neutrality and cautioned against regulation. Applying 

economic and antitrust analysis, our report explained that banning 

non-neutral behavior could harm consumers more than it helps 

them. Instead, the report noted that the FTC could assess whether 


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ISP’s practices are anticompetitive, unfair, or deceptive on a caseby-case basis. 

The report also recommended that ISPs clearly disclose the material terms of broadband access, particularly any traffic-shaping 

practices. This report remains highly relevant today, and where the 

evidence has changed, it shows the broadband market is more competitive than it was in 2007, strengthening the report’s conclusions. 

More recently, FTC staff filed a comment to the FCC detailing our 

expertise and recommending that the FCC reclassify broadband as 

a title I noncommon carrier service. And I agree with that recommendation, and filed my own comment to that effect. 

As the 2007 report and subsequent comments state, the FTC’s 

antitrust and consumer protection tools help ensure that consumers can pursue their preferences, whether for prioritized services or for equal treatment of all data by ISPs. The FTC has addressed a wide range of anticompetitive behavior, including the 

kinds of behavior that concern net neutrality advocates. 

For example, the FTC has sued companies for foreclosing rival 

content in an exclusionary or predatory manner, and challenged 

problematic access discrimination, pricing, and bundling practices. 

And we have conditioned vertical mergers that would have foreclosed competition in a downstream market. Antitrust enforcement, 

by protecting the competitive process, can promote net neutrality 

if that is what consumers want. 

Advocates of regulation often argue that consumers value the 

equal treatment of data by ISPs. If so, then any ISP that systematically degrades applications and content that its subscribers demand will certainly face a backlash. On the other hand, consumers 

may desire and benefit from certain non-neutral ISP practices, 

such as streaming services bundles or prioritization of telemedicine 

services. Case-by-case antitrust enforcement focused on competitive 

harm will allow ISPs and content providers to experiment in ways 

that benefit consumers, while guarding against arrangements that 

foreclose access to edge providers. 

Supporters of net neutrality regulation also commonly assert 

that the retail broadband market lacks competition, but measuring 

competition is not a simple exercise of counting how many wireline 

ISPs in an area provide broadband at a certain speed threshold. It 

requires careful product and market definitions and analysis of the 

disciplining effects of substitutes and potential entrants. The evidence of growing competition, such as improving speeds, the expansion of mobile broadband, and vigorous pricing competition, must 

also be considered when determining whether net neutrality regulation is necessary. 

Like our antitrust tools, the FTC’s consumer protection authority 

can help address concerns that consumers are not getting what 

they expect from their ISP. Our deception authority bans companies from offering consumers one product or service but providing 

them something different. And if ISPs promise to adhere to net 

neutrality principles, the FTC can hold them to these promises. 

Our deception authority also requires companies to disclose material information—for example, blocking or throttling practices—if 

not disclosing it would mislead a reasonable consumer. 


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The FTC’s unfairness authority prohibits practices where the actual or likely consumer injury is substantial, unavoidable, and not 

outweighed by benefits to consumers or competition. The FTC has 

used this authority to sue companies that unilaterally violated 

their promises. Indeed, the FTC is currently challenging as unfair 

and deceptive AT&T Mobility’s alleged practice of throttling wireless data plans which they advertise as unlimited. 

Case-by-case enforcement against particular instances of harm to 

consumers or competition is the right approach when we know that 

a type of practice typically benefits consumers and spurs competition. 

In contrast, a per se prohibition is appropriate only where we 

have evidence that a specific practice nearly always harms consumers without corresponding benefits. In short, the FTC has tools 

that are capable of protecting consumers and competition online. 

Thank you. 

Hon. Ohlhausen’s written statement is available at the Committee or on the Committee Repository at: http://docs.house.gov/ 

meetings/JU/JU05/20171101/106572/HHRG-115-JU05-WstateOlhausenM-20171101.pdf. 

Mr. MARINO. Thank you. Mr. Romano. 

STATEMENT OF MICHAEL ROMANO 

Mr. ROMANO. Chairman Marino, Ranking Member Cicilline, and 

members of the Subcommittee, thank you for the chance to offer 

the perspective of small, rural broadband network operators on 

agency roles and governance related to broadband. I am Mike Romano, Senior Vice President of NTCA, the Rural Broadband Association. 

Our nearly 850 members serve the most rural parts of the U.S., 

less than 5 percent of the U.S. population, spread across more than 

35 percent of the U.S. land mass. On average, they employ a few 

dozen people. 

Nonetheless, these small, hometown businesses strive to deploy 

networks that position rural America for success in a broadband 

world. Any small business can talk to the perils of ambiguous and 

heavy handed regulation, but for rural broadband operators in particular, time and resources needed to comply with the complex 

rules can hinder efforts to fulfill a statutory mandate for universal 

service, ensuring that every American, no matter where they live, 

has access to services reasonably comparable in price and quality 

to those in urban areas. 

At the same time, the capital-intensive nature of rural telecom 

makes regulatory certainty essential. Finding a steady balance in 

any framework is critical to promote and sustain rural broadband. 

This requires a division of labor between agencies based upon clear 

statutory constructs, core competencies, and expertise. Thus, even 

as NTCA has urged rules of the road to enable and sustain rural 

broadband, we have expressed concern about rules that may reach 

too far or be used as a platform for yet more rules to come. 

To this end, NTCA did not support retail broadband regulation 

by the FCC leading up to the Open Internet Order. We advocated, 

instead, for a different regime that would have targeted oversight 

of interconnection between the underlying networks. We had hoped 


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the 2015 Open Internet Order might adopt a limited approach like 

we advocated, but it did not. Instead, the order imposed complex 

and escalating obligations only upon retail broadband providers, 

despite the dynamic, multisided nature of the broadband ecosystem. 

Beyond questions of burden and the one-sided nature of the 

rules, the value of some of the rules adopted in 2015 remains unclear. For example, NTCA argued that new sector-specific privacy 

rules to govern custody and the use of data would only burden retail broadband providers and confuse customers, given other firms 

have control of the same data subject to different rules. 

For these reasons, NTCA was grateful when the FCC and Congress earlier this year put brakes on certain of the rules. Our Nation now has an important opportunity to reset and to establish a 

more appropriate division of labor, based, again, upon clear statutory constructs, core competencies, and agency expertise. 

NTCA submits that consumer broadband protection and retail 

marketplace competition issues are better overseen by the FTC, 

which is well-versed in such matters in the oversight of mass market services generally than by the FCC. Placing these responsibilities with the FTC, pursuant to its statutory mandates, can help 

avoid the kinds of concerns I described moments ago. But other distinct statutory provisions are important to keep in mind too, as our 

Nation considers next steps with respect to promoting the use of 

broadband. 

Of particular significance to rural America is the separate statutory mandate for universal service. The ongoing importance of promoting universal service in a broadband world must be sustained 

in any regulatory transitions to come. To help fulfill this statutory 

mandate, NTCA has highlighted the need to ensure that underlying networks interconnect and exchange data. A targeted focus by 

the FCC on such matters would be in sharp contrast to retail 

broadband services that have been the subject of sweeping regulatory attention to date. 

A network-focused framework need not, and indeed must not, 

interfere with a dynamic retail broadband marketplace. It must not 

transform into new net neutrality rules, creep into retail regulation, or erect ex-ante obligations that hinder innovation. This, in 

fact, was one of our primary concerns with the Open Internet 

Order in that the new rules looked very different than even the 

title II based frameworks under which our members had operated 

for years as historical telephone companies. 

But representing networks that sit hundreds of miles away from 

potential interconnection points and have already faced 

connectivity challenges in other contexts, NTCA is deeply concerned about ensuring rural America gets and stays connected with 

the rest of the broadband world, consistent with the goals of universal service. 

NTCA submits the FCC is well-equipped by law and experience 

to deal with matters of interconnection specifically as a distinct and 

separate matter from any net neutrality considerations. We, therefore, encourage a continued role for the agency in this discrete yet 

critical regard, even as the FTC might soon reassume primacy with 


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respective to consumer protection and competition in the retail 

broadband marketplace. 

In short, as changes are contemplated to address broadband policy, NTCA urges Congress and the FCC and FTC working in partnership to ensure that other distinct but important public policy 

principles, such as universal service and connectivity, are also fulfilled and sustained in a broadband world. NTCA looks forward to 

continuing to work with you and the agencies on behalf of our hundreds of small operator members and the millions of rural Americans they serve. Thank you. 

Mr. Romano’s written statement is available at the Committee or 

on the Committee Repository at: http://docs.house.gov/meetings/ 

JU/JU05/20171101/106572/HHRG-115-JU05-Wstate-RomanoM20171101.pdf. 

Mr. MARINO. Thank you. The Chair now recognizes the Honorable Ms. McSweeny. 

STATEMENT OF TERRELL MCSWEENY 

Ms. MCSWEENY. Good morning. Thank you very much, Chairman 

Marino and Ranking Member Cicilline, Chairman Goodlatte, Ranking Member Conyers; a pleasure to see you and the distinguished 

members of the Committee. I am Terrell McSweeny. I am a commissioner at the Federal Trade Commission, but today I am speaking on behalf of myself, not the commission. I support the FCC’s 

2015 Open Internet Order because it establishes clear rules to protect consumers and entrepreneurs who are dependent on a few very 

large broadband providers that serve as the gatekeepers to the 

Internet. 

For more than a decade, the status quo in the United States has 

been an open Internet that supports thriving innovation. I am 

proud to serve at the Federal Trade Commission, but it is wrong 

to assume that a framework that relies solely on backward-looking 

consumer protection and antitrust enforcement can provide the 

same assurances to innovators and consumers as forward-looking 

rules contained in the FCC’s Open Internet Order. 

While it is true that the FTC possesses a great deal of expertise 

in areas of antitrust and consumer protection, it does not possess 

specialized subject matter expertise in telecommunications, data 

network management practices, or in detecting instances of data 

discrimination. That expertise is housed at the FCC. These are 

very real and significant limits to the effectiveness of the FTC’s 

tools in policing nondiscrimination on networks and protecting competition. 

Moreover, antitrust tools are designed to protect competition, but 

broadband markets are highly concentrated. The majority of American consumers have little or no choice when it comes to wireline 

broadband. Competitive pressure cannot be counted on to either 

push ISPs to offer consumers better contract terms or quality of 

service or to limit discriminatory conduct. 

Since most U.S. consumers are dependent on a few big players 

to access the Internet, the critical question, then, is whether these 

companies have the incentive and ability to harm consumers and 

competition. Both the Department of Justice and the Federal Communications Commission have recognized that they do. 


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For example, big broadband companies also supply video programming. That means that their revenues are directly threatened 

when consumers use broadband connections to access competing 

video providers or new entrants. It is well-established that appropriately tailored regulation can complement antitrust law in highly 

concentrated markets, particularly when vertically integrated incumbents have incentives to harm competitors. Absent clear rules, 

the detection of discriminatory conduct is costly, difficult, time-consuming, and hard to remedy. 

For example, let’s say you are watching streaming video, and 

your stream becomes slow or grainy. Is that caused by intentional 

data discrimination by your ISP, or might it be a server issue related to the content provider? Perhaps it is a spotty connection, or 

maybe it is something else entirely. How would a typical consumer 

know? How would the FTC? 

If the FTC were to detect a possibly anticompetitive practice, 

antitrust enforcement requires not only detection but thorough investigation, prosecution, a potentially lengthy rule of reason analysis, and perhaps a multiyear appeals process. At the end of that 

process, we could not travel back in time to undo the harm that 

had excluded the rival or reset the competitive evolution of the 

marketplace. Remedy remains a serious challenge to relying on an 

antitrust enforcement approach. 

Moreover, the premise of Internet openness is that consumers 

should be able to use their broadband connections to access the 

lawful content of their choosing. Noneconomic values, such as freedom of expression and diversity of discourse, may not be easily 

reached under antitrust law. Finally, the FTC’s jurisdiction over 

common carriers remains unclear. Even if the FCC reclassifies 

broadband as an information service, the majority of providers will 

continue to provide common carrier services, and, therefore, will remain classified as common carriers. 

Unless Congress repeals our common carrier exemption, we will 

continue to face challenges to our authority over these industries. 

Additionally, renovations to the FTC’s authority—for example, giving it more extensive tools to protect consumer data and privacy, 

making sure it has the proper resources, and giving it more leeway 

to challenge anticompetitive measures and conduct in highly-concentrated markets—would help the Commission keep pace with 

changes in the economy. 

Earlier this year, Congress took the unfortunate action, in my 

view, of repealing the FCC’s broadband privacy rules, leaving consumers without important protections over how their data is used 

and shifting the risk from industry giants onto American families. 

We should not double down on this approach. This is not a situation where we have an either-or choice between clear FCC rules to 

protect an open Internet and FTC enforcement. 

By design, the agencies have different tools, with different features. Both have a role to play when it comes to protecting consumers and ensuring an Internet that fosters innovation. Thank 

you. 

Hon. McSweeny’s written statement is available at the Committee or on the Committee Repository at: http://docs.house.gov/ 


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meetings/JU/JU05/20171101/106572/HHRG-115-JU05-WstateMcSweeneyT-20171101.pdf. 

Mr. MARINO. Thank you. The Chair recognizes the Honorable Mr. 

McDowell. 

STATEMENT OF ROBERT MCDOWELL 

Mr. MCDOWELL. Thank you, Mr. Chairman. Chairman Goodlatte, 

Chairman Marino, Ranking Members Conyers and Cicilline, and 

all distinguished members of the Committee, thank you so much 

for having me back before your Committee today. Also, thank you 

for the special recognition of my aide-de-camp for the day, Cormac 

Augustine McDowell. It is an honor to be back here and also with 

this distinguished panel with Chairman Ohlhausen, Commissioner 

McSweeny, and Mr. Romano. 

So, I am a partner at Cooley LLP, and today, I am representing 

Mobile Future, where I am the Chief Public Policy Advisor. Mobile 

Future is a coalition of cutting-edge technology and communications companies and a diverse coalition of nonprofit organizations 

working to support an environment that encourages investment 

and innovation in the dynamic wireless sector, such as with 5G and 

the Internet of Things. 

During my 7 years as a commissioner of the Federal Communications Commission, from 2006 to 2013, I worked extensively on protecting an open and freedom-enhancing Internet, and testified before this Committee during many of the hearings that Mr. Conyers 

pointed out earlier. 

During the course of my work, I weighed the costs and benefits 

of ex-ante economic regulation of these markets versus ex-post enforcement of antitrust and competition laws. Each time I examined 

the facts and the law, I determined that ex-post enforcement 

worked far better for the dynamic and fast-paced Internet market 

than top-down ex-ante telecom regulation drawn from antiquated 

statutes. I was also inspired by the FTC’s unanimous and bipartisan report from 2007, which underscored the importance of avoiding unnecessary economic regulation in this space, and it prophetically warned against its likely unintended consequences. 

Indeed, bipartisan and light-touch Internet policies engendered 

during the Clinton-Gore administration worked incredibly well, 

making the Internet the greatest deregulatory success story of all 

time. Internet technologies proliferated faster than any other disruptive technology in history and are improving the human condition more and more each day as the direct result of flexible lighttouch public policy. 

But in 2015, the FCC radically departed from that long-standing 

bipartisan light-touch consensus when it voted three to two to classify broadband Internet access as a telecom service for the first 

time in U.S. history. In so doing, it imposed a 1934 law designed 

for phones that were held in two hands onto the complex and dynamic Internet, all while stripping the Federal Trade Commission 

of its ability to police the broadband market due to the common 

carrier exemption. 

As a result, investment in next-generation networks has been deterred, popular innovations, such as zero-rating offerings, have 

been discouraged, and the legal landscape has been thrown into a 


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state of confusion, especially when it comes to consumer privacy 

protection. 

The FCC is poised to reverse that error, however. Assuming it 

will rescind the title II Order, consumers, entrepreneurs, 

innovators, and investors alike should all know that American’s 

time-tested antitrust and competition laws stand at the ready to 

protect the Internet ecosphere and keep it vibrant, just as they did 

so well before the counterproductive 2015 Order. 

Both the Department of Justice, who is not here today, and the 

FTC have proven themselves to be highly effective cops on the beat 

throughout the complex Internet economy. 

Lastly, and perhaps most importantly, today it is my hope that 

when the FCC rescinds the title II Order, it will also reiterate that 

broadband Internet access is inherently an interstate service, 

which calls for exclusive Federal jurisdiction. 

The Commission should, therefore, preempt all State and local 

laws attempting to regulate broadband services, including those addressing privacy. Having a byzantine patchwork of state and local 

laws attempting to regulate the borderless and global Internet will 

wreak havoc on the digital economy, suffocate investment and innovation, confuse consumers, and encourage foreign governments and 

multilateral international bodies to respond in kind. 

Rescinding the title II Order with strong Federal preemption will 

simplify the regulatory landscape, provide certainty to all market 

players, and offer consumers one set of strong and clear Federal 

privacy protections administered by the one expert agency for privacy, the Federal Trade Commission. Thank you very much, and 

I look forward to your questions. 

Hon. McDowell’s written statement is available at the Committee 

or on the Committee Repository at: http://docs.house.gov/meetings/JU/JU05/20171101/106572/HHRG-115-JU05-WstateMcDowellR-20171101.pdf. 

Mr. MARINO. Thank you. We will now begin our 5 minutes of 

questioning, and the Chair recognizes the Chairman of the full Judiciary Committee, the gentleman from Virginia, Congressman 

Goodlatte. 

Chairman GOODLATTE. Thank you very much, Mr. Chairman. 

Welcome to all of these panelists. I think you have given us excellent testimony. Mr. McDowell, let me start with you. In your testimony, you discussed the regulatory whiplash that has resulted 

from the 2015 Order. Can you elaborate on that description, and 

compare what impact an ex-post antitrust approach would have on 

innovation and the Internet? 

Mr. MCDOWELL. What we mean by that is the ex-ante regulation 

can be translated in the vernacular as a mother-may-I. So, if you 

look at popular service offerings, such as zero-rating, consumers 

like zero-rating. It can benefit consumers. It can cost them less 

money for services and products. 

The FCC, initially, kind of gave a green light, or a cautious green 

light, that zero-rating was allowed under its 2015 Order, and then 

immediately after that, started to pull back from that, and question 

it, and wanted to see case-by-case what each offering of zero-rating 

entailed, whether or not they did like it. And that started to inhibit 

the offering of a very popular service. 


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So, that is part of the regulatory whiplash. And then, of course, 

we have this, you know, ping pong match that has gone on over 

the years throughout a large percentage of my career of the FCC 

issues an order, it goes up to the appellate courts, it comes back 

to the FCC, there is a surprise election, the FCC changes hands, 

there is going to be another order, maybe other appeals. And that 

is where I think it would be great for Congress to give some clarity, 

and ultimately, put this debate to rest. 

Chairman GOODLATTE. Mr. Romano, you used the example of 

rural call incompletion in your testimony to describe how certain 

anticompetitive conduct could also occur with respect to rural 

broadband providers. Can you elaborate more on those fears? 

Mr. ROMANO. Thank you, Chairman Goodlatte. Yes. So, rural call 

completion, for those that are not familiar with it, is essentially 

this notion of where we have seen instances of calls failing to reach 

rural America, where consumers and businesses cannot receive 

their calls that are placed by urban consumers or businesses. We 

cite that as a concern of where we think that there is a need for 

some limited involvement by the FCC. 

We have seen that in the past, the FCC has been very effective 

in that specific instance of where you are talking about interconnection of networks being able to delve into the problem, figure 

out who the actors are in the space, and helping to resolve the concern, so that service is restored. We think that is an example of the 

right kind of regulation, the right targeted, limited regulation that 

is handled on an ex-post basis, mind you, but allows somebody to 

jump in and be a cop on the beat, if you will, to address such concerns. 

Chairman GOODLATTE. Thank you. Commissioner Ohlhausen, 

what improvements, if any, should be made to the antitrust laws 

to ensure an open and competitive Internet marketplace? Should 

some sort of antiblocking or throttling or prioritization standards, 

or even categorical bans, be enacted, in your view? 

Ms. OHLHAUSEN. One of the first improvements I would recommend is to get rid of the common carrier exemption that the 

FTC is subject to, because I think that does create a lack of clarity. 

Certainly, the Department of Justice can bring enforcement actions, but I would recommend that. And then secondly, I think the 

antitrust laws have been able to address these kinds of behaviors 

in other markets. 

And so, I would be interested in hearing further proposals about 

what kind of changes, you know, Congress thinks would be appropriate here. I certainly have been supportive of the idea of the 

transparency requirement that the Internet service providers are 

subjected to. I think that creates a very good baseline, so that they 

are at least clear to consumers about what traffic-shaping behavior 

they may be engaging in. 

Chairman GOODLATTE. Thank you. And Commissioner 

McSweeny, critics of the antitrust law approach, such as yourself, 

assert that litigation can be expensive and that a resolution can 

take too long relative to the dispute at issue. However, how would 

you compare that to the expense of an FCC action or litigation 

under the Open Internet Order and the potential time it takes for 


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the FCC or courts to reach a resolution under the order? Is not that 

going to be an equally long and expensive process? 

Ms. MCSWEENY. Thank you for the question. I think from my 

perspective, I am primarily concerned about the impact of relying 

on an after-the-fact enforcement approach, as it relates—— 

Chairman GOODLATTE. I think that is critically where you and I 

disagree. You think you know ahead of time what you need to do 

to protect consumers, and I think that the dramatic competition 

that takes place on the Internet and new ideas is much better to 

figure out what consumers want, and then, let them decide, rather 

than you tell us ahead of time, because I think as former-Commissioner McDowell has pointed out, that has already begun to have 

a distortive effect on what is available on the Internet. 

Ms. MCSWEENY. I think what is really challenging is for entrepreneurs on the edge: app developers, the people who are generating the enormous demand for all of the wonderful innovation 

flowing from the Internet. If they cannot reach their audience, and 

they have to pay multiple fees—— 

Chairman GOODLATTE. But they can. 

Ms. MCSWEENY [continuing]. In order to connect with them—— 

Chairman GOODLATTE. But they can and do. 

Ms. MCSWEENY [continuing]. Then they will not be able to scale. 

And there is no remedy for that available to them under antitrust 

law. 

Chairman GOODLATTE. I get that. But they can, and they do. And 

there is just no evidence that what you are arguing is taking place. 

Ms. MCSWEENY. Well, they can, and they do because the status 

quo in the United States is an open Internet. 

Chairman GOODLATTE. Right. But it has been based upon free 

and open competition, not based upon an order that they have to 

look at just as much as the telecom providers have to look at, in 

terms of what the rules of the road are. And that is really, in my 

opinion, the camel’s nose under the tent in terms of what the FCC 

will do to regulate all aspects of the Internet, not just the 

broadband providers. Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. The Chair recognizes the gentleman 

from Michigan, Congressman Conyers, for his questions. 

Mr. CONYERS. Thank you, Mr. Chairman. I want to begin by asking unanimous consent to enter into the record a letter from the 

National Association of Realtors, a statement from Anant Raut, a 

visiting fellow on behalf of public knowledge on net neutrality and 

the role of antitrust, a letter from Consumer Union to you, Mr. 

Chairman, and Ranking Member Cicilline, and finally, a statement 

of four sentences by our colleague, Frank Pallone. 

Mr. MARINO. Without objection. 

These materials are made available at the Committee or on the 

Committee Repository at: http://docs.house.gov/meetings/JU/ 

JU05/20171101/106572/HHRG-115-JU05-20171101-SD003.pdf. 

Mr. CONYERS. Thank you. Commissioner McSweeny, please could 

you discuss with us the limitations of antitrust law in enforcing net 

neutrality principles? That is why we are here. 

Ms. MCSWEENY. Yes. I think setting aside the jurisdictional 

question that we have been discussing about whether the FTC even 

has appropriate jurisdiction under its statute, there are some real 


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challenges associated with relying on an antitrust enforcement approach because this conduct may be difficult to detect. The antitrust enforcement agencies may not have sufficient expertise in 

network management to fully understand certain types of conduct. 

And, of course, antitrust enforcement necessarily relies on a full 

investigation and approach that balances through the rule of reason analysis, both the harms but also the benefits of the activity 

and is focused primarily on economic values as opposed to noneconomic values, like speech and freedom of discourse. 

Finally, I think there is a real challenge associated with what 

remedies may be available. If you are an innovator on the edge, 

and you are seeking to connect to your audience, then you may 

have a really difficult time relying solely on antitrust laws as a 

remedy. If you can never afford to make all the payments that you 

need to make to get access to the customers in the first place, then 

antitrust law 5 years after that has happened is not going to be 

a very useful remedy for you. 

Mr. CONYERS. Here is what Frank Pallone, our colleague, a 

Ranking Member on House’s Energy and Commerce Committee 

said: ‘‘The FCC’s current net neutrality protections provide the 

strongest protections for free speech and innovation online and 

have been upheld by the court. Keeping these rules in place is the 

fastest and surest way to protect consumers. 

Unfortunately, the FCC is working to undo these protections at 

the behest of a few large corporations. I urge my colleagues to 

stand united in defense of these protections. That is the best option 

to ensure an open Internet into the future.’’ What do you think? 

Ms. MCSWEENY. I agree. 

Mr. CONYERS. Okay. What effect would rescinding the Open 

Internet Order have on investment and innovation in the entire 

Internet market? 

Ms. MCSWEENY. I think that is a really important question, one 

that would require probably additional investigation, except there 

is an extensive record that the FCC has already relied on and that 

has been before the courts considering the order as well that really 

points to this virtuous cycle, this cycle of innovation that is incredibly important. It generates demand for investment in the infrastructure. It generates demand for all of the new services on the 

edge. And what we risk here is undermining all of the economics 

of that cycle and all of the innovation that is generated by it. 

Mr. CONYERS. You know, some of have suggested that broadband 

providers do not have economic incentive to engage in discriminatory conduct because broadband markets are competitive, and consumers can switch easily among providers. What do you say? 

Ms. MCSWEENY. Well, most U.S. broadband markets are highly 

concentrated. Most consumers do not have a lot of choices when it 

comes to what providers to use. 

Mr. CONYERS. That is true. 

Ms. MCSWEENY. And finally, we do have a very serious challenge, I think, when it comes to relying on competition to solve the 

problems that could be generated by very large vertically integrated firms that have an incentive to interfere with their competitors. 


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Mr. CONYERS. Thank you, commissioner. I yield back the balance 

of my time. 

Mr. MARINO. Thank you. The Chair now recognizes the gentleman from Texas, Congressman Farenthold. 

Mr. FARENTHOLD. Thank you very much. I want to start out with 

the troubling case in the court right now that we may rule that 

AT&T is a common carrier even for their Internet service, which 

would take away the FCC’s jurisdiction. And I wanted to ask the 

members of our panel do you think Congress should act to remove 

that exemption or create specific exceptions or wait and see? We 

will start with Ms. Ohlhausen. 

Ms. OHLHAUSEN. The FTC on a unanimous bipartisan basis has 

long recommended that Congress remove common carrier exemption. So, I would continue to support the removal of that. 

Mr. FARENTHOLD. And Mr. Romano. 

Mr. ROMANO. Yes. I think this is one of these areas where Congress could indeed help out and provide clarity with the statute. 

Mr. FARENTHOLD. Ms. McSweeny, I know you are—— 

Ms. MCSWEENY. I agree. 

Mr. FARENTHOLD. All right. 

Mr. MCDOWELL. Without speaking directly to that case, but yes, 

mobile broadband, in particular the common carrier exemption, 

should be eliminated. 

Mr. FARENTHOLD. All right. Let’s talk a little bit about rural 

broadband for a second. Mr. Romano, correct me if I am wrong: 

most rural broadband is delivered by independent folks. I mean, we 

do not have the big boys going out into the smaller counties. 

Mr. ROMANO. As I mentioned, our average employee base for our 

membership is about 25 employees. 

Mr. FARENTHOLD. And do any of these companies generate massive content that they might want to prioritize over, you know, 

Netflix or Hulu? 

Mr. ROMANO. Not generally speaking. No, sir. 

Mr. FARENTHOLD. All right. And so, while I have you, I am going 

to kind of jump around here, and I apologize for that. You talked 

in your testimony with Mr. Goodlatte about some of the interconnect issues and call completions. Are you seeing some of the 

interconnect issues also in broadband, or is it just primarily in the 

voice service? 

Mr. ROMANO. The call completion issue has been distinct to voice 

service, Congressman. The question that arises in our mind, 

though, is 10 years ago we would not have thought call completion 

would be an issue. We want to have somebody who can be some 

cop on the beat to jump in should that problem arise. We do not 

think, however, firm, hard, ex-ante rules are appropriate for this. 

Mr. FARENTHOLD. But do not your rural broadband folks typically get their feed from fiber to go to some big pairing point somewhere? If that happens, could not they just switch to somebody else 

in that same pairing point and solve that? 

Mr. ROMANO. In many cases, Congressman, there may be multiple routes for interconnection; however, in other cases there are 

not, particularly in more rural States. It can be hard to—and distant, hundreds of miles away—to get to those interconnection 

points. 


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Mr. FARENTHOLD. All right. And Ms. McSweeny, you are kind of 

the lone pro net neutrality person on this panel. So, I want to visit 

with you for a second. I am concerned that if we adopt your preregulatory scheme that you are talking about, we actually make it 

harder for those innovators to get in because if you have got a new 

product that the regulations do not seem to contemplate, that is potentially a bar to entry too, is not it? 

Ms. MCSWEENY. Well, I think the innovators that I am worried 

about are generally innovators on the edge that are trying to enter 

the marketplace and connect with customers and scale very quickly. And, of course, they need to be able to do that without having 

to pay tolls to multiple companies. 

Mr. FARENTHOLD. Who is that happening to now? 

Ms. MCSWEENY. Well, we have the Open Internet Order in place 

now. So, we are protecting them. 

Mr. FARENTHOLD. Okay. Who was it happening to a year before 

the Open Internet Order? 

Ms. MCSWEENY. Well, again, I think the status quo of the United 

States has been the open Internet, which is why having rules to 

continue to protect it are very, very valuable. 

Mr. FARENTHOLD. Are not the Open Internet Rules then just a 

solution looking for a problem? 

Ms. MCSWEENY. They are an important preservation of the pipeline for innovation to customers and the Internet. So, I think that 

they are very critical in preserving all of the innovation that we 

have enjoyed from having principles that protect the open Internet. 

Mr. FARENTHOLD. All right. I want to go back to moving more of 

this over to the FCC, because a lot of the net neutrality rules deal 

specifically with who delivers the Internet to your house. And we 

have had some big discussions on privacy there. 

And if we move back to the FTC, the regulation is not just limited to say, as you will, the edge providers. You get the service providers too. I am as concerned about my ISP having my personallyidentifiable private information as I am with Google and Facebook 

and any other place that I happen to order a pair of shorts from. 

So, why do we need to divvy this up between so many people? Mr. 

McDowell? 

Mr. MCDOWELL. You raise an excellent point. Historically, the 

U.S. has had one expert agency to administer privacy regulation. 

That has been the Federal Trade Commission. It is a very complex 

issue. They have grappled with it beautifully. The FCC stumbled 

as it tried to implement that privacy order, and we need to revert 

jurisdiction back to the Federal Trade Commission. 

Mr. FARENTHOLD. I wish I had time to give the other folks an 

opportunity to answer this, but I see my time is expired, Mr. Chairman. 

Mr. MARINO. Thank you. The Chair recognizes the gentleman 

from Rhode Island, the Ranking Member of this Committee, Congressman Cicilline. 

Mr. CICILLINE. Thank you, Mr. Chairman. I think at the outset, 

it is important to note that when the Chairman of the full Committee said, you know, ‘‘Why is not it just up to consumers?’’ It is 

important to note that 22 million people commented on net neutrality or an open Internet. And overwhelmingly, consumers said 


SSpencer on DSKBBXCHB2PROD with HEARING
22 

we want an open Internet and net neutrality and support the rule. 

So, if we want to listen to consumers that is a good beginning 

point. 

I would like to begin with Commissioner Ohlhausen. You said in 

your testimony that these noncompetitive actions of throttling and 

blocking, et cetera, can be cured when consumers identify it, and 

they can switch to a provider. So, I guess the first question I have 

is, is this really realistic that an individual consumer would be able 

to determine when a broadband provider is throttling, blocking, or 

prioritizing content, and then make this very frictionless transition 

to another provider in the absence of competition in many places 

in our country, and the inability for just an individual to know 

that? 

So, does not your model or your response imagine this kind of 

myth that an individual consumer has the ability to detect all this 

stuff? Is not that why that notion of competition being the framework that will prevent this from happening just does not work? 

Ms. OHLHAUSEN. So, Mr. Cicilline, the edge providers who are 

trying to transmit this content to consumers have an enormous interest in making sure that that content or services are delivered. 

So, these are not individual consumers. They are some of the most 

powerful, well-funded companies in the United States. 

And so, often when there have been complaints that their traffic 

is being degraded, that certainly has gotten a lot of attention. They 

have a lot of incentive and ability to do that. As for switching, one 

of the issues that we have seen is the enormous growth in wireless 

broadband access. So, I think that we need to include in the market wireless providers. And so, switching has become a lot easier. 

Mr. CICILLINE. But to follow up on that, should consumers be 

forced to incur fees, delayed access to high-speed Internet, and the 

trouble of finding comparable broadband service, even if it exists, 

to remedy the harms of discriminatory conduct of broadband providers? Does not that shift the costs of this to the consumer? 

Ms. OHLHAUSEN. Well, the increased competition in the market, 

we have already seen that there are not fees for changing. Or if 

they are changing to a different provider, often that provider will 

pay the fees for them. 

Mr. CICILLINE. Okay. Commissioner McSweeny, would you respond to that? Do you agree? 

Ms. MCSWEENY. Well, I do agree. I am very concerned that we 

are shifting an enormous amount of the cost of this onto consumers 

who are not well-positioned, as you point out, to detect most of this 

conduct, and very often may either have little choice or, in some 

cases, may be in contracts that require them to pay additional fees 

in order to make a change. 

So, I see these markets as highly concentrated. I am very concerned about relying on just consumer demand and competition 

that may or may not exist in order to generate the results that we 

are hoping to have by having the Open Internet Order. 

Mr. CICILLINE. And Commissioner McSweeny, you said in your 

testimony something to the effect that broadband markets are 

highly concentrated and that competition alone will not provide the 

protection that I hope we all want. I am sure you heard the testimony of Commissioner Ohlhausen. I did not completely understand 


SSpencer on DSKBBXCHB2PROD with HEARING
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it, but the idea that we should look at competition, not just in 

terms of the way we look at competition normally, but some other 

analysis. Did that make any sense to you? 

Ms. MCSWEENY. Well, I think competition is a wonderful virtue. 

It is terrific in markets, but when we do not have very competitive 

markets, relying on an enforcement tool that is about preserving 

the competition or even trying to generate the competition can be 

a very imperfect tool. And that is why it is very well established 

that regulation is a complementary tool, as it is in this case, in 

order to ensure both the outcomes that we want, but also to make 

sure that consumers are protected and to make sure that noneconomic values, political discourse, freedom of speech, access to 

content, that kind of thing, are protected as well. 

Mr. CICILLINE. Thank you. My final question is for Commissioner 

Ohlhausen. Do you believe that paid prioritization is a form of exclusionary conduct under the antitrust law? 

Ms. OHLHAUSEN. I think it can be, but it is not necessarily in 

every case. It depends on the market power and the ability of other 

competitors to get into the market. But paid prioritization is common in other markets outside of broadband, as well. 

Mr. CICILLINE. And do you see any special danger of that being 

present in the Internet service provider sector? 

Ms. OHLHAUSEN. I think we need to examine each market very 

carefully, and my point about market competition is that we need 

to understand who all the competitors are in the marketplace to be 

able to make an accurate analysis of what the state of competition 

is in that market. 

Mr. CICILLINE. Thank you. I yield back, Mr. Chairman. 

Mr. MARINO. Thank you. The Chair now recognizes the gentleman from Colorado, Congressman Buck. 

Mr. BUCK. Thank you, Mr. Chairman. Mr. McDowell, I noticed 

that you twitched earlier when the Ranking Member asked Commissioner McSweeny a question, and I just want to give you the 

opportunity to answer that question. 

Mr. MCDOWELL. So, good thing I am not a poker player because, 

apparently, I have a terrible tell. 

Mr. BUCK. So, let me ask the question, and then you can answer 

it. How does that sound? The question was, ‘‘what is the effect of 

rescinding the Open Internet Regulations on investment and innovation of the Internet,’’ and you seemed anxious to answer that. So, 

I just wanted to give you that opportunity. 

Mr. MCDOWELL. Thank you. Yes. Actually, there are a number 

of studies out there showing an investment in broadband infrastructure has been deterred or stalled or slowed as a result of the 

2015 title II Order. So, we saw robust investment and innovation 

throughout all corners of the Internet ecosphere before the 2015 

Order. Whenever you introduce new rules in any context, investors 

have to first figure out what those rules are, and there is a pause 

at a minimum. 

As we start to approach the need to invest in 5G, which will be, 

by the way, a substitute for fixed wireline broadband. It will be 100 

times faster than 4G, and the Internet of Things, as well, investment needed there are hundreds of billions of dollars. We need to 

rollback ex-ante mother-may-I regulations. So actually, investors 


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the,—record at the FCC is replete with analyses from investors 

saying the best environment is the pre-2015 Order. 

Mr. BUCK. Thank you. Chairman Ohlhausen, it is my understanding that a number of States have indicated that they intend 

to impose regulation on network ISPs if the FCC rolls back the 

title II provisions. What should or can Congress do in that situation? And then, I want to ask you what can the FCC do? 

Ms. OHLHAUSEN. Well, Congress certainly, if it were to take this 

up as a legislative matter, could ensure that the Federal legislation 

preempted State actions in this space. 

Mr. BUCK. Okay. And what about the FCC? 

Ms. OHLHAUSEN. What the FCC could do? I believe the FCC has 

in other regulatory matters stated that it preempted State action 

in that space. 

Mr. BUCK. Mr. Romano, I represent a rural area of Colorado. 

And I have visited with a number of citizens and leaders in that 

area, and they are very concerned about the lack of broadband in 

rural Colorado. One of the primary concerns is that it is very difficult to have economic development in areas that do not have 

broadband. What can we do? What should Congress do? What can 

the government do to try to encourage universal broadband? 

Mr. ROMANO. Thank you for the question, Congressman. You do 

represent a very rural area. I think we have 15 members just in 

your area alone, in eastern Colorado. 

Mr. BUCK. I have heard from each of them. 

Mr. ROMANO. Us too. I would say three things. First of all, with 

respect to sort of the topic of this hearing, I think right size regulation, light-touch regulation is important. The effect on these companies, these small companies where they only have a handful of employees, of regulatory compliance costs can be significant on their 

operations, if not their investments. But just in managing the number of people they have to deal with and the kinds of markets they 

face, that is an important piece. 

A second piece would be looking more towards making sure that 

they can stay connected to urban markets; the interconnection 

issue I talked about. Making sure that the fact that they are far 

away from urban markets, that they can still get reasonably comparable broadband. That the costs of reaching those urban markets 

are taken care of or accounted for somehow, and what you have to 

charge a rural consumer is very important. 

And the third piece flows from that which is the universal service 

program. It is the best, most proven program ever put into place 

to promote rural networks which enable broadband. It is in a state 

of flux right now. Shoring up that program would do far more for 

rural broadband than any other proposal we have seen. 

Mr. BUCK. And what can Congress do to shore up that program? 

Because the feedback that I am getting is that the reimbursement 

rates are decreasing, and that as a result of that, many of these 

rural providers are reluctant to expand the programs that they now 

have. 

Mr. ROMANO. That is spot on, Congressman. The fact is that we 

are at levels of investment or recovery under the Universal Service 

Program that track back to 2010. We are being asked to do more 

and more to invest in broadband deeper and deeper into rural 


SSpencer on DSKBBXCHB2PROD with HEARING
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areas. I think everybody wants that. It simply cannot be done for 

the same price we used to compensate for telephone networks ages 

and ages ago. We are asking these networks to do more, but yet 

these companies are facing right now on average a 12 percent cut 

to their support because of the caps in that program. And it is undermining rural broadband investment and operations. 

Mr. BUCK. My time is up. I thank you very much. 

Mr. MARINO. Thank you. The Chair now recognizes the gentlewoman from the State of Washington, Congresswoman Jayapal. 

Ms. JAYAPAL. Thank you so much, Mr. Chairman. And thank you 

all for your testimony and for your service. The Internet should be 

free from discrimination against users and preserve choice and opportunity of communication for everyone. That is my basic belief. 

In my hometown of Seattle, believe it or not, my constituents still 

experience the consequences of a lack of competition among Internet providers. 

Even though we have six broadband providers, their coverage 

areas do not overlap, and result in slower speeds and higher prices 

for my constituents. So, the consequences of media consolidation 

loom large. And increasingly with entities which create content, 

also distributing content, I worry that full promise of greater 

choices and lower cost to consumers stands to be reversed. 

Can it be clearly said that companies that create and distribute 

content have a vested interest in ensuring that their consumers 

have access to their products first? We need to dig deeper into the 

realities of a world where as of a few years ago, just 2011, 90 percent of the American media was controlled by just half a dozen 

companies. Compare that to 1983, when 90 percent was owned by 

50 companies. And nationwide, 62 million Americans in urban 

areas and 16 million in rural areas cannot access fast Internet. 

And it is a serious issue, given how much the Internet is ingrained into our lives. More and more, you cannot apply for a job 

unless you have access to the Internet. You cannot pay bills or 

even check your kids’ grades, as I found out when everything went 

online, in terms of checking what was going on with my son. So, 

it is clear that there is much work to be done, especially in light 

of ongoing efforts to undermine net neutrality. 

And so, while I am pleased that we are holding a hearing on this 

critical issue, I am simply not convinced yet that antitrust enforcement alone is sufficient to protect consumers. And particularly on 

noneconomic issues like free speech, on throttling, blocking, or 

prioritizing content, and of questions that, Ms. McSweeny, you 

raised in your testimony or your answers around prevention versus 

remedy. 

So, in the process that led up to the 2015 Internet Order and 

again this year, there was tremendous input from consumers to the 

FCC, civil rights groups, musicians, independent filmmakers, arts 

organizations, and many expressed concerns about free expression 

and viewpoint diversity. And yesterday, in The New York Times, 

comedian Kamau Bell wrote about the impact of net neutrality on 

artists. And I will just quote him. 

He says, ‘‘This fair Internet, where everyone from an amateur comedian to a celebrity to a huge media company plays by the same 

rules, means you do not need a lot of money or the backing of 


SSpencer on DSKBBXCHB2PROD with HEARING
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someone with power to share your content with the world.’’ Mr. 

Chairman, I ask unanimous consent to enter this op-ed into the 

record. 

Mr. MARINO. Without objection. 

This material is available at the Committee or on the Committee 

Repository at: http://docs.house.gov/meetings/JU/JU05/ 

20171101/106572/HHRG-115-JU05-20171101-SD005.pdf. 

Ms. JAYAPAL. Thank you. Ms. McSweeny, since the FTC typically 

views such concerns as outside of its jurisdiction, how would antitrust law have to be expanded and modified to address those concerns? 

Ms. MCSWEENY. Well, I think one of the questions that I would 

ask about whether we wanted to expand antitrust law to reach 

noneconomic concerns would be whether we really want to take a 

set of tools that is designed to protect competition and consumers 

in the marketplace and expand it outward, especially when we 

have an expert regulator, the Federal Communications Commission, that already has expertise and a public interest mandate on 

this beat. 

So, I would argue that we can get the job done by using the tools 

the Federal Communication Commission has and by perhaps expanding and complementing the FCC’s jurisdiction with the FTC as 

a backup. But I do not think it is necessary for this to be an either/ 

or premise. 

So, yes, there are ways we could expand antitrust law that I 

think, in my view, would be very helpful in promoting competition; 

not just protecting net neutrality, but promoting competition generally in the marketplace and online as well. And it would be helpful maybe in protecting consumers, but we already have an expert 

agency with an extensive record that has proceeded in putting in 

place very clear rules to protect the open Internet. 

Ms. JAYAPAL. And Mr. Romano, in your testimony, in your written testimony, you seem to indicate that you do believe that there 

is some role for both the FTC and the FCC in regulation. And, in 

fact, if I read this correctly, you seem to be more concerned about 

who is being regulated rather than the regulation itself. 

So, you are asking for regulation around access of network providers. You are saying do not just put it all on the ISPs. Put it on 

the network providers for accessibility. But can you clarify? Do you 

support complete repeal of the 2015 Open Internet Order? 

Mr. ROMANO. It is hard to say, with respect to a 300-page order, 

that there is nothing in there that we like. However, what I would 

say is that the rules that were adopted in 2015—and we’re companies that have operated under title II for years, perhaps the most 

heavily regulated is local telephone companies historically. Although today, of course, they are broadband providers, primarily. 

The issue I think we have with the 2015 Order is more that it 

took title II, and it did not just take title II in a way that we were 

used to. It re-wrote some of the rules and frameworks in a way 

that no one was used to. So, for example, in the privacy space, the 

CPNI rules that were under the FCC’s section 222 mandate in the 

Communications Act, we were used to operating under those as 

telephone companies, with respect to telecommunications information. The way in which those were rewritten to gather all sorts of 


SSpencer on DSKBBXCHB2PROD with HEARING
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information that not only telephone companies or broadband providers have, but also sweep in stuff that other people have, we just 

did not see that as being sort of a logical outgrowth of what title 

II had been. 

Ms. JAYAPAL. But to be clear, repealing the order completely 

would potentially have tremendous disastrous consequences for 

rural areas, and I think the point that Ms. McSweeny was making 

about competition, it is difficult sometimes to get competition to operate in rural areas and places where there are not as many consumers, where there is not as much money to be made. And so, I 

yield back, Mr. Chairman. 

But just wanted to say that I think there is a lot more nuance 

to this than simply repealing an order that would produce—than 

saying we should repeal the order, and it would produce benefits. 

I think there is great harm to be done. Thank you, Mr. Chairman. 

I yield back. 

Mr. MARINO. Thank you. The Chair recognizes the gentlemen 

from Georgia, Congressman Collins. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate it. I think 

that was an interesting exchange, and I appreciate my friend from 

Washington in discussing that, because I think it really goes back 

into the role of what antitrust is and what antitrust is not. And 

I think Ms. McSweeny, that your answer there really sort of gave 

an interesting insight into why I think this Committee is so relevant, not only in this discussion, but other discussions that we can 

have in this because the question really becomes in a certain situation is what are we using antitrust for? 

Are we trying to go out of everything that FCC already currently 

can do, and are we trying to expand it? Or are we simply trying 

to look at it from a perspective. What the big debate has become 

is, what is this role of antitrust? Is it to solve all of these ills of 

big companies and little companies, or is to make sure that there 

is a level playing field, that there is access to markets, there is access to it, which is traditional antitrust? 

Just because someone is big does not mean that they are bad. 

And I think you can look at many companies coming from many 

different States that they are not acting in an antitrust violation. 

They are just large. They have made that precision. So, I think it 

is interesting for me this discussion, but I disagree. I am glad that 

it is looking to be rolled back, and I think that is a positive step 

in letting the trust side of it be dealt with. 

And I think we can have more hearings in this regard. But 

Chairman, I do have a question for you, madam, is, and we have 

talked about this before, but under the FCC’s Open Internet Order, 

paid prioritization is prohibited, per se, in a sense. Would you consider paid prioritization to be vertical restraint in the context of 

antitrust law? 

Ms. OHLHAUSEN. Paid prioritization certainly is a vertical restraint, but that does not mean that it is anticompetitive or makes 

consumers or competition worse off. 

Mr. COLLINS. Okay. And I say how well situated would be, as the 

FTC, with dealing with strictly antitrust here, FTC to analyze 

vertical restraints and their impact on this in this environment? 


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Ms. OHLHAUSEN. I think we are very well-positioned, and I actually want to bring the Committee’s attention to recent cases that 

the FTC has brought against companies that have foreclosed rival 

content in a way that has hurt competition. So, we have the 

Realcomp case from 2009 and a recent case against 1–800 Contacts, which I will not say any more about, because it will be appealed to the Commission. But it is an area, foreclosing rival content in a way that is anticompetitive that we have brought action, 

and we certainly have the tools to continue. 

Mr. COLLINS. And when I think in expanding that out for a just 

minute, and I think I have heard from others, and I have read your 

opinions, what would be the long-term effects of ex-ante or per se 

prohibition on this paid prioritization? 

Ms. OHLHAUSEN. My concern is that the long-term effects is to 

stifle innovation. We do not know what new technologies might be 

out there, and as we move to a world of the Internet of Things with 

so many connected devices, the ability to transmit some of that 

traffic in a way that has prioritization may be enormously beneficial when you think about things like connected cars or telemedicine. 

So, my concern is about freezing the Internet to the way that it 

looks today. And as we go back to the 2007 report, one of the biggest changes we have seen is the explosion of mobile Internet access. 

Mr. COLLINS. One of the things in following up on that really 

where we have gotten to in the Internet today has been because 

there has been that freedom. There has been that, you know, to 

work within a current system as we go forward. 

Ms. McSweeny, I just do have one question. It is my understanding that you have testified that you support the Open Internet Order as it is, correct? Including its ex-ante per se prohibition 

on paid prioritization, is that correct? 

Ms. MCSWEENY. Yes, that is correct. If I could just add, though, 

on this specialized services question, innovation around telemedicine and Internet of Things, that kind of thing, I believe—and I am 

not the FCC, so please ask them—but it has contemplated already 

in the Open Internet Order that waivers and such can be granted 

for that kind of innovation. So, I do not see this order as foreclosing 

that at all. 

Mr. COLLINS. Okay. If some are starting to maybe just going off 

this in a different aspect of the Internet ecosystem, from your perspective, would you support, you know, it is like including edge provider support in ex-ante regulation there is, as well as relying on 

market forces and antitrust enforcement. Would that be something? 

Ms. MCSWEENY. You know, I think it is a really interesting question. Many are arguing that the ISPs should have the same set of 

rules as edge technology companies, especially the very, very large 

platforms that are having a huge impact on the marketplace, but 

also in our daily lives. And I think one of the really important 

questions here is what are those impacts? How much power do 

those companies have? And if they are very powerful, like today’s 

ISPs in the highly-concentrated broadband markets, then we 


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should be having a conversation about whether our antitrust tools 

are sufficient. 

Mr. COLLINS. Well, I think that is going to become the honest 

question that we are having now, and unfortunately, I have seen 

this before, big bad, small good. We got to get out of that and go 

back to what antitrust is actually supposed to look like. 

But I cannot let this go, Mr. Chairman, without also saying for 

those of us in rural areas, northeast Georgia for mine, when you 

have players who are supposed to be providing broadband access, 

and they are not. They are using their CAT funds and other things 

to do other things such as they are in my area, this is just, you 

know, prohibiting it out. That is why we are looking at other acts 

of the GO Act and other things to actually provide broadband services to rural areas and get competition into the marketplace. And 

with that, Mr. Chairman, I yield back. 

Mr. MARINO. Thank you. The Chair recognizes the gentleman 

from Georgia, Congressman Johnson. 

Mr. JOHNSON of Georgia. Thank you, Mr. Chairman. Do any of 

you or do all of you support the concept of an open Internet and 

the principles of no blocking, no throttling, and no paid 

prioritization? Do you all support that concept? Ms. Ohlhausen, yes 

or no? 

Ms. OHLHAUSEN. I support an open Internet, but I would not 

support a per se prohibition on paid—— 

Mr. JOHNSON of Georgia. Ms. McSweeny. 

Ms. MCSWEENY. I support the open Internet as contemplated in 

the 2015 Open Internet Order. 

Mr. JOHNSON of Georgia. All right. And Mr. McDowell? 

Mr. MCDOWELL. I support an open Internet, but it also depends 

for each of those. For instance, blocking of a child porn site. That 

should be allowed, right? 

Mr. JOHNSON of Georgia. Well, it is already allowed under the 

2015 Order. Is it not? 

Mr. MCDOWELL. There are many exceptions. I just wanted to 

make sure that we talked about exceptions, and each of those are 

important. 

Mr. JOHNSON of Georgia. Well, yeah, of course, subject to those 

exceptions. So, you support, Mr. McDowell, principles of no blocking, no throttling, no paid prioritization? 

Mr. MCDOWELL. All those can have benefits. So, paid 

prioritization—— 

Mr. JOHNSON of Georgia. Yes or no? 

Mr. MCDOWELL. By the way, paid prioritization in the context of 

title II, there is a myth out there that title II would prohibit that. 

Actually, title II—— 

Mr. JOHNSON of Georgia. It is a real simple question. 

Mr. MCDOWELL [continuing]. Permits paid prioritization. Actually, it gets very complicated very quickly. 

Mr. JOHNSON of Georgia. Well, I understand. Okay. You do not 

want to answer yes or no to the question. 

Mr. MCDOWELL. Because it is complicated and nuanced. 

Mr. JOHNSON of Georgia. Well, Mr. Romano and Ms. Ohlhausen 

were quite clear, and I was just wanting to—— 


SSpencer on DSKBBXCHB2PROD with HEARING
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Mr. MCDOWELL. Well, they are looking at it through the antitrust lens, and I am looking at it through the FCC lens. 

Mr. JOHNSON of Georgia. All right. Well, let me ask this question. Do you believe, Mr. McDowell, that in order for there to be 

an open Internet——and I am just going to assume for purposes of 

this question that you do support an open Internet. 

Mr. MCDOWELL. Absolutely. 

Mr. JOHNSON of Georgia. Do you believe that there should be 

rules or regulations or legislation that guarantees that concept? 

Mr. MCDOWELL. I would love to see Congress in this debate, this 

back and forth, and pass new legislation that could support an 

open Internet and where we would have a win-win-win situation 

for all the players involved. Yes, sir. 

Mr. JOHNSON of Georgia. What about you, Ms. Ohlhausen? 

Ms. OHLHAUSEN. Well, I really think it depends on what that legislation looks like, but I certainly would be, you know, encouraged 

by Congress taking this on as an issue and opening it up to further 

debate. 

Mr. JOHNSON of Georgia. Do you think Congress would be better 

equipped to deal with this issue than would the FCC or the FTC? 

Ms. OHLHAUSEN. I think it depends on what the legislation 

looked like, because I would hope it would contemplate a continuing role for the FTC going forward. 

Mr. JOHNSON of Georgia. I see. Okay. Thank you. What about 

you Mr. Romano? 

Mr. ROMANO. I think the term, Congressman, that I used in my 

testimony was regulatory pendulum swinging, and to the extent 

that Congress could help bring an end to that, I think that all involved would benefit greatly. The details of the legislation are important, but to the extent that something authoritative that assigns divisions of labor in the right way to the respective agencies 

based upon informed judgement of this body, I think would be welcomed. 

Mr. JOHNSON of Georgia. Ms. McSweeny, what is your response? 

Ms. MCSWEENY. Well, I support the 2015 FCC Open Internet 

Order, so I would want to look very carefully at what was being 

proposed. I think there are ways to strengthen the FTC that would 

be helpful. But so far, the action that we have seen in this Congress has been harmful to consumers. The repeal of the Broadband 

Privacy Rule, in my view, was very harmful to consumers, because 

it eliminated the consumer choice around how their information is 

monetized and used. And we do not have current authority at the 

FTC to step in and protect consumers. 

So, I would want to look very carefully at whatever was proposed, and make sure that we were appropriately protecting the 

open Internet and consumers and competition. 

Mr. JOHNSON of Georgia. Mr. McDowell, your response to Ms. 

McSweeny? 

Mr. MCDOWELL. Thank you. So, first of all, the FCC’s privacy 

rules never went into effect. While broadband is still classified as 

a telecom service, which as of this moment, it still is, section 222 

of the FCC’s rules apply. But the best way to get consumer privacy 

protection is to get the best cop on the beat on privacy, the Federal 


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31 

Trade Commission, back on the beat. And that would be to return 

it to its information service categorization. 

Mr. JOHNSON of Georgia. So, you believe the FTC is better 

equipped to deal with this issue of open Internet than would be the 

FCC? 

Mr. MCDOWELL. Privacy and the open Internet. These are competitive issues, inherently. These are section 5 issues, inherently. 

Mr. JOHNSON of Georgia. Ms. McSweeny, do you see it that way? 

Ms. MCSWEENY. I do not because I think, as we have been discussing, there is an expert agency, the Federal Communications 

Commission, that is protecting both consumers and competition 

and the open Internet with its authorities, and it should be doing 

that. The FTC is a generalist antitrust and consumer protection enforcer. 

And yes, we are very good at trying to bring cases to protect consumers’ privacy, but we have on a bipartisan basis for years requested additional authorities to better secure consumer data. I 

think that is necessary, and I think there is nothing that forecloses 

an expert regulator like the FCC using its authorities to also protect consumers’ privacy. 

I do not hear Americans out there thinking they need less protection from exploitation of their information. I hear them asking for 

more. 

Mr. JOHNSON of Georgia. Thank you, and I yield back. 

Mr. MARINO. Thank you. The Chair now recognizes the gentleman from Texas, Congressman Ratcliffe. 

Mr. RATCLIFFE. Thank you, Mr. Chairman. As I have listened to 

the testimony and the questions today, it strikes me that I think 

this hearing is emblematic of the larger ideological debate between 

those that believe in a blanket one-size-fits-all approach to regulation and commerce, versus those that believe that a free market 

buffeted by reasonable antitrust protections provides a better 

framework and better access for consumers. 

I certainly fall into the free market camp, because I think even 

if it is well-intentioned, the overly zealous approach of regulatory 

overreach often just equates to a solution in search of a problem. 

And so, to that point, I want to start with you, Commissioner 

McSweeny, because in 2007, the FTC issued a report that said and 

concluded that antitrust laws were sufficient to protect against 

anticompetitive actions on the Internet and also concluded that additional regulations would likely do more harm than good. So, my 

question to you is what has changed since 2007? 

Ms. MCSWEENY. Well, a lot has changed since 2007. That was a 

decade ago. The technology was wildly different. iPhones were relatively new. I think I got my first iPhone in 2008. 

Maybe I was not an early adopter, but I think what we are talking about here 10 years later is still a highly-dynamic, very innovative ecosystem that is rapidly changing, but that has relied fundamentally on the principles that are enshrined in the FCC’s order. 

We have been aggressively trying to protect that pipeline of innovation for more than a decade, as I am sure Mr. McDowell can talk 

about. 


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Mr. RATCLIFFE. I appreciate that. Let me reclaim my time on 

that. I want to give Ms. Ohlhausen a chance to respond to that line 

of thinking, with respect to the FCC’s conclusions in 2007. 

Ms. OHLHAUSEN. What I have seen change from 2007 to now is 

in quite a shift towards greater competition in these markets. So, 

wireless broadband providers now provide speeds greater than 

what wired broadband providers provided in 2007. We have four 

wireless broadband providers nationally. I mentioned improving 

speeds. We have seen this expansion of mobile broadband and vigorous pricing competition. So, competition has grown since that 

time period. 

Mr. RATCLIFFE. Terrific. Thank you. Mr. McDowell, Congressman 

Buck had a number of questions to you about rolling back title II 

provisions, and I read with interest your testimony about the Internet, calling it the greatest deregulatory success story of all time. 

And I agree with you that a light-touch regulatory framework is 

the ideal approach to any dynamic industry. And I certainly see the 

2015 FCC Order as rolling back that longstanding approach. 

I am curious what your perspectives are. If the FCC had imposed 

that sweeping net neutrality order back in the 1990s, what do you 

think Internet access and connectivity would look like today? In 

other words, would it be safe to say that costs would largely be 

higher, and access to connectivity would largely be reduced? 

Mr. MCDOWELL. So, I am sorry. Just to make sure I understand 

your question: you talked about net neutrality order from the 

1990s. Do you mean in terms of treating broadband or Internet access back in the 1990s under the Clinton-Gore administration? 

Okay. 

So, that was the continuation of many proceedings among both 

Republican and Democratic administrations to treat information 

services, essentially computer-to-computer communications, as 

something called an information service or an enhanced service 

back in the day. And that would not be common carriage under 

title II. 

So, that set the stage, when the Internet was privatized in the 

mid-1990s—when it migrated further away from government control—that set the stage for, I think, the largest explosion of entrepreneurial brilliance in world history in all corners of the Internet 

ecosphere. And it was led right here in the United States of America. 

This was an American phenomenon, which spread throughout 

the world. So, that is what we want to preserve. That is the openness and the pro-competition, the pro-investment, the pro-innovation and ultimately, the pro-consumer environment that we want 

to revert back to. 

Mr. RATCLIFFE. Terrific. Thank you. My time is about to expire, 

but Mr. Romano, I did want to ask you. You know, you raised concerns about the FCC’s Open Internet Order as singling out retail 

broadband providers with which you called ill-fitting regulations 

and one-sided duties. Regarding the one-sided duties that were imposed on retail Internet service providers, can you elaborate for me 

and for everyone how this has affected small and rural providers 

because as you know, that is a big part of my district? 


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Mr. ROMANO. Absolutely, Congressman. Thank you for the question. So, a couple of things do jump to mind. Immediately first is 

the privacy regulation we talked about earlier, which was poised to 

take effect and would have put our small companies serving very 

rural areas in the position of having greater protections with respect to the same data that some of the largest edge providers in 

the world hold. And they would have been subject to different rules 

and that whatever the rules are that need to be put into place to 

govern that data, we wanted the same rules put into place to govern everybody who holds that data. 

That has an impact, obviously, on their operations in the sense 

that they have to take additional steps, practices, procedures to put 

into place to comply with the new privacy rules that were different 

than even the telecom privacy rules in place before it. 

Mr. RATCLIFFE. Thank you. Mr. Chairman, I appreciate the indulgence. I yield back. 

Mr. MARINO. Thank you. The Chair now recognizes the gentleman from California, Congressman Issa. 

Mr. ISSA. Thank you, Mr. Chairman. I am sorry the gentlelady 

from Washington State has left, because it seemed like Seattle is 

a bastion of no communication choices that apparently Amazon and 

Microsoft are unable to generate enough bandwidth in that area to 

quite an underserved area. But having said that, I would like to 

concentrate on an assumption of monopoly for a moment. We were 

talking earlier, quite a while earlier, about getting rid of the common carrier exemption. 

And I will start, and I will go down the road quickly, because I 

know this is probably an area that unites us. If we could not eliminate it completely, would it do a great service to bifurcate the exemption? In other words, as a common carrier, you are still excluded. But to the extent that you provide any products or glean 

any economic benefit other than as a common carrier—for example, 

you own part of some other content supplier and the like—that you 

would automatically not be covered by the exemption. Would that 

do most of the good you need to deal with? 

Ms. OHLHAUSEN. It would take care of some of it, but not all of 

it. But it still leaves open the possibility that the FCC could classify wide swaths of the communications network as a common carrier service and cut the FTC out of oversight. 

Mr. ISSA. Okay. So, your concern is to the extent that you would 

be cut out. So, legislation should be such that you not be precluded 

from doing in one section of the communication delivery system 

what you would be able to do in another? 

Ms. OHLHAUSEN. That is correct, and it is particularly acute for 

consumer protection, because at least the Department of Justice, 

which also shares antitrust oversight, is not subject to the common 

carrier—— 

Mr. ISSA. And you often do a one-two with the Department of 

Justice? 

Ms. OHLHAUSEN. That is correct. 

Mr. ISSA. Is that pretty much within an answer for all that that 

limitation is to? Well, go ahead, Ms. McSweeny. 

Ms. MCSWEENY. I would support a clean repeal of the common 

carrier—— 


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Mr. ISSA. No, I understand that you would like to have potentially a clean repeal. I am saying that it is pretty clear that when 

people are complaining, let’s say, about Comcast, Cox, whoever it 

happens to be, they are always talking about not—and I am going 

to get to the other part in a moment—the throttling or the 

prioritization only, which I know you are. But they are complaining 

particularly about their products and services, which may be 

prioritized. That has been a big part of the discussion. 

Certainly, I will go to Mr. McDowell. It was something that was 

justifying the FCC’s action was the theory that it was their products and services that were being prioritized over somebody else’s 

in an anticompetitive way. Would that be fair? 

Mr. MCDOWELL. Yes. I think your question is very intriguing, all 

the questions embedded there, because what you are putting your 

finger on is convergence in the marketplace. So, we have tech companies and communications companies, wireless companies, and 

telecom companies, all with thousands of miles of fiber, using radio 

frequencies, connecting servers and routers all over the country, all 

over the world, that are flooded with a slurry of ones and zeros. 

And I have just described a plethora of business plans here. But 

these old statutes, especially the Communications Act from 1934, 

tries to impose these silos, these regulatory silos, depending upon 

the flavor of the moment or who is politically favored or not. And 

that is why precisely, I think Congress needs to act. 

Mr. ISSA. Well then, and Commissioner Ohlhausen, let me take 

something that is within your purview and compare it to the discussion of the day. If you are in a small town, and Safeway is the 

only grocery store, within Safeway, they have decided that each 

endcap, each row, is going to be sold to whoever will pay the most: 

Pepsi, Coke, whoever. That is certainly a prioritization that is paid 

for in a, in this case, an exclusive opportunity to buy within, let’s 

say, 50 miles. Would you see that as something where you would 

come in under antitrust? 

Ms. OHLHAUSEN. It really depends. 

Mr. ISSA. But it happens every day in America, and you do not 

come in. 

Ms. OHLHAUSEN. Exactly. It is very common. Paid prioritization 

is extremely common through all markets through the economy. 

Mr. ISSA. Okay. So, the test, and you said depends, and I think 

this is important, and I want give Ms. McSweeny an opportunity 

for this sort of a discussion. Paid prioritization is an economic 

model that actually allows other people down the road to get a different price. The same would be true of a newspaper or magazine. 

They sell locations in their magazines at premium. The back cover 

is not randomly selected. It is paid for as a premium. And within 

that market, the relevant market, if you will, of a magazine, the 

magazine has 100 percent market share. So, every day, buyers and 

sellers make these decisions, and as long as you do not see an unfair monopolistic—in other words, they do not pass the other tests 

that exist under antitrust—we look at those and say that particular behavior is okay in this example. Correct? 

Ms. OHLHAUSEN. Absolutely correct. 

Mr. ISSA. So, Ms. McSweeny, you obviously have a little bit more 

of a command and control. You would like to cure all the evils of 


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society through these various regulatory processes, including that 

everyone should come for an exemption if they somehow have a 

medical device that needs a priority and hope that the government 

will give it to them. And I am not trying to be snide, but that is 

what I heard you say. 

So, listening to the Chairwoman, is not it true that, in fact, we 

do have to recognize that the provisions of antitrust over the many 

decades have been the abuse of these otherwise available privileges, such as prioritization and so on of one’s product, and that 

what you have proposed—which is that you go to government when 

you want to have an exception, rather than you do your business 

and a series of tests—will determine whether or not you have 

crossed the line, not just based on a behavior but based on market 

share and intent. Correct? 

Ms. MCSWEENY. Well, here is the difference. It is very well established in antitrust law, and there is bipartisan support for this, 

that when we have highly concentrated industries, especially when 

there is vertical integration of the incumbents, that clear ex-ante 

rules to prohibit certain conduct is required. 

So, for example, my agency just earlier this year sent a very nice 

comment to FRT, which looks at this in energy generation markets 

supporting clear ex-ante rules because simply relying on antitrust 

enforcement is not sufficient. So, I do not think it is a controversial 

concept when you are dealing with this kind of question to have an 

antitrust enforcement agency say, ‘‘Look, there are limitation to 

how we can step in here.’’ 

Mr. ISSA. Since I am last, I would like to let the Chairwoman respond because I think that although what Ms. McSweeny is saying 

is true, is not it true that, in fact, giving over to the FCC, as the 

last administration did, they actually preempted you. It was not 

like you were saying your regulations are complementary. What 

they really said was to the Federal Trade Commission and to a certain extent Department of Justice, ‘‘You sit on the sidelines. We are 

going to determine winners and losers, and they have to come to 

us for permission if they need a private network or they need 

prioritization for anything, including a lifesaving procedure.’’ Is not 

that true? 

Ms. MCSWEENY. Indeed. In fact, the Open Internet Order stated 

that competition in the marketplace, even if there was competition 

in the marketplace, that was not going to be sufficient. I also just 

want to mention that electricity networks are very much a unique 

case, right, where you have a true, natural monopoly. They are a 

monopoly provider. I would point the Committee’s attention to the 

FTC’s staff report from 2007 that looked at this particular market 

and said that competition and antitrust law and consumer protection were the appropriate tools. 

Mr. ISSA. Thank you. Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. This concludes today’s hearing. I want 

to thank all the witnesses for attending. And without objection, all 

members will have 5 legislative days to submit additional written 

questions for the record and submit additional materials for the 

record as well. Thank you very much. 

[Whereupon, at 12:21 p.m., the Subcommittee adjourned.] 


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