Corporate & Securities Law

Of course, if a monopolist engages in activity that amounted to exclusionary conduct and threatened consumer welfare, it certainly would be within the domain of antitrust enforcement.  Thus,  this sounds more like the DOJ asserting that business conduct violating net neutrality principles isn’t an antitrust problem because there is no harm to competition.   In other words, the DOJ is free to enforce the antitrust laws against the anticompetitive behavior, i.e. conduct characterized by the exercise, maintenance or acquisition of monopoly power to the detriment of consumers; what they cannot do is enforce those laws against behavior that is not anticompetitive.

I’m quite sure that is not the message Waxman intended to send.

Proponents of net neutrality are certainly free to (and in fact do) argue that net neutrality is justified on other (non-consumer welfare) grounds or even at the cost of reducing consumer welfare.   But many net neutrality arguments are framed in terms of precisely the types of competitive harms that would be actionable under the antitrust laws if there were proof.    It strikes me that the minimal discipline imposed by antitrust  in requiring some proof that consumers might be harmed would provide at least some safeguard against regulation might impose substantial welfare losses for consumers.