The Department of Justice's Antitrust Division weighed in on the network neutrality debate in an ex parte brief to the FCC Thursday, arguing against any regulations of service providers' ability to charge higher prices for priority service. The DOJ asserted that consumers would actually be worse off if providers were prohibited from charging websites for speedier content transmission, because such fees would incentivize and offset the costs of expanding network capacities, which would otherwise be borne entirely by consumers. The Justice Department said it preferred to handle any antitrust problems as they came up, not to preemptively regulate the market.
The brief urged the FCC not to "substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws." The Antitrust Division's comments don't, however, address the fact that most jurisdictions only have two options for internet access, DSL or Cable, so consumers can't simply switch providers if one ISP adopts an unfavorable policy. Relying on a competitive market only works where you have a competitive market. And it's unclear how allowing ISPs to wring more profit from the scarcity of their bandwidth will encourage them to build out more capacity and thus diminish wait times for non-priority service. The brief also pointed out that the FCC has been able to deal individually with the relatively few cases of anticompetitive content discrimination over the internet, such as one rural telcom who blocked VoIP access to a competitor.
The FCC's public comment period on the network neutrality question ended in April, leaving one to wonder why the DOJ waited until now to offer its two cents.