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may be the better choice due to its independence and its dual role in our government. 225 The FTC is a federal regulatory agency devoted to enforcing both competition and consumer protection laws within the United States. 226 It is an independent regulatory agency that is governed by a five commissioners, with no more than three from each political party, each nominated for seven-year terms.227 It has a broad base of specialized experience in antitrust enforcement and consumer protection that would be directly relevant to protecting the rights of consumers who receive Internet service from one of the participating ISPs. Further, the FTC possesses additional authority under Section 5 of the FTC Act to investigate the Copyright Alert System as a potential unfair trade practice in addition to a violation of the Sherman Act. 228 The independent nature of the FTC would insulate it from the political pressures applied by the various groups affected by the agreement and lend credibility to the system as a whole. By initiating an investigation, the FTC has the ability to review the operations of the CCI, the independent groups selected to enforce the due process provisions, and the various individual parties to the agreement. Through the use of this oversight authority, the FTC can ensure that the infringement identification systems implemented will fairly serve the goals of the agreement without causing significant consumer harm. Furthermore, the FTC can work with the parties to correct the deficiencies identified in the due process provisions. Any proposed settlement between the FTC and the individual parties would be subject to an open notice and comment period before implementation, 229 giving both industry and the public an opportunity to weigh in on the final system. Finally, the involvement of
225
Normally the Federal Trade Commission does not have jurisdiction over entities that are governed by the Federal Communications Commission under the latter’s common-carrier or cable television regulations. Internet service, however, is only regulated under the FCC’s ancillary jurisdiction under Title I of the Communications Act of 1934, and as such does not appear to be exempted from the FTC’s antitrust authority. 226 About the Federal Trade Commission, FTC, http://www.ftc.gov/ftc/about.shtm (last visited May 17, 2012). 227 Commissioners, FTC, http://www.ftc.gov/commissioners/index.shtml (last visited May 17, 2012). 228 See 15 U.S.C. § 45 (2006). 229 16 C.F.R. § 2.34(c) (2012).