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Communications Daily – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Communications Daily in a story about the Supreme Court’s decision in West Virginia v. EPA and the impact it could have on U.S. administrative law broadly. You can read full story (behind a subscriber firewall) here.

“Huge decision,” emailed Gus Hurwitz, professor at the University of Nebraska College of Law. “The big picture is that it shifts power from the executive back to the legislative, with a note from the Court reading ‘Dear Congress, do your damn job,'” he said. “Title II-based net neutrality rules are DOA,” he said. The opinion raises questions about how the FTC can use its unfair methods of competition (UMC) authority, he said: “The most useful gloss is probably that if an agency wants to reshape an important industry the authority and tools it uses need to be clearly delineated by Congress. That doesn’t bode well for the FTC using its UMC authority to go after big tech or longstanding and widespread business practices.”

 

 

CNBC – ICLE President Geoffrey Manne was quoted by CNBC in a piece about efforts at the Federal Communications Commission to invoke Title II to regulate net neutrality. You can read the full piece here.

Geoffrey Manne, president of the International Center for Law & Economics, which has opposed Title II reclassification for ISPs, said social justice-centered arguments could have more resonance now. That could include minimal price regulation requiring ISPs to offer a low-cost tier of service, an outcome that, “I don’t think would be the end of the world,” Manne said.

 

TechMonitor – ICLE Director of Competition Policy Sam Bowman was quoted by TechMonitor in a story about Amazon’s €1.3billion fine by Italy’s antitrust regulator. The full story is available here.

But not everyone is convinced. Sam Bowman, director of competition policy at the International Center for Law & Economics think tank, says Amazon argues that FBA offers a more reliable service to consumers than other delivery options, and notes that there is no suggestion in the Italian ruling that consumers were harmed by Amazon’s behaviour. “It’s a philosophical question of whether Amazon has the right to prioritise services in this way if it wants to,” he says. “What this kind of ruling does is reduce Amazon’s role to a facilitator of the network between customers and businesses.”

Bowman says the role of platforms like Amazon goes beyond that of an intermediary and argues they are useful for consumers who are not confident accessing digital markets. “They bring order to the chaos of the internet,” he says. “For a lot of people, navigating that chaos is very difficult, takes a lot of time and carries a lot of risk. The platform is not just a conduit, it applies rules and quasi-regulations on the market it creates. We hope those rules will benefit customers, and if not they will shop elsewhere. The logic of this decision is that Amazon does not have the right to apply its own rules, and is simply a downpipe between consumers and sellers.”

…But Bowman believes the impact of the ruling – and the DMA – could be that platforms such as Amazon withdraw their own products from the European market and take a more neutral position. “Neutrality sounds quite appealing, but in terms of usability it may make things worse for consumers,” he says. “A platform like eBay is much more open and neutral than Amazon, but not necessarily better. I think a consequence [of the self-preferencing ban] will be the eBay-ification of a lot of tech platforms.”

Bowman says this change could take some time, depending on how the final DMA takes shape. “At the moment the way it is written seems very prescriptive about what can and can’t be done. We don’t know if this will lead to companies changing what they do overnight, or whether they will continue as usual and wait to discover how the European commission interprets these rules through rulings or lawsuits.”

Businesses using Amazon’s marketplace in the UK are likely to see fewer changes, Bowman says, as the country’s proposed legislation for regulating digital platforms is less prescriptive, focusing on outcomes rather than strict rules. “The UK approach is likely to be a lot softer, with the companies developing a relationship with the regulator,” he says. “I’m not convinced this will do much for competition, but the ambiguity means it is less likely to generate unsatisfactory outcomes where ‘good’ practices are banned because they don’t comply with the rules.”

Communications Daily – ICLE Director of Innovation Policy Kristian Stout was quoted by Communications Daily in a story about Acting Federal Communications Commission Chair Jessica Rosenworcel. The full story is available (behind a subscriber firewall) here.

Net neutrality will be the biggest fight, predicted Kristian Stout, International Center for Law & Economics director-innovation policy. “There are some spectrum issues hanging out there, but none of them strike me as likely to be highly divisive.” Items like the future of Lifeline “are going to require negotiation, but they don’t strike me as highly partisan.” If Rosenworcel isn’t made permanent chair, he warned of “tensions on the Democrat side of the commission which could create roadblocks.”

Inc. – ICLE Director of Law & Economics Programs, Justin (Gus) Hurwitz, was quoted in Inc.com on 

Director of Law & Economics Programs Gus Hurwitz is quoted in the Los Angeles Times piece Upholding FCC’s repeal of net neutrality rules, court opens door for California to enforce its own by Suhauna Hussein. The article discusses the Federal Appeals Court decision to uphold the Federal Communications Commission’s repeal of Obama-era net neutrality protections. Read the full article here.

ICLE Director of Law & Economics Programs, Gus Hurwitz was quoted in the San Francisco Chronicle piece ‘A big win’: Wiener hails California net neutrality prospects after mixed ruling by Mallory Moench. During the interview Gus explains, “compliance costs/uncertainty could be high enough that small ISPs that cover much of rural America don’t add service to 10-15 new households per year, a significant percentage for in towns and counties with only a few hundred or thousand residents or ISPs that only have 500 or 1000 customers.” Read the article in its entirety here: https://www.sfchronicle.com/business/article/California-s-net-neutrality-law-survives-federal-14483495.php

Dirk Auer, former research fellow and current Ph.D. candidate at the University of Liège Competition and Innovation Institute will join ICLE’s resident staff as Senior Fellow in Law & Economics. Dirk’s Ph.D. focuses on the “Innovation Defense” in European competition law and US antitrust law. Dirk completed LLMs at the University of Chicago Law School and the University of Liège. He also worked in the competition practices of two international law firms.

Pinar Akman, Director of the Centre for Business Law and Practice and Professor of Law at the University of Leeds School of Law, has joined ICLE as an Academic Affiliate. Pinar is the author of The Concept of Abuse in EU Competition Law: Law and Economics Approaches (Hart Publishing, Oxford, 2012). She previously held a Chair University of East Anglia  Law School. Pinar’s peer-reviewed articles have been published in prestigious journals such as the Oxford Journal of Legal Studies, Modern Law Review, European Law Review, Journal of Business Law, and the Journal of Law & Society. In 2017, she was awarded a Philip Leverhulme Prize (£100,000) which recognizes “the achievement of outstanding researchers whose work has already attracted international recognition and whose future career is exceptionally promising”.

Konstantinos Stylianou, Assistant Professor in Competition Law and Regulation, and  Deputy Director of the Centre for Business Law and Practice at the University of Leeds School of Law, has joined ICLE as an Academic Affiliate. His areas of focus are communications networks, digital markets, blockchain, and high-tech industries in general. Before joining the University of Leeds, Konstantinos was a Fellow at the Center for Technology and Society at FGV Direito Rio (Brazil), where he was involved in the public consultation and drafting of the local net neutrality rules. Before that he worked and/or interned at the Council of Europe, the U.S. Federal Communications Commission, the Berkman Center at Harvard, and the European Platform for Regulatory Authorities. Konstantinos holds an S.J.D. from the University of Pennsylvania, an LL.M. from Harvard, and a Bachelor’s and Master’s from Aristotle University (Greece).

Frédéric Marty, Senior Research Fellow at the French National Centre for Scientific (CNRS) and affiliate researcher of the French Economic Observatory (OFCE – Sciences Po. Paris) has joined ICLE as an Academic Affiliate. Frédéric is a member of the EPPP Research Group of the Sorbonne Graduate Business School (IAE Paris Panthéon-Sorbonne). He graduated in economics and management from the Ecole Normale Supérieure of Cachan (Ph.D. in economics). He has been a member of the Group of Research in Law, Economics and Management (GREDEG), a joint laboratory of the CNRS and of the Université Côte d’Azur, since 2003. His publications and teachings deal with law and economics with a focus on procurement and competition policy. Frédéric also published a book on law and economics with Thierry Kirat (Economie du Droit et de la Réglementation, Gualino, 2007). His research fields encompass unilateral abuses of dominance, state aids’ regulation, and the history of competition policies.

Aurelien Portuese, Senior Lecturer in Law at Leicester De Montfort Law School, has joined ICLE as an Academic Affiliate. Aurelien teaches EU Law, International Sales Law, Commercial Law, English and European Legal Contexts, and is acting as supervisor of students at the Legal Advice Centre. Aurelien is the author of academic journal articles and book chapters on EU law,  Law & Economics, and Competition/Antitrust law. A Visiting Lecturer at King’s College London, Aurelien has was a Visiting Scholar at the Centre for Competition Law & Policy of the University of Oxford in 2017. Previously, Aurelien taught at Sciences Po. Paris, the University of Westminster (London), the University of Opale Coast (‘ULCO‘) at Boulogne-sur-Mer, and the Conservatoire National des Arts et Métiers of Paris.

Thibault Schrepel, Assistant Professor in European Economic Law at the Utrecht University School of Law, and Associate Researcher at University of Paris 1 Panthéon-Sorbonne has joined ICLE as an Academic Affiliate. Most of Thibault’s writing focus on the issue of innovation and high-tech markets in relation to competition law. He has published his work at Harvard, NYU, and Oxford, among others. Two of his writings were among the 10 most downloaded articles on SSRN (worldwide) in the years 2015 and 2017.  Thibault is the creator of the Revue Concurrentialiste Journal of Antitrust Law. In April 2018, Thibault was awarded the “Academic Excellence” GCR Awards which honors “an academic competition specialist who has made an outstanding contribution to competition policy in 2017.”

Peter Whelan, Professor of Law at the School of Law, University of Leeds, and Deputy Director of the Centre for Criminal Justice Studies, has joined ICLE as an Academic Affiliate. Peter has a Ph.D. in Law from St John’s College, University of Cambridge. A qualified US Attorney-at-Law, Peter is an expert in competition (antitrust) law and criminal law. He has published widely in prestigious law journals, including Oxford Journal of Legal Studies, Cambridge Law Journal, and Modern Law Review.  To date, Peter has presented his research in almost 30 countries. He was recently appointed as an International Expert by the Finnish Competition and Consumer Authority. He has provided training in EU competition law to the Romanian judiciary and has delivered lectures on his research at the National Economic Prosecutor’s Office of Chile, the Competition Tribunal of Chile and the Peruvian competition authority (INDECOPI). Peter has been a Visiting Professor at the Institute of International Trade and Law in Moscow, Russia and is a Non-Governmental Advisor to the International Competition Network, which comprises over 130 of the world’s competition authorities.

In a CNBC interview on Supreme Court nominee Brett Kavanaugh’s position on data regulation, Geoffrey Manne explains that it might have more to do with brand definition than the data itself:

Kavanaugh, who clerked for Kennedy, “would be likely, on these issues, to either replicate Kennedy or even steer further towards a First Amendment that’s more likely to degrade regulatory systems,” Bambauer said.

However, not everybody thinks that Kavanaugh’s position on data as speech is so clear. Geoffrey Manne, executive director of the International Center for Law & Economics, said that Kavanaugh’s position in the net neutrality case has more to do with the providers’ right to define their brand than the data itself.

The “editorial control” Kavanaugh references, according to Manne, is about ISPs deciding what content they provide customers. “It doesn’t have anything to do with the bits themselves,” he said.

Kavanaugh cited another reason, though, for opposing net neutrality. He said that the FCC’s initiation of the rule without authorization from Congress also rendered it unlawful. That position, according to Manne, is what could possibly pit Kavanaugh against regulations of data from the FCC and other agencies.

Click here to read the full article at cnbc.com