Research Programs
More
What are you looking for?
Showing 8 Publications
Presentations & Interviews ICLE research on the proposed merger of supermarkets Kroger and Albertsons was cited on an episode of the Econception podcast. The full episode is embedded . . .
ICLE research on the proposed merger of supermarkets Kroger and Albertsons was cited on an episode of the Econception podcast. The full episode is embedded below. Discussion of the ICLE white paper begins at around the 20:43 mark.
Regulatory Comments Dear Chairwoman Rosenworcel, Assistant Secretary Davidson, and Ambassador Fick: Through investment and advances in next-generation satellite technologies the American satellite industry is experiencing unprecedented growth. . . .
Dear Chairwoman Rosenworcel, Assistant Secretary Davidson, and Ambassador Fick:
Through investment and advances in next-generation satellite technologies the American satellite industry is experiencing unprecedented growth. Satellites in low earth orbit (LEO) are delivering high-speed broadband and offering connectivity solutions that address the long-standing digital divide in the U.S. and globally. Now more than ever, it is imperative for the federal government to promote this promising technology and continue to support the acceleration of a competitive satellite broadband industry that enables the U.S. to maintain its leadership in space and satellite technology.
Broadband connectivity, both at home and across the globe, is essential for including all communities in the modern digital economy. Millions of Americans continue to lack access to broadband at home. Globally, approximately 3 billion people do not have home internet access. The benefits of universal connectivity would not just be felt by those who lack access now – expanding connectivity creates a “rising tide” phenomenon in communities, encouraging improvement across industries. We believe that LEO satellite broadband offers great potential to help bridge the global digital divide.
Satellite broadband offers particular promise in connecting the unconnected because it now offers high-capacity throughput and a quality user experience without the geographical barriers to deployment that can create high costs and long delays for wireline service. For geographically or topographically difficult-to-reach communities, LEO broadband offers a solution that requires only a customer terminal and access to sky. Additionally, U.S. research and development are leading the way in the advancement of the LEO industry. The U.S. has long been ahead of the curve on space development and exploration, and we are home to a robust private sector space industry.
With such rapid innovation and investment across the satellite space, it is important that the U.S. government continue to strengthen American leadership in this sector. The Federal Communications Commission and National Telecommunications and Information Administration should implement policies that foster competition and innovation that benefit both consumers and the U.S. economy more broadly. Although this technology and market has been pioneered by American companies, LEO constellations are inherently global, making U.S. leadership at bodies like the International Telecommunication Union (ITU) and the Inter-American Telecommunication Commission (CITEL) vital to a thriving industry and U.S. interests.
Accordingly, we urge you to prioritize LEO NGSO systems and policies by expanding spectrum access and leveling the playing field between LEOs and incumbent technologies. For example, LEO systems rely entirely on shared spectrum, which makes it critical to modernize outdated ITU coexistence criteria to ensure more efficient and equitable access to shared spectrum resources for both LEO and GSO networks. Such a policy environment will give consumers more options, promote innovation, lower costs and, most importantly, enable many more people to connect to the internet both at home and globally.
LEO satellite broadband is revolutionizing connectivity and offering a solution for fast, reliable internet to every community. We believe your prioritization of LEO broadband, both at home and abroad, will help unleash a new wave of global connectivity. We look forward to partnering with you to support bridging the digital divide.
Amicus Brief STATEMENT OF INTEREST OF AMICI CURIAE This brief is filed on behalf of the Texas Association of Broadcasters, Texas Press Association, Texas Tribune, Freedom of . . .
This brief is filed on behalf of the Texas Association of Broadcasters, Texas Press Association, Texas Tribune, Freedom of Information Foundation of Texas, The American Booksellers for Free Expression, Association of American Publishers, Inc., The Authors Guild, The Cato Institute, The Center for Investigative Reporting, First Amendment Foundation, Inc., Fox Television Stations, LLC, Freedom of the Press Foundation, Freedom to Read Foundation, The Institute for Policy Innovation, International Center for Law & Economics, The Media Coalition Foundation, The Media Institute, The Media Law Resource Center, Motion Picture Association, Inc., National Coalition Against Censorship, National Press Photographers Association, News/Media Alliance, Penguin Random House LLC, The Reporters Committee for Freedom of the Press, and Tully Center for Free Speech (collectively, “Amici”).[1] As organizations that defend and advocate for First Amendment rights, Amici respectfully submit this brief in support of Plaintiff-Appellee to raise critical free speech issues implicated by this case. Amici share concerns over the bad-faith prosecution employed by the District Attorney and will highlight (1) why federal courts should be available to expeditiously halt unjustified prosecutions and vindicate fundamental First Amendment rights and (2) how allowing the prosecution to proceed could chill a diverse range of speech.
Texas Association of Broadcasters is a non-profit association that represents more than 1,300 television and radio stations in Texas with a tradition of community-oriented, free, over-the-air broadcasting. The Texas Association of Broadcasters was founded in 1953 and performs numerous services on behalf of its members, including advocating legislation relating to and affecting radio and television broadcasters and defending open government, as well as publishing guidebooks on various legal issues, including access to public information.
Texas Press Association (“TPA”) is a non-profit industry association representing nearly 400 daily and weekly newspapers in Texas, each of which upholds a strong tradition of journalistic integrity and community service. TPA, founded more than 130 years ago, performs numerous services on behalf of its members, including advocating legislation relating to free speech and press and taking legal action to protect the First Amendment and open government.
The Texas Tribune is an all-digital, member-supported nonprofit and nonpartisan news organization that covers state government in Texas. Founded in 2009, the Tribune provides its stories for free to the public and for other news organizations to republish, also for free.
Freedom of Information Foundation of Texas is a nonprofit organization that works to encourage a greater appreciation, knowledge and understanding of the First Amendment and helps to ensure that the public’s business is conducted in public. Since its formation in 1978, the Foundation has helped citizens access government meetings and documents. The non-partisan Foundation acts as a statewide information clearinghouse and offers guidance and assistance on FOI-related issues through a network of attorneys and through public seminars and conferences.
The American Booksellers for Free Expression (“ABFE”) is the free speech initiative of the American Booksellers Association (“ABA”). ABA was founded in 1900 and is a national not-for-profit trade organization that works to help independently owned bookstores grow and succeed. ABA represents 2,178 bookstore companies operating in 2,593 locations. ABA’s core members are key participants in their communities’ local economy and culture. To assist them, ABA provides education, information dissemination, business products, and services; creates relevant programs; and engages in public policy, industry, and local first advocacy.
The Association of American Publishers, Inc. (“AAP”), a not-for-profit organization, represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. AAP’s members range from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. AAP’s members publish a substantial portion of the general, educational, and religious books produced in the United States, including critically acclaimed, award-winning literature for adults, young adults, and children. AAP represents an industry whose very existence depends on the free exercise of rights guaranteed by the First Amendment. AAP’s board companies are listed at https://publishers.org/who-we-are/our-board.[2] Its full member roster is listed at https://publishers.org/who-we-are/our-members.
The Authors Guild was founded in 1912, and is a national non-profit association of more than 13,000 professional, published writers of all genres. The Guild counts historians, biographers, academicians, journalists, poets, translators, and other writers of non-fiction and fiction as members. The Guild works to promote the rights and professional interest of authors in various areas, including copyright, fighting censorship, and taxation. Many Guild members earn their livelihoods through their writing. Their work covers important issues in history, biography, science, politics, medicine, business, and other areas; they are frequent contributors to the most influential and well-respected publications in every field. One of the Authors Guild’s primary areas of advocacy is to protect the free expression rights of authors.
The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and studies, conducts conferences, and issues the annual Cato Supreme Court Review.
The Center for Investigative Reporting (d/b/a Reveal), founded in 1977, is the nation’s oldest nonprofit investigative newsroom. Reveal produces investigative journalism for its website https://www.revealnews.org, the Reveal national public radio show that airs on 600+ radio stations, and various documentary projects. Reveal often works in collaboration with other newsrooms across the country.
First Amendment Foundation, Inc., is a 501(c)(3) tax-exempt, non-profit organization created to ensure government openness and transparency by providing education and training, monitoring open records and meetings laws, and assisting citizens and journalists in obtaining access to government information and proceedings. Amicus has a strong interest in this proceeding because it, and the citizens and journalists it supports, all routinely exercise their First Amendment rights by promoting and engaging in speech on matters of public concern that must be free from the chilling fear of prosecution.
Fox Television Stations, LLC, a wholly owned subsidiary of Fox Corporation, owns and operates 29 full-power broadcast television stations in the U.S., including stations located in 14 of the top 15 largest markets, and duopolies in the three largest markets (New York, Los Angeles, and Chicago). In addition to distributing sports, entertainment, and syndicated content, our television stations collectively produce approximately 1,200 hours of local news every week.
Freedom of the Press Foundation is a non-profit organization dedicated to helping support and defend public-interest journalism. Freedom of the Press Foundation advocates for transparency and accountability in an effort to preserve the rights guaranteed to the press under the First Amendment and strengthen the public’s right to know. As part of that mission, the organization has served as amicus curiae in cases addressing First Amendment issues raised by emerging technologies and government surveillance in the federal courts.
Freedom to Read Foundation is an organization established by members of the American Library Association to promote and defend First Amendment rights, foster libraries as institutions that fulfill the promise of the First Amendment, support the rights of libraries to include in their collections and make available to the public any work they may legally acquire, establish legal precedent for the freedom to read of all citizens, protect the public against efforts to suppress or censor speech, and support the right of libraries to collect and individuals to access information that reflects the diverse voices of a community so that every individual can see themselves reflected in the library’s materials and resources.
The Institute for Policy Innovation (“IPI”) is a 501(c)(3) nonprofit public policy research institute founded in 1987 to propose solutions to public policy problems based on the principles of individual liberty, constitutional governance, free markets and limited government. First Amendment speech issues fall within the scope of the public policy issues IPI includes in its issue portfolio.
International Center for Law & Economics (“ICLE”) is a nonprofit academic research organization that promotes governance rooted in the rule of law and the development of economically grounded policies that promote consumer welfare. ICLE scholars have studied and written extensively on the law and economics of the First Amendment and free expression.
The Media Coalition Foundation, Inc. monitors potential threats to free expression, and engages in litigation and education to protect free speech rights, as guaranteed by the First Amendment.
The Media Institute is a nonprofit foundation specializing in communications policy issues. The Institute exists to foster three goals: freedom of speech, a competitive media and communications industry, and excellence in journalism. The Media Institute is one of the country’s leading organizations focusing on the First Amendment and speech-related issues.
The Media Law Resource Center (“MLRC”) is a non-profit association which supports media lawyers and media companies in legal matters. It counts as members some 125 media companies, including the largest print, broadcast and digital entities in the United States, as well as over 200 law firms which work in the media law space. The MLRC puts on conferences on media law issues, distributes daily, monthly and quarterly publications, presents webinars on timely legal and journalistic topics, and gets involved in policy initiatives, generally in support of First Amendment rights and free expression.
Motion Picture Association, Inc. (“MPA”) is a not-for-profit trade association founded in 1922. The MPA serves as the voice and advocate of the film and television industry, advancing the business and art of storytelling, protecting the creative and artistic freedoms of storytellers, and supporting the creative ecosystem that brings entertainment and inspiration to audiences worldwide.
National Coalition Against Censorship (“NCAC”) is an alliance of 59 national non-profit literary, artistic, religious, educational, professional, labor, and civil liberties groups that are united in their commitment to freedom of expression. NCAC works to protect the First Amendment rights of artists, authors, students, readers, and the general public. Since its founding, it has had a special interest in supporting artistic expression that is threatened with suppression because of its sexual content. The views presented in this brief are those of NCAC and do not necessarily represent the views of each of its participating organizations.
National Press Photographers Association (“NPPA”) is a 501(c)(6) not-for-profit organization dedicated to the advancement of visual journalism in its creation, editing, and distribution. NPPA’s members include video and still photographers, editors, students, and representatives of businesses that serve the visual journalism community. Since its founding in 1946, the NPPA has been the Voice of Visual Journalists, vigorously promoting the constitutional and intellectual property rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism.
The News/Media Alliance represents news and media publishers, including nearly 2,000 diverse news and magazine publishers in the United States—from the largest news publishers and international outlets to hyperlocal news sources, from digital-only and digital-first to print news. Alliance members account for nearly 90% of the daily newspaper’s circulation in the United States. Since 2022, the Alliance is also the industry association for magazine media. It represents the interests of close to 100 magazine media companies with more than 500 individual magazine brands, on topics that include news, culture, sports, lifestyle and virtually every other interest, avocation or pastime enjoyed by Americans. The Alliance diligently advocates for news organizations and magazine publishers on issues that affect them today.
Penguin Random House LLC publishes adult and children’s fiction and nonfiction in print and digital trade book form in the U.S. The Penguin Random House global family of companies employ more than 10,000 people across almost 250 editorially and creatively independent imprints and publishing houses that collectively publish more than 15,000 new titles annually. Its publishing lists include more than 60 Nobel Prize laureates and hundreds of the world’s most widely read authors, among whom are many investigative journalists covering domestic politics, the justice system, business and international affairs.
The Reporters Committee for Freedom of the Press is an unincorporated nonprofit association. The Reporters Committee was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today, its attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.
The Tully Center for Free Speech began in Fall, 2006, at Syracuse University’s S.I. Newhouse School of Public Communications, one of the nation’s premier schools of mass communications.
This case is about a good law employed in bad faith to punish constitutionally protected speech. Netflix has faced two misguided prosecutions and five indictments under Tex. Penal Code §§ 43.262[3] and 43.25 for its distribution of Cuties, an award-winning film[4] that addresses important societal issues such as the influence of social media and cultural heritage. As shown by extensive delays, a lack of probable cause, dubious motives, and selective use of evidence, the District Attorney prosecuted Netflix in bad faith and deprived it of an immediate remedy in state court. Thus, this is the rare case where it is appropriate for federal courts to fulfill their duty to protect
constitutional rights, including those under the First Amendment, and put an end to an unjustified state prosecution.
Cuties is a French film that tells the story of an 11-year-old Senegalese immigrant, Amy, torn between her family’s conservative culture and the more progressive French society. It explores the challenges of childhood and the pressures of the rapidly rising influence of social media. Amy’s experience, which is shared by girls and boys throughout the world, serves as a reminder of the struggles of adolescence, especially in modern times, and has sparked many productive conversations among adults and children alike.
Amici acknowledge the critical importance of enforcing child pornography statutes. But rather than foster the goal of protecting minors from harm, the continued criminal prosecution of Netflix would result not only in censorship of significant issues of public concern about children and uncomfortable truths that are discussed in the film, but also broader chilling effects on protected speech. Without the ability to seek redress for baseless prosecutions in federal court, critical constitutional rights would be curbed, and a vast array of speech would be chilled for fear of being similarly prosecuted. This Court should thus affirm the District Court’s well-reasoned decision vindicating Netflix’s First Amendment rights and, by extension, those of others who wish to speak on controversial topics of public interest.
[1] Pursuant to Fed. R. App. P. 29(a)(4), Amici certify that counsel for Amici authored this brief in whole; that no counsel for a party authored this brief in any respect; and that no person or entity, other than amicus and its counsel, contributed monetarily to this brief’s preparation or submission.
[2] All internet citations in this brief were last visited June 7, 2023.
[3] Soon after being charged under § 43.262, the statute was held unconstitutional. See Ex parte Lowry, 639 S.W.3d 151, 169 (Tex. App.—Houston [1st Dist.] 2021, pet. granted).
[4] Cuties received the “Directing Award” at the Sundance Film Festival in January 2020 and the “Best First Film” and “Best Female Newcomer” awards at the César Film Festival in France, among others. ROA.1537.
Written Testimonies & Filings DOT should be focusing its efforts on bringing the automotive industry’s new cellular vehicle-to-everything (“C-V2X”) technology to vehicles. Instead, we are concerned that DOT will attempt to use a study that is both procedurally and technically flawed to pressure the FCC to roll back its bipartisan decision on the 5.9 GHz band.
Dear Members of Congress,
Following years of careful study, in 2020 the FCC took bipartisan action to allow both unlicensed broadband and automotive use of the 5.9 GHz band, clearing the way for billions of dollars in economic value and innovation.
The Department of Transportation’s (“DOT”) recently announced study appears to be designed to undermine the FCC’s decision, spurred by interests’ intent on re-asserting a claim that the automotive industry should control the entire band. DOT is conducting this action without seeking public comment and appears to be relying on improper technical assumptions and methodologies.
Accordingly, the undersigned organizations urge you to stop this misguided effort. DOT should be focusing its efforts on bringing the automotive industry’s new cellular vehicle-to-everything (“C-V2X”) technology to vehicles. Instead, we are concerned that DOT will attempt to use a study that is both procedurally and technically flawed to pressure the FCC to roll back its bipartisan decision on the 5.9 GHz band. This would be another instance of government agency dysfunction run amok.
Congress designated the FCC as the nation’s arbiter of commercial spectrum. The FCC’s 5.9 GHz decision is based on sound science and engineering and will best serve both the broadband and automotive safety needs of the country. The FCC’s approach:
The FCC undertook a lengthy, full, and fair public rulemaking that expressly considered the views of all stakeholders, from consumer advocates and technology companies to the DOT, state transportation agencies and vehicle manufacturers. The result was a bipartisan and unanimous decision that adopted careful technical rules to protect neighboring automotive services.
The FCC’s decision is also critical for American jobs, as unlicensed technologies add hundreds of billions of dollars to the U.S. economy every year and economists calculate that enabling access to part of the 5.9 GHz band will add more than $28 billion by 2025. In fact, this spectrum has been used for the past two years to provide consumers with additional bandwidth to meet increased demand during the pandemic.
C-V2X advocates repeatedly told the FCC that 30 megahertz of spectrum would be sufficient for C-V2X to deliver time-critical safety messages and applications. Rather than relitigate the FCC’s bipartisan decision on a spectrum matter that is squarely in its jurisdiction, DOT should focus on helping the automotive industry deliver on those vehicle-safety promises.
Spectrum is a finite asset, and after a twenty-year grant of exclusive use of the band, the FCC was right to not allow these critical mid-band frequencies to lay fallow any longer. Given the importance of the 5.9 GHz band to the country, the federal government must speak with a unified voice on spectrum. Congress should direct the DOT to drop this post-Order testing immediately.
Respectfully submitted,
American Library Association Benton Institute for Broadband & Society Center for Rural Strategies Council for Citizens Against Government Waste Digital Progress Institute International Center for Law & Economics Next Century Cities Open Technology Institute at New America Public Knowledge R Street Institute Wireless Internet Service Providers Association (WISPA)
Written Testimonies & Filings The signatories of this letter represent a broad range of public interest organizations who urge that any state laws still prohibiting car companies from selling their cars directly to consumers, or opening service centers for those vehicles, be amended to permit direct sales and service of EVs
We, the signatories of this letter, represent a broad range of public interest organizations. Our individual interests include such diverse matters as environmental protection, fair competition, consumer protection, economic growth and workforce development, and technology and innovation. Some of us frequently find ourselves on different sides of public policy debates. However, today we find common ground on an issue of considerable public importance concerning sales of electric vehicles (“EVs”). Specifically, we urge that any state laws still prohibiting car companies from selling their cars directly to consumers, or opening service centers for those vehicles, be amended to permit direct sales and service of EVs
Regulatory Comments Dear Secretary Buttigieg, Secretary Raimondo, and Director Deese: The International Center for Law & Economics, New America’s Open Technology Institute, Public Knowledge and the R . . .
Dear Secretary Buttigieg, Secretary Raimondo, and Director Deese:
The International Center for Law & Economics, New America’s Open Technology Institute, Public Knowledge and the R Street Institute represent organizations that take contrary positions on many policy issues. But we all agree that the Federal Communications Commission’s bipartisan compromise decision to open the 5.9 GHz band to both automotive and broadband technologies achieved the right balance. We therefore write to respond to a March 11, 2021 letter from the Intelligent Transportation Society of America (ITS America) and the American Association of State Highway and Transportation Officials (AASHTO).[1] This letter argues that you should intervene in an attempt to overrule the considered decision of an independent regulatory agency, without revealing key facts about the band. The truth is that the automotive industry was granted access to this band more than twenty years ago and has still failed to produce any real-world safety benefits—and that the FCC’s well-supported and bipartisan decision will both support crash-avoidance advances and expand broadband at a time when Americans need it more than ever. We urge you not to undermine the FCC’s important decision as ITS America and AASHTO ask you to do.
On November 18, 2020, the Federal Communications Commission (FCC) adopted a unanimous and bipartisan 5.9 GHz Order designating (1) 45 megahertz of the 5.9 GHz band for indoor Wi Fi and other unlicensed broadband technologies and (2) 30 megahertz for automotive safety technologies.[2] Our organizations believe that the FCC’s compromise approach was right for strengthening the Wi-Fi connections Americans rely on and for supporting the innovation in automotive technologies needed to finally address the failure of the FCC’s previous ITS policy.
The FCC’s 5.9 GHz Order recognized the enormous contributions Wi-Fi makes to Americans’ everyday lives and to the Nation’s economy. Demand for Wi-Fi has been increasing rapidly for years, and recent research published by the Wi-Fi Alliance has found that Wi-Fi creates nearly $1 trillion in economic value annually in the United States today.[3] The COVID-19 pandemic has only magnified the importance of Wi-Fi to Americans working, attending school, completing homework assignments, attending telehealth visits, connecting with family and friends, and more via their broadband internet connections. Even before the FCC adopted its final order in November, it granted special temporary access to the lower 45 megahertz of the 5.9 GHz band to 100 wireless internet service providers, who used it to immediately expand capacity for customers in dozens of rural areas across the country using existing devices.
Because of Wi-Fi’s enormous success, however, the spectrum bands commonly used today are overburdened. As Americans continue to rely increasingly on Wi-Fi to connect more and more devices to the internet, the FCC must seize opportunities to make more spectrum available.
The FCC began to study the 5.9 GHz band for Wi-Fi and other unlicensed applications in 2013. In 2019, in a notice of proposed rulemaking, the Commission correctly recognized that even though the FCC had set aside the full 5.9 GHz band over twenty years ago in 1999 for a particular automotive safety technology called Dedicated Short Range Communications (or DSRC), that technology had “not lived up to its promise, … leaving valuable mid-band spectrum largely fallow.”[4] Today, there is no use of the band at all in the vast majority of the country, and there is not even one automobile model currently built with DSRC. In recognition of this failure, the FCC proposed to split the band so that unlicensed technologies like Wi-Fi could operate in the lower 45 megahertz of the band, and a new automotive communications technology called C- V2X could operate in the top 30 megahertz of the band. It noted that the 5.9 GHz band is adjacent to the most widely used Wi-Fi band in the United States and that adding those 45 megahertz would enable the use of wider Wi-Fi channels needed to make more efficient use of the spectrum and to support next-generation broadband applications.
Particularly with the emergence of C-V2X, preferred by many in the automotive industry, the Commission believed that a compromise giving both Wi-Fi and C-V2X the ability to operate would finally make efficient and valuable use of the 5.9 GHz band. The Commission received extensive comments over many years from Wi-Fi advocates and automotive interests, and met repeatedly with interested parties. It also considered multiple rounds of input from the National Telecommunications and Information Administration and the U.S. Department of Transportation on behalf of private automotive companies and states, even though this band is not available for Department of Transportation federal use. In 2020, after many years of consideration, the Commission finally released the 5.9 GHz Order adopting the compromise proposal. Commissioners from both sides of the political aisle voted unanimously in favor of the 5.9 GHz Order, following years of bipartisan effort.
Despite this open and fair proceeding by an independent regulatory agency acting within its area of expertise, ITS America and AASHTO now ask you to work to overturn the FCC’s unanimous judgment. They argue, just as they have before the FCC again and again, that automotive communications technologies are poised to revolutionize automotive safety, if only the FCC would get out of the way and leave them the full 75 megahertz of the 5.9 GHz band instead of the top 30 megahertz. ITS America and its members made the same promises over twenty years ago about DSRC’s just-around-the-corner ability to improve vehicle safety when they successfully convinced the FCC to grant them the unusual and ill-fated subsidy of free, exclusive spectrum. They had two decades and billions of dollars in taxpayer-subsidized grants and investments, but failed to deploy DSRC widely in commercial vehicles. As a result, the only current DSRC uses of the band are sparse pilot projects for applications that need far less than the full 75 megahertz—not the ubiquitous deployments along roadways and in vehicles that would be necessary for DSRC to deliver on its promises. The FCC was right to recognize that there is a more efficient way to make use of the 5.9 GHz band for the benefit of Americans, while still leaving more than enough spectrum for the automotive industry to provide the safety applications they promised decades ago.
The FCC gave ITS America and AASHTO a full and fair hearing. These organizations were vocal participants in the FCC’s 5.9 GHz rulemaking process. They filed comments as far back as 2013 and presented their views in meetings with the FCC’s expert engineers many times over the course of the rulemaking. After years of careful consideration, the FCC concluded that there is room enough in the 5.9 GHz band for the future of Wi-Fi and for C-V2X, the future of automotive communications according to many industry stakeholders.
For ITS America and AASHTO now to ask the Administration to intervene with Congress in an effort to overrule the technical analysis and unanimous decision of an independent regulator, after 20 years of illusory promises, is nothing short of breathtaking. The country cannot afford for the Administration or Congress to fall prey to another generation of smoke and mirrors. We urge you to decline their invitation to undermine the FCC’s independence and its careful technical judgment.
Sincerely,
International Center for Law & Economics
New America’s Open Technology Institute
Public Knowledge
R Street Institute
[1] Letter from Shailen Bhatt, President & CEO, ITS America, and Jim Tymon, Executive Director, AASHTO, to the Honorable Pete Buttigieg, Secretary, U.S. Department of Transportation, the Honorable Gina Raimondo, Secretary, U.S. Department of Commerce, and Mr. Brian Deese, Director, National Economic Council (Mar. 11, 2021), available at https://itsa.org/wp-content/uploads/2021/03/ITSA-AASHTO-V2X-Letter-March-11.pdf.
[2] See Use of the 5.850-5.925 GHz Band, First Report and Order, Further Notice of Proposed Rulemaking, and Order of Proposed Modification, 35 FCC Rcd. 13440 (2020) (5.9 GHz Order).
[3] See https://www.wi-fi.org/news-events/newsroom/wi-fi-global-economic-value-to-reach-5-trillion-in-2025.
[4] Use of the 5.850-5.925 GHz Band, Notice of Proposed Rulemaking, 34 FCC Rcd. 12603, ¶ 18 (2019).
Written Testimonies & Filings On December 19, 2018, ICLE President and Founder, Geoffrey A. Manne testified before the US Senate Committee on the Judiciary's Subcommittee on Antitrust, Competition Policy and Consumer Rights to discuss the differences between the antitrust regimes in the US and the EU, and the inadvisability of importing EU policy into the US.
On December 19, 2018, ICLE President and Founder, Geoffrey A. Manne testified before the US Senate Committee on the Judiciary’s Subcommittee on Antitrust, Competition Policy and Consumer Rights to discuss the differences between the antitrust regimes in the US and the EU, and the inadvisability of importing EU policy into the US. Mr. Manne noted:
An increasing number of scholars and advocates have argued recently that US antitrust law should be “reformed” in order to invigorate antitrust enforcement and sidestep the judicially-imposed constraints that have developed over antitrust’s 100 year history. Explicitly or not, these efforts seek to bring about a shift in US antitrust that would make it more closely resemble competition law in Europe. While these scholars and advocates assert that their proposals would improve economic conditions in the US, economic logic and the apparent reality from Europe suggest otherwise. *** Although the differences between US and EU antitrust law can appear minor or superficial at a glance, even small differences can have important consequences, and the cumulative effect of the differences is significant. Although the Commission is often quite careful to couch its decision-making in economic language, in practice, analytical economic administration of antitrust is far from the norm. *** Despite asserting that EU competition law is “better” than that of the US, and that emulating the EU will improve economic conditions in the US, references to the likely outcome — positive or negative — of the expanded antitrust experiment in the EU are not provided. Moreover, as noted below, to the extent the European experience is assessed at all, these assessments are manifestly unreliable.
An increasing number of scholars and advocates have argued recently that US antitrust law should be “reformed” in order to invigorate antitrust enforcement and sidestep the judicially-imposed constraints that have developed over antitrust’s 100 year history. Explicitly or not, these efforts seek to bring about a shift in US antitrust that would make it more closely resemble competition law in Europe. While these scholars and advocates assert that their proposals would improve economic conditions in the US, economic logic and the apparent reality from Europe suggest otherwise.
***
Although the differences between US and EU antitrust law can appear minor or superficial at a glance, even small differences can have important consequences, and the cumulative effect of the differences is significant. Although the Commission is often quite careful to couch its decision-making in economic language, in practice, analytical economic administration of antitrust is far from the norm.
Despite asserting that EU competition law is “better” than that of the US, and that emulating the EU will improve economic conditions in the US, references to the likely outcome — positive or negative — of the expanded antitrust experiment in the EU are not provided. Moreover, as noted below, to the extent the European experience is assessed at all, these assessments are manifestly unreliable.
The full testimony documents the many relevant differences, in particular the way that competition law in the EU and its member states vests enforcers with broad discretion. By comparison, the US standards impose requirements of conducting careful economic analysis in order to prove a competitive harm. The net effect is that the US antitrust approach provides both certainty for firms and consumers, and discipline for enforcers.
The oral testimony is available here.
The full video of the hearing is available here.
TOTM One year ago tomorrow the Amazon/Whole Foods merger closed, following its approval by the FTC. The merger was something of a flashpoint in the growing populist antitrust movement, raising some interesting questions — and a host of objections from a number of scholars, advocates, journalists, antitrust experts, and others who voiced a range of possible problematic outcomes.
One year ago tomorrow the Amazon/Whole Foods merger closed, following its approval by the FTC. The merger was something of a flashpoint in the growing populist antitrust movement, raising some interesting questions — and a host of objections from a number of scholars, advocates, journalists, antitrust experts, and others who voiced a range of possible problematic outcomes.
Under settled antitrust law — evolved over the last century-plus — the vertical merger between Amazon and Whole Foods was largely uncontroversial. But the size and scope of Amazon’s operation and ambition has given some pause. And despite the apparent inapplicability of antitrust law to the array of populist concerns about large tech companies, advocates nonetheless contend that antitrust should be altered to deal with new threats posed by companies like Amazon.
For something of a primer on the antitrust debate surrounding Amazon, listen to ICLE’s Geoffrey Manne and Open Markets’ Lina Khan on Season 2 Episode 1 of Briefly, a podcast produced by the University of Chicago Law Review.
Beginning tomorrow, August 28, Truth on the Market and the International Center for Law & Economics will host a blog symposium discussing the impact of the merger.
One year on, we asked antitrust scholars and other experts to consider:
As in the past (see examples of previous TOTM blog symposia here), we’ve lined up an outstanding and diverse group of scholars to discuss these issues.
The symposium posts will be collected here. We hope you’ll join us!
