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The Digital Markets Act

TL;DR The European Union has unveiled draft legislation that seeks to tame so-called “gatekeeper” Big Tech firms. If passed into law, this Digital Markets Act (“DMA”) would create a list of “dos and don’ts” by which the platforms must abide, such as allowing interoperability with third parties and sharing data with rivals.

Background…

The European Union has unveiled draft legislation that seeks to tame so-called “gatekeeper” Big Tech firms. If passed into law, this Digital Markets Act (“DMA”) would create a list of “dos and don’ts” by which the platforms must abide, such as allowing interoperability with third parties and sharing data with rivals. In short, the DMA would give the European Commission significant powers to tell tech companies how to run their businesses.

But…

The DMA essentially shifts competition enforcement against gatekeeper platforms away from an “effects” analysis that weighs costs and benefits to a “blacklist” approach that proscribes all listed practices as harmful. This will constrain platforms’ ability to experiment with new products and make changes to existing ones, limiting their ability to innovate and compete.

Read the full explainer here.

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Antitrust & Consumer Protection

One Window Shuts, Another Opens – Why Warner Bros. Streamed

Popular Media Warner Bros. Entertainment Inc.’s announcement in early December that it would send 17 films from its 2021 slate directly to its HBO Max streaming service . . .

Warner Bros. Entertainment Inc.’s announcement in early December that it would send 17 films from its 2021 slate directly to its HBO Max streaming service the same day they debut in theaters shocked the entertainment world. Affected films include anticipated franchise tentpoles like “The Matrix 4,” “Dune” and “Space Jam: A New Legacy.”

Theaters traditionally have had a three-month exclusive “window” to run a film, after which it would be distributed to home video, premium channels, free channels, and then network television. Warner effectively shut the window between when a film is shown in theaters and when it is made available elsewhere.

Read the full piece here.

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Intellectual Property & Licensing

The Ajit Pai FCC on Radio Spectrum Allocations

TOTM Disclosure: The one time I met Ajit Pai was when he presented a comment on my book, “The Political Spectrum,” at a Cato Institute forum . . .

Disclosure: The one time I met Ajit Pai was when he presented a comment on my book, “The Political Spectrum,” at a Cato Institute forum in 2018. He was gracious, thorough, and complimentary. He said that while he had enjoyed the volume, he hoped not to appear in upcoming editions. I took that to imply that he read the book as harshly critical of the Federal Communications Commission. Well, when merited, I concede. But it left me to wonder if he had followed my story to its end, as I document the success of reforms launched in recent decades and advocate their extension. Inclusion in a future edition might work out well for a chairman’s legacy. Or…

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Telecommunications & Regulated Utilities

Ajit Pai Brought the FCC’s Media Ownership Rules into the Modern Age

TOTM Pai’s tenure at the FCC was marked by an abiding appreciation for the importance of competition, both as a guiding principle for new regulations and as a touchstone to determine when to challenge existing ones. Perhaps his greatest contribution to bringing competition to the forefront of the FCC’s mandate came in his work on media modernization.

I’m delighted to add my comments to the chorus of voices honoring Ajit Pai’s remarkable tenure at the Federal Communications Commission. I’ve known Ajit longer than most. We were classmates in law school … let’s just say “many” years ago. Among the other symposium contributors I know of only one—fellow classmate, Tom Nachbar—who can make a similar claim. I wish I could say this gives me special insight into his motivations, his actions, and the significance of his accomplishments, but really it means only that I have endured his dad jokes and interminable pop-culture references longer than most.

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Telecommunications & Regulated Utilities

The Digital Services Act

TL;DR The European Commission has released its draft Digital Services Act (“DSA”), which seeks to make the internet safer for European citizens. If passed into law, this regulation will shape digital markets in the European Union for years to come.

Background…

The European Commission has released its draft Digital Services Act (“DSA”), which seeks to make the internet safer for European citizens. If passed into law, this regulation will shape digital markets in the European Union for years to come.

But…

While some provisions of the draft DSA could bring needed changes to the regulation of online markets,  the law will on balance make it more costly for online firms to do business in Europe. This is particularly true for smaller platforms with less capacity to shoulder significant compliance costs. Like many other regulations, the DSA also might further entrench incumbents.

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Data Security & Privacy

Chairman Pai’s Organizational Legacy

TOTM One significant aspect of Chairman Ajit Pai’s legacy is not a policy change, but an organizational one: establishment of the Federal Communications Commission’s (FCC’s) Office . . .

One significant aspect of Chairman Ajit Pai’s legacy is not a policy change, but an organizational one: establishment of the Federal Communications Commission’s (FCC’s) Office of Economics and Analytics (OEA) in 2018.

Prior to OEA, most of the FCC’s economists were assigned to the various policy bureaus, such as Wireless, Wireline Competition, Public Safety, Media, and International. Each of these bureaus had its own chief economist, but the rank-and-file economists reported to the managers who ran the bureaus – usually attorneys who also developed policy and wrote regulations. In the words of former FCC Chief Economist Thomas Hazlett, the FCC had “no location anywhere in the organizational structure devoted primarily to economic analysis.”

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Telecommunications & Regulated Utilities

A Reflection on Commissioner Pai, Chairman Pai, and Public Service

TOTM Ajit Pai has been, in my view, the most successful, impactful minority commissioner in the history of the modern regulatory state. And it is that success that has led him to become the most successful and impactful chairman, too.

Much of this symposium celebrates Ajit’s contributions as chairman of the Federal Communications Commission and his accomplishments and leadership in that role. And rightly so. But Commissioner Pai, not just Chairman Pai, should also be recognized.

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Telecommunications & Regulated Utilities

The eight biggest Covid-sceptic myths – and why they’re wrong

Popular Media There has been a huge amount of misinformation during the pandemic. Much of it was unavoidable, especially at the start as we dealt with a new . . .

There has been a huge amount of misinformation during the pandemic. Much of it was unavoidable, especially at the start as we dealt with a new virus, but some myths are persisting a year into the pandemic.

The myths range from the ridiculous to the merely implausible, but together they are misleading the public about the danger of Covid-19 and other variants. These false claims could also have serious consequences, such as fuelling premature calls to end social distancing measures before the vaccination rollout has reached a safe level.

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Innovation & the New Economy

Chairman Pai’s Legacy of Transparency

TOTM For many, the chairmanship of Ajit Pai is notable for its many headline-grabbing substantive achievements, including the Restoring Internet Freedom order, 5G deployment, and rural . . .

For many, the chairmanship of Ajit Pai is notable for its many headline-grabbing substantive achievements, including the Restoring Internet Freedom order, 5G deployment, and rural buildout—many of which have been or will be discussed in this symposium. But that conversation is incomplete without also acknowledging Pai’s careful attention to the basic blocking and tackling of running a telecom agency. The last four years at the Federal Communications Commission were marked by small but significant improvements in how the commission functions, and few are more important than the chairman’s commitment to transparency.

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Telecommunications & Regulated Utilities