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Regulatory Comments "The Telecom Regulatory Authority of India (“TRAI”)’s tradition of regulatory humility — the “forbearance and flexibility” that has characterized its approach to telecommunications services regulation — has enabled the explosive growth of internet usage throughout India..."
“The Telecom Regulatory Authority of India (“TRAI”)’s tradition of regulatory humility — the “forbearance and flexibility” that has characterized its approach to telecommunications services regulation — has enabled the explosive growth of internet usage throughout India, including an over 50% surge in the number of users of mobile internet in rural areas since 2001. But as the Authority considers regulations and rules to “ensure orderly growth… and protection of consumer interest,” it is important to keep in mind the fundamental lesson taught by decades of technology regulation throughout the world: where entrepreneurial companies are left relatively free to experiment with innovative new methods of developing and deploying technologies — particularly telecommunications technologies — consumers enjoy the largest increases in their standard of living.
The importance of humility in regulating highly innovative industries cannot be overstated. Even after decades of research, there is still much that economists cannot predict about the broad economic effects of technological innovation on economic growth and development. The unintended and unanticipated costs of preventing new methods of reaching underserved consumers can be substantial, and the consequences enormous to those in greatest need…”
“India is on the cusp of providing an economically and socially transformative service: near-ubiquitous, low-cost, high-value internet access that has the potential to create unprecedented opportunity and advantage for its citizens. The nation stands poised to increase the welfare of its poorest citizens with a rapidity seldom witnessed in human history. We strongly encourage TRAI to chart a wise course that allows for differentiated tariffs and the expanded internet access they can bring to India’s citizens.”
Written Testimonies & Filings "The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth..."
“The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth. As the Commission undertakes to integrate the digital economy into the EU’s single market strategy, however, care should be taken to assure that the principles driving the explosive growth of the Internet are encouraged and not suppressed.
As companies contemplate new business models, new content distribution services, new uses for data and new opportunities for valuable data exchange, it is important that regulation not create a legal environment in which valuable products are inefficiently delayed, degraded or abandoned. Effective and efficient policies flow from basic, well-established economic and legal principles that maximize welfare by, among other things, minimizing error costs, promoting innovation, encouraging voluntary and self-help remedies, prioritizing self-regulation, minimizing institutional and bureaucratic costs, and capitalizing on the incentives and informational advantages of market participants…”
“Importantly, the decision with respect to a new regulatory regime for online platforms is not made in a vacuum; rather, it is a choice between existing rules and the proposed alternatives. Justifying new rules demands a comparison to existing rules, meaning rigorous evidence not only that there is a problem, but also that any problems will be better addressed by new rules than current rules. No regulatory regime is perfect. Even if there are some identifiable problems with the current rules, that alone does not mean that any particular proposed new rules are preferable. The Commission should carefully consider existing law (like competition and consumer protection laws at both the EU and member-state levels) and whether new rules will bring the overall regulatory scheme closer to the optimal level.”
ICLE Issue Brief Regulatory and legal approaches that make the collection and use of data more expensive along certain dimensions must, at least marginally, induce some companies to alter their behavior to avoid those costs...
Regulatory and legal approaches that make the collection and use of data more expensive along certain dimensions must, at least marginally, induce some companies to alter their behavior to avoid those costs and, consequently, to eschew potentially more beneficial business arrangements in favor of ones that correlate with lower regulatory risk, lower regulatory cost, and/or greater regulatory predictability. “However, regulation often influences behavior in ways that differ from the initially stated rationale.” By disrupting organizational structures designed to work with data, firms will respond to these regulations not only by altering their data collection and use practices, but also the organizational structures that complement them. Such consequences are often unobserved and unintended. The hypothesis presented here is that the actions of over-eager regulatory agencies will have a host of unintended effects not just on data use directly, but on how firms are organized, how business is done, and on corporate governance more broadly. The goal of this project is to discover and elucidate as much of this unseen ground as possible, and to determine the extent to which particular information regulation rules affect these outcomes.
TOTM The Federal Circuit handed down a victory for free expression today — in the commercial context no less. At issue was the Lanham Act’s § 2(a) . . .
The Federal Circuit handed down a victory for free expression today — in the commercial context no less. At issue was the Lanham Act’s § 2(a) prohibition of trademark registrations that…
Read the full piece here.
TOTM I have small children and, like any reasonably competent parent, I take an interest in monitoring their Internet usage. In particular, I am sensitive to . . .
I have small children and, like any reasonably competent parent, I take an interest in monitoring their Internet usage. In particular, I am sensitive to what ad content they are being served and which sites they visit that might try to misuse their information. My son even uses Chromebooks at his elementary school, which underscores this concern for me, as I can’t always be present to watch what he does online. However, also like any other reasonably competent parent, I trust his school and his teacher to make good choices about what he is allowed to do online when I am not there to watch him. And so it is that I am both interested in and rather perplexed by what has EFF so worked up in its FTC complaint alleging privacy “violations” in the “Google for Education” program.
Popular Media The forum was focused on a recent Federal Circuit decision, ClearCorrect v. ITC, in which a divided three judge panel overturned a 5-1 majority decision of . . .
The forum was focused on a recent Federal Circuit decision, ClearCorrect v. ITC, in which a divided three judge panel overturned a 5-1 majority decision of the ITC holding that the Tariff Act granted it the power to prevent the importation of digital articles that infringe a valid U.S. patent. Key to the Federal Circuit’s decision was a hyper-textualist parsing of the term article as understood in 1929“a move that stands in stark contrast to the Federal Circuit’s recent en banc decision in Suprema, which was crucially based on a wider reading of the context of the Tariff Act in order to understand the the full meaning of the phrase articles ¦ that infringe as contained therein.
Critics of the ITC’s interpretation in this matter contend that such jurisdiction would somehow grant the ITC the power to regulate the Internet. However, far from being an expansive power grab, the ITC’s decision was in fact well reasoned and completely consistent with the Tariff Act and Congressional intent. Nonetheless, this remains an important case because the cost of the Federal Circuit’s error could be very high given the importance of IP to the national economy.
Mr. Manne’s slides from the event are available here.
The video (streaming below) can be downloaded here.
Popular Media In this paper we address the law and economics of merger review in the context of an unexpectedly complex market: aluminum can manufacturing and distribution. . . .
In this paper we address the law and economics of merger review in the context of an unexpectedly complex market: aluminum can manufacturing and distribution. With the proposed acquisition of British can manufacturer Rexam PLC by Amer- ican can manufacturer Ball Corp., competition authorities around the world — including those in Brazil, the European Union, and the United States — have re- cently focused their attention on this area. It’s a difficult task to estimate the future consequences of business conduct. Often it is incorrectly assumed that “big is bad,” and that companies seek to merge pre- cisely because their ability to profit at competitors’ and consumers’ expense is in- creased with their larger size. But, at the same time, antitrust authorities have increasingly come to understand that big doesn’t necessarily mean bad — that economies of scale, managerial efficiencies, technological efficiencies, and the like enable firms to compete more effectively in evolving markets.
In this paper we address the law and economics of merger review in the context of an unexpectedly complex market: aluminum can manufacturing and distribution. With the proposed acquisition of British can manufacturer Rexam PLC by Amer- ican can manufacturer Ball Corp., competition authorities around the world — including those in Brazil, the European Union, and the United States — have re- cently focused their attention on this area.
It’s a difficult task to estimate the future consequences of business conduct. Often it is incorrectly assumed that “big is bad,” and that companies seek to merge pre- cisely because their ability to profit at competitors’ and consumers’ expense is in- creased with their larger size. But, at the same time, antitrust authorities have increasingly come to understand that big doesn’t necessarily mean bad — that economies of scale, managerial efficiencies, technological efficiencies, and the like enable firms to compete more effectively in evolving markets.
Presentations & Interviews On December 9, 2015, Geoffrey Manne, Executive Director of the International Center for Law & Economics was a panelist at the Cato Institute’s Policy Forum, The . . .
On December 9, 2015, Geoffrey Manne, Executive Director of the International Center for Law & Economics was a panelist at the Cato Institute’s Policy Forum, The ITC and Digital Trade: The ClearCorrect Decision He was joined by Sapna Kumar, Associate Professor, University of Houston Law Center and Shara Aranoff, Of Counsel, Covington and Burling LLP, and former Chairman of the U.S. International Trade Commission (ITC).
Geoff’s slides from the event are available here. Video of the event is embedded below.
Amicus Brief "The court of appeals’ decision poses a grave risk to the innovation economy. The court condemned as per se violations of the antitrust laws practices that made competition possible in a nascent market through introduction of a new business model..."
“The court of appeals’ decision poses a grave risk to the innovation economy. The court condemned as per se violations of the antitrust laws practices that made competition possible in a nascent market through introduction of a new business model. And it did so in the absence of any precedent holding that the novel combination of practices at issue could be deemed per se illegal. The court of appeals’ decision thus sends a chill wind through industry sectors where entrepreneurs are contemplating the launch of innovative business models to fuel the modern economy.
This Court’s precedent on application of the per se rule is clear: “[I]t is only after considerable experience with certain business relationships that courts classify them as per se violations” of the antitrust laws. Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 9 (1979) (“BMI”). Per se condemnation is appropriate only when a practice lacks any plausible procompetitive rationale. Cal. Dental Ass’n v. FTC, 526 U.S. 756, 771 (1999). If there is no long track record of judicial experience establishing that a practice always or almost always lessens competition, then the practice should be subject to analysis under the rule of reason. BMI, 441 U.S. at 23-24. In that way, a finding that a novel practice (or an old practice in a new context) is anticompetitive may be made only after a rigorous analysis of all the facts and circumstances. Such a rule sensibly avoids unintentional condemnation of economically valuable activity where the full effects of that activity are simply unknown to the courts.
In disregard of these principles, the court of appeals applied the per se rule to a novel combination of competition-enabling practices in an emerging market. The negative consequences of the court’s ruling will be particularly acute for modern high technology sectors of the economy, where entrepreneurs planning to create entirely new markets or inject competition into existing ones through adoption of new business models will now face exactly the sort of artificial deterrents that this Court has strived to prevent. “Mistaken inferences and the resulting false condemnations ‘are especially costly, because they chill the very conduct the antitrust laws are designed to protect…’”
