ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality of the Federal Trade Commission’s (FTC) current structure. Other subjects tackled include South Korea’s law imposing internet costs on content providers, the Biden Federal Communications Commission’s first two months with a majority, the race to 5G, and the FTC’s last-ditch appeal to stop the Microsoft-Activision merger. Audio of the full episode is embedded below.

Betteridge’s Law of Headlines states: “Any headline that ends in a question mark can be answered by the word no.” But, apparently, folks in the nation’s capital found a way around Betteridge’s Law.

This week, a U.S. House subcommittee hearing featured testimony from all five members of the Federal Communications Commission (FCC). The majority on the House Energy and Commerce Subcommittee on Communications and Technology did away with the question mark, titling the hearing “Oversight of President Biden’s Broadband Takeover.”

While it might be a stretch to call the administration’s broadband-policy agenda a “takeover,” one can be forgiven for concluding that the FCC is moving forward with so many massive and comprehensive interventions in nearly every aspect of the broadband market that it looks a lot like a takeover.

Read the full piece here.

Abstract

As an industry, communications satellites have traced a wobbly trajectory. Envisioned to bring revolutionary advances to telecommunications services in the U.S. Communications Satellite Act of 1962, the marketplace did open via Comsat, a public-private partnership. But the sluggish pace was revealed a decade later when progress increased substantially with the Open Skies policy. Free entry collapsed costs for wide area distribution of broadcasting services, launching the U.S. cable television industry (disrupting the TV broadcasting triopoly) in the 1980s and then direct-to-subscriber satellite TV (challenging the new incumbent cable operators) in the 1990s. In ensuing decades, however, fortunes reversed. Satellite phone and broadband service providers—Iridium, Teledesic, Motient, Intelsat and many others—financially crashed and burned. Yet another reversal may now be in evidence, however: satellites in service have increased more than three-fold in the past decade. Spasms of technological progress, including gains in small device electronics, are driving market change: “While some [satellites] are the size of a bus and weighing over 6,000 pounds, they can also be as small as a lunchbox,” noted a 2018 Aspen Institute report. “Constellations can now be composed of hundreds or even thousands of satellites.” The new mega-constellations are creating a crowded sky. With demand for orbital slots and complementary radio bands dramatically intensifying, new policy formulations are being floated. We outline possible innovations in spectrum property rights.

Hootenannies are mostly peaceful affairs, so it’s a bit awkward to invoke a violent metaphor here.

In “Raiders of the Lost Ark,” Indiana Jones runs down a Cairo sidestreet only to be confronted by a swordsman. The swordsman makes a big show of tossing his weapon from hand-to-hand and swirling it around. But Indy has no time for such nonsense—he pulls out his gun and shoots the would-be assassin.

U.S. spectrum policy is much like the swordsman. While the telecom regulators swirl around studies of how to allocate spectrum, the rest of the world is pulling the trigger.

Read the full piece here.

Abstract

It is always an appropriate time to reevaluate, reexamine, and question the optimal scope and shape of our antitrust institutions. For example, the United States is peculiar in having two distinct antitrust enforcement agencies. More peculiar still, the agencies have both common and unique functions. For example, both the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) review mergers pursuant to Section 7 of the Clayton Act and enforce Sections 1 and 2 of the Sherman Act through civil actions. At the same time, the Division alone is responsible for criminal enforcement of the Sherman Act, and the FTC alone enforces the Clayton Act provisions that prohibit tying and unfair methods of competition. Layered atop the peculiar dual jurisdiction of the FTC and DOJ at the federal level is a remarkably complex and decentralized system of competition enforcement authority distributed among myriad federal sectoral regulators, state attorneys general, and private litigants.

This article asks whether the current distribution of competition functions in the U.S. can be improved by some reorganization or other reform. We answer in the affirmative and propose several changes — perhaps the most significant being consolidating the competition functions of the FTC into the Antitrust Division. We also propose stripping the Federal Communications Commission of authority independently to review mergers, as the Congress did with regard to the Department of Transportation in view of its similarly poor performance reviewing airline mergers. Our more general proposals regarding the authority of sectoral regulators over competition should not be overlooked, however; it would do much good and has little or no downside.

Read at SSRN.

It happens at just about every hootenanny. There’s always at least one song that clears the dance floor. Some tunes, people just won’t dance to. But with a little remixing and a better tempo, even a dirge can be danceable.

For years, the Federal Communications Commission (FCC) has refused to dance to the tune of research that suggests Title II regulation depresses broadband investment. But a recently published paper changes the tune so much that the FCC can’t—or at least shouldn’t—ignore the vibe.

Read the full piece here.

Idon’t mean to sound like a broken record, but why is the Federal Communications Commission (FCC) playing a broken record?

I’ve been writing a fair bit about Federal Trade Commission (FTC) rulemaking initiatives. On the theory that you deserve a nominal break from all of that, this post is mostly about the FCC.

On Sept. 28, the FCC published a “fact sheet” and a notice of proposed rulemaking (NPRM) on “Safeguarding and Securing the Open Internet.” Just shy of a month later, on Oct. 25, the FCC published another “fact sheet” and NPRM—this one, on “Preventing Digital Discrimination.”

My International Center for Law & Economics (ICLE) colleague Eric Fruits has written about the proposals here, here, here, here, here, and, with our colleague Ben Sperry, here. ICLE’s Kristian Stout is here. Eric explains how, in relatively straightforward fashion, the anti-discrimination requirements could lead to price regulation, notwithstanding the FCC’s own observation that “there is little to no evidence of intentional digital discrimination of access.”

Read the full piece here.

Federal Communications Commission (FCC) Chair Jessica Rosenworcel this week announced a notice of inquiry (NOI) seeking input on a proposal to raise the minimum connection-speed benchmarks that the commission uses to define “broadband.” The current benchmark speed is 25/3 Mbps. The chair’s proposal would raise the benchmark to 100/20 Mbps, with a goal of having a benchmark of 1000/500 Mbps by the year 2030.

Read the full piece here.

The Federal Communications Commission’s (FCC) proposed digital-discrimination rules hit the streets earlier this month and, as we say at Hootenanny Central, they’re a real humdinger.

It looks like the National Telecommunications and Information Agency (NTIA) got most of their wishlist incorporated into the proposed rules. We’ve got disparate impact and a wide-open door for future rate regulation.

Here’s the tl;dr version of the new rules. More details at the end of this post.

Read the full piece here.