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.

It is no coincidence that ordoliberalism—the European (originally German) alternative to classical liberalism that emphasized the importance of the “social market” economy—and the New Brandeis or “neo-Brandeisian” movement, which harkens back to the Progressive Era thought of the late U.S. Supreme Court Justice Louis Brandeis, both are enjoying comebacks simultaneously. The effects of these ideological resurgences are most apparent specifically in the field of antitrust law (see here and here). But you can also see them in the broader political-economy movement to formulate an alternative to “neoliberalism” (here and here) that at least some audience find appealing.

The antitrust mainstream has long dismissed the ideas associated with these movements as populist, romantic, or naïve. Being called an “ordoliberal” was, until relatively recently, considered an epithet in Europe. And before individuals associated with their views were elevated into the U.S. antitrust establishment, gaining the attendant aura of respectability that accompanies occupying such lofty heights, the neo-Brandeisians were commonly derided as practicing “hipster antitrust.”

But these glib dismissals underestimated, at their own expense, the visceral appeal of the arguments the ordoliberals and neo-Brandeisians put forward. Ideas that had been relegated to the fringes of academia have begun to seep into the mainstream, and now threaten to upend the “neoliberal” antitrust order—all because opponents refused to take them seriously. As in the past, this trend can only be reverted through a better understanding of why these ideologies are so attractive, and why they ultimately fall flat.

Read the full piece here.

Here in New Jersey, where I live, the day before Halloween is commonly celebrated as “Mischief Night,” an evening of adolescent revelry and light vandalism that typically includes hurling copious quantities of eggs and toilet paper.

It is perhaps fitting, therefore, that President Joe Biden chose Oct. 30 to sign a sweeping executive order (EO) that could itself do quite a bit of mischief. And befitting the Halloween season, in proposing this broad oversight regime, the administration appears to be positively spooked by the development of artificial intelligence (AI).

The order, of course, embodies the emerging and now pervasive sense among policymakers that they should “do something” about AI; the EO goes so far as to declare that the administration feels “compelled” to act on AI. It largely directs various agencies to each determine how they should be involved in regulating AI, but some provisions go further than that. In particular, directives that set new reporting requirements—while ostensibly intended to forward the reasonable goal of transparency—could end up doing more harm than good.

Read the full piece here.

Abstract

Administrative law judges’ (ALJs’) relative lack of formal independence has engendered worries that they give agencies a home-court advantage. We examine the 2010 Dodd-Frank Act, which allowed the Securities and Exchange Commission (SEC) to move cases into its administrative court. The problem with this policy experiment is that the SEC retains the discretion to bring cases in federal court, so it is impossible to identify which cases the policy treats. We propose a difference-in-differences design, using natural-language-processing methods to create control and treatment groups. We construct propensity scores using random-forest methods. After binning cases into likely or not likely to be affected by the courts’ expansion, the difference-in-differences estimation indicates that the expansion made defendants 30 percentage points more likely to settle and 36 percentage points more likely to receive a nonmonetary penalty. There is a 24-percentage-point reduction in the likelihood of a monetary penalty.

One of the most important changes in the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) draft merger guidelines is the abandonment of market power as the central element of merger enforcement. The “unifying theme” of the 2010 horizontal merger guidelines was that “mergers should not be permitted to create, enhance, or entrench market power or to facilitate its exercise.” The draft guidelines have dropped the unifying theme language.

The guidelines’ abandonment of enhancement of market power as the central element of merger enforcement will have profound consequences for antitrust. One consequence is that merger enforcement will no longer prioritize consumers over competitors of the merging firms. Another important consequence, however, is the loss of a limiting principle in merger enforcement. Courts recognize that enhancement of market power is a necessary element of a merger challenge under antitrust law. The U.S. Circuit Court of Appeals for the D.C. Circuit made this point clear in its 2001 FTC v. H.J. Heinz opinion when it held that “[m]erger enforcement, like other areas of antitrust, is directed at market power.” The draft guidelines have removed enhancement of market power as a necessary element of a merger case.

Read the full piece here.

This is a big week for Meta-related EU privacy news. On Monday, Meta announced that it would allow users to pay for ad-free versions of Facebook and Instagram. I explained what arguably went wrong in EU law to force Meta to do this in a previous newsletter. Now, the European Data Protection Board (EDPB) has reportedly ruled that Meta broke EU privacy law by processing personal data for personalised advertising. See below for what I can tell so far about the new decision and for a brief overview of its background. More to follow once the EDPB decision is published.

Read the full piece here.

ICLE Nonresident Scholar Joanna Shepherd and coauthor Michael Kang joined the American Constitution Society’s Broken Law Podcast to discuss their new book “Free to Judge: The Power of Campaign Money in Judicial Elections.” Audio of the full episode is embedded below.

Meta officially announced that Facebook and Instragram will offer a paid subscription service tier without any ads. The move was prompted by recent enforcement actions by European privacy authorities and a judgment by the EU’s highest court, the Court of Justice. I’ll dive deeper into those developments in future posts. I believe that much of this is both bad law and bad policy. Today, I start with an overview, aiming to provide a simplified explanation.

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.