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Popular Media A debate is brewing in Congress over whether to allow the Federal Trade Commission to sidestep decades of antitrust case law and economic theory to define, on its own, when competition becomes “unfair.”
A debate is brewing in Congress over whether to allow the Federal Trade Commission to sidestep decades of antitrust case law and economic theory to define, on its own, when competition becomes “unfair.” Unless Congress cancels the FTC’s blank check, uncertainty about the breadth of the agency’s power will chill innovation, especially in the tech sector. And sadly, there’s no reason to believe that such expansive power will serve consumers.
Read the full piece here.
Popular Media WATCH: Video
TOTM As Democrats insist that income taxes on the 1% must go up in the name of fairness, one Democratic Senator wants to make sure that . . .
As Democrats insist that income taxes on the 1% must go up in the name of fairness, one Democratic Senator wants to make sure that the 1% of heaviest Internet users pay the same price as the rest of us. It’s ironic how confused social justice gets when the Internet’s involved.
Popular Media Now that the election is over, the Federal Communications Commission is returning to the important but painfully slow business of updating its spectrum management policies . . .
Now that the election is over, the Federal Communications Commission is returning to the important but painfully slow business of updating its spectrum management policies for the 21st century. That includes a process the agency started in September to formalize its dangerously unstructured role in reviewing mergers and other large transactions in the communications industry.
Popular Media Now that the election is over, the Federal Communications Commission is returning to the important but painfully slow business of updating its spectrum management policies for the 21st century.
Excerpt Now that the election is over, the Federal Communications Commission is returning to the important but painfully slow business of updating its spectrum management policies for the 21st century. That includes a process the agency started in September to formalize its dangerously unstructured role in reviewing mergers and other large transactions in the communications industry. This followed growing concern about “mission creep” at the FCC, which, in deals such as those between Comcast and NBCUniversal, AT&T and T-Mobile USA, and Verizon Wireless and SpectrumCo, has repeatedly been caught with its thumb on the scales of what is supposed to be a balance between private markets and what the Communications Act refers to as the “public interest.” Commission reviews of private transactions are only growing more common—and more problematic. The mobile revolution is severely testing the FCC’s increasingly anachronistic approach to assigning licenses for radio frequencies in the first place, putting pressure on carriers to use mergers and other secondary market deals to obtain the bandwidth needed to satisfy exploding customer demand. While the Department of Justice reviews these transactions under antitrust law, the FCC has the final say on the transfer of any and all spectrum licenses. Increasingly, the agency is using that limited authority to restructure communications markets, beltway-style, elevating the appearance of increased competition over the substance of an increasingly dynamic, consumer-driven mobile market. Given the very different speeds at which Silicon Valley and Washington operate, the expanding scope of FCC intervention is increasingly doing more harm than good.
This followed growing concern about “mission creep” at the FCC, which, in deals such as those between Comcast and NBCUniversal, AT&T and T-Mobile USA, and Verizon Wireless and SpectrumCo, has repeatedly been caught with its thumb on the scales of what is supposed to be a balance between private markets and what the Communications Act refers to as the “public interest.”
Commission reviews of private transactions are only growing more common—and more problematic. The mobile revolution is severely testing the FCC’s increasingly anachronistic approach to assigning licenses for radio frequencies in the first place, putting pressure on carriers to use mergers and other secondary market deals to obtain the bandwidth needed to satisfy exploding customer demand.
While the Department of Justice reviews these transactions under antitrust law, the FCC has the final say on the transfer of any and all spectrum licenses. Increasingly, the agency is using that limited authority to restructure communications markets, beltway-style, elevating the appearance of increased competition over the substance of an increasingly dynamic, consumer-driven mobile market.
Given the very different speeds at which Silicon Valley and Washington operate, the expanding scope of FCC intervention is increasingly doing more harm than good.
Continue reading on Bloomberg BNA
Popular Media I will be participating in a wide-ranging discussion of Google and antitrust issues at the upcoming AALS meeting in New Orleans in January. The Antitrust . . .
I will be participating in a wide-ranging discussion of Google and antitrust issues at the upcoming AALS meeting in New Orleans in January. The Antitrust and Economic Regulation Section of the AALS is hosting the roundtable, organized by Mike Carrier. Mike and I will be joined by Marina Lao, Frank Pasquale, Pam Samuelson, and Mark Patterson, and the discussion will cover Google Book Search as well as the FTC investigations/possible cases against Google based on search and SEPs.
The session will be on Saturday, January 5, from 10:30 to 12:15 in the Hilton New Orleans Riverside (Newberry, Third Floor).
(Papers to be published in Harvard Journal of Law & Technology Digest)
Moderator:
Michael A. Carrier, Rutgers School of Law – Camden
Speakers:
Marina L. Lao, Seton Hall University School of Law
Geoffrey A. Manne, Lewis & Clark Law School
Frank A. Pasquale, Seton Hall University School of Law
Mark R. Patterson, Fordham University School of Law
Pamela Samuelson, University of California, Berkeley, School of Law
How should the antitrust laws apply to Google? Though the question is simple, the answer implicates an array of far-reaching issues related to how we access information and how we interact with others. This program will feature a distinguished panel engaging in a fastpaced discussion (no PowerPoints!) about these topics.
The panel will explore the Federal Trade Commission’s potential case against Google. It will discuss Google’s position in the search market and potential effects of its conduct on rivals. The panel also will explore the nuances of the Google Book Search settlement. What would – and should – antitrust law do about the project? How should the procompetitive justifications of the increased availability of books be weighed against the effects of the project on rivals?
Antitrust’s role in a 21st-century economy is frequently debated. Google provides a fruitful setting in which to discuss these important issues.
Filed under: announcements, antitrust, google Tagged: AALS, antitrust, Association of American Law Schools, Federal Trade Commission, ftc, google
Regulatory Comments The FCC’s current policies and rules regarding mobile spectrum holdings are in desperate need of an upgrade.
The FCC’s current policies and rules regarding mobile spectrum holdings are in desperate need of an upgrade. The landscape of the wireless market has changed dramatically over the last several years, and consumers’ demand for mobile broadband services is skyrocketing with little new supply [of spectrum?] coming online [available?] in the near future. If consumers’ demands are to be met, spectrum must be allowed to “rise to its highest valued use.” This means there must be a functional market by which spectrum can be transferred from those who currently hold it to those who value it more. In other words, to paraphrase Frank Herbert’s classic novel Dune, “the spectrum must flow!”
But for that to happen the FCC can’t sit as an impediment to consumer-welfare enhancing transactions that re-allocate spectrum to these highest valued uses. The Commission’s current spectrum transfer review process is not up to the task, and some of the proposed reforms would only exacerbate the problem. Heeding Commissioner’s McDowell’s urging that “interested parties [] comment on the potential for negative market effects should the Commission inch down the road toward spectrum caps or other new mandates,” we submit this comment to suggest that the FCC must adopt a more economically-rigorous approach to license transfer reviews — one that does not trade away effectiveness for the sake of mere administrability nor dynamic, forward-looking efficiency for the sake of the Commission’s flawed vision of an optimal, static market structure.
Rather, the FCC should follow the lead of its antitrust agency counterparts and employ a “rule of reason” analysis in its review of spectrum transfers. Moreover, the FCC should defer to the comparative advantage of its antitrust agency counterparts in the review of transactions that come before both the FCC and the DOJ or FTC, and forebear from such analysis entirely except to inform and advise the DOJ’s or FTC’s comprehensive antitrust review. Under no circumstances should the FCC re-impose spectrum caps or other new mandates that would only serve to thwart, not encourage, the progress of our wireless markets: While the current review process is flawed, a spectrum cap would be even worse.
TOTM As the Google antitrust discussion heats up on its way toward some culmination at the FTC, I thought it would be helpful to address some . . .
As the Google antitrust discussion heats up on its way toward some culmination at the FTC, I thought it would be helpful to address some of the major issues raised in the case by taking a look at what’s going on in the market(s) in which Google operates. To this end, I have penned a lengthy document — The Market Realities that Undermine the Antitrust Case Against Google — highlighting some of the most salient aspects of current market conditions and explaining how they fit into the putative antitrust case against Google.
TOTM In the past two weeks, Members of Congress from both parties have penned scathing letters to the FTC warning of the consequences (both to consumers and the agency . . .
In the past two weeks, Members of Congress from both parties have penned scathing letters to the FTC warning of the consequences (both to consumers and the agency itself) if the Commission sues Google not under traditional antitrust law, but instead by alleging unfair competition under Section 5 of the FTC Act. The FTC is rumored to be considering such a suit, and FTC Chairman Jon Leibowitz and Republican Commissioner Tom Rosch have expressed a desire to litigate such a so-called “pure” Section 5 antitrust case — one not adjoining a cause of action under the Sherman Act. Unfortunately for the Commissioners, no appellate court has upheld such an action since the 1960s.
