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TOTM After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied.
After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied. For instance, I think the law and economics tradition, specifically the insights of Ludwig von Mises and Friedrich von Hayek on the importance of price signals, can explain one of the major problems for public defenders and their clients: without price signals, there is no rational way to determine the best way to spend one’s time.
Read the full piece here.
TOTM Nearly all economists from across the political spectrum agree: free trade is good. Yet free trade agreements are not always the same thing as free . . .
Nearly all economists from across the political spectrum agree: free trade is good. Yet free trade agreements are not always the same thing as free trade. Whether we’re talking about the Trans-Pacific Partnership or the European Union’s Digital Single Market (DSM) initiative, the question is always whether the agreement in question is reducing barriers to trade, or actually enacting barriers to trade into law.
Popular Media Remember when net neutrality wasn’t going to involve rate regulation and it was crazy to say that it would? Or that it wouldn’t lead to . . .
Remember when net neutrality wasn’t going to involve rate regulation and it was crazy to say that it would? Or that it wouldn’t lead to regulation of edge providers? Or that it was only about the last mile and not interconnection? Well, if the early petitions and complaints are a preview of more to come, the Open Internet Order may end up having the FCC regulating rates for interconnection and extending the reach of its privacy rules to edge providers.
On Monday, Consumer Watchdog petitioned the FCC to not only apply Customer Proprietary Network Information (CPNI) rules originally meant for telephone companies to ISPs, but to also start a rulemaking to require edge providers to honor Do Not Track requests in order to “promote broadband deployment” under Section 706. Of course, we warned of this possibility in our joint ICLE-TechFreedom legal comments:
For instance, it is not clear why the FCC could not, through Section 706, mandate “network level” copyright enforcement schemes or the DNS blocking that was at the heart of the Stop Online Piracy Act (SOPA). . . Thus, it would appear that Section 706, as re-interpreted by the FCC, would, under the D.C. Circuit’s Verizon decision, allow the FCC sweeping power to regulate the Internet up to and including (but not beyond) the process of “communications” on end-user devices. This could include not only copyright regulation but everything from cybersecurity to privacy to technical standards. (emphasis added).
While the merits of Do Not Track are debatable, it is worth noting that privacy regulation can go too far and actually drastically change the Internet ecosystem. In fact, it is actually a plausible scenario that overregulating data collection online could lead to the greater use of paywalls to access content. This may actually be a greater threat to Internet Openness than anything ISPs have done.
And then yesterday, the first complaint under the new Open Internet rule was brought against Time Warner Cable by a small streaming video company called Commercial Network Services. According to several news stories, CNS “plans to file a peering complaint against Time Warner Cable under the Federal Communications Commission’s new network-neutrality rules unless the company strikes a free peering deal ASAP.” In other words, CNS is asking for rate regulation for interconnection. Under the Open Internet Order, the FCC can rule on such complaints, but it can only rule on a case-by-case basis. Either TWC assents to free peering, or the FCC intervenes and sets the rate for them, or the FCC dismisses the complaint altogether and pushes such decisions down the road.
This was another predictable development that many critics of the Open Internet Order warned about: there was no way to really avoid rate regulation once the FCC reclassified ISPs. While the FCC could reject this complaint, it is clear that they have the ability to impose de facto rate regulation through case-by-case adjudication. Whether it is rate regulation according to Title II (which the FCC ostensibly didn’t do through forbearance) is beside the point. This will have the same practical economic effects and will be functionally indistinguishable if/when it occurs.
In sum, while neither of these actions were contemplated by the FCC (they claim), such abstract rules are going to lead to random complaints like these, and companies are going to have to use the “ask FCC permission” process to try to figure out beforehand whether they should be investing or whether they’re going to be slammed. As Geoff Manne said in Wired:
That’s right—this new regime, which credits itself with preserving “permissionless innovation,” just put a bullet in its head. It puts innovators on notice, and ensures that the FCC has the authority (if it holds up in court) to enforce its vague rule against whatever it finds objectionable.
I mean, I don’t wanna brag or nothin, but it seems to me that we critics have been right so far. The reclassification of broadband Internet service as Title II has had the (supposedly) unintended consequence of sweeping in far more (both in scope of application and rules) than was supposedly bargained for. Hopefully the FCC rejects the petition and the complaint and reverses this course before it breaks the Internet.
Filed under: administrative, federal communications commission, international center for law & economics, internet, net neutrality, political economy, politics, regulation, technology, telecommunications Tagged: FCC, Federal Communications Commission, internet, net neutrality, Open Internet Order, politics, Time Warner Cable
Regulatory Comments "Promoting broadband deployment should be the overarching goal of everything the FCC does. To that extent, we applaud the Commission for finding time to include an eleven (11) - paragraph Notice of Inquiry about how promote broadband deployment in its new Broadband Progress Report..."
“Promoting broadband deployment should be the overarching goal of everything the FCC does. To that extent, we applaud the Commission for finding time to include an eleven (11) – paragraph Notice of Inquiry about how promote broadband deployment in its new Broadband Progress Report. Yet this seems to be, quite literally, an afterthought — a small gesture towards removing actual barriers to broadband deployment after a significant expenditure of staff resources on crafting new regulations that either have nothing to do with broadband deployment or would probably discourage broadband deployment…”
Popular Media On Wednesday, March 18, our fellow law-and-economics-focused brethren at George Mason’s Law and Economics Center will host a very interesting morning briefing on the intersection of privacy, . . .
Please join the LEC in person or online for a morning of lively discussion on this topic. FTC Commissioner Maureen K. Ohlhausen will set the stage by discussing her Antitrust Law Journal article, “Competition, Consumer Protection and The Right [Approach] To Privacy“. A panel discussion on big data and antitrust, which includes some of the leading thinkers on the subject, will follow. Other featured speakers include: Allen P. Grunes Founder, The Konkurrenz Group and Data Competition Institute Andres Lerner Executive Vice President, Compass Lexecon Darren S. Tucker Partner, Morgan Lewis Nathan Newman Director, Economic and Technology Strategies LLC Moderator: James C. Cooper Director, Research and Policy, Law & Economics Center A full agenda is available click here.
Allen P. Grunes Founder, The Konkurrenz Group and Data Competition Institute
Andres Lerner Executive Vice President, Compass Lexecon
Darren S. Tucker Partner, Morgan Lewis
Nathan Newman Director, Economic and Technology Strategies LLC
Moderator: James C. Cooper Director, Research and Policy, Law & Economics Center
Filed under: announcements, antitrust, consumer protection, privacy, truth on the market Tagged: antitrust, big data, consumer protection, Federal Trade Commission, ftc, George Mason University School of Law, Law and Economics Center
Popular Media For those in the DC area interested in telecom regulation, there is another great event opportunity coming up next week. Join TechFreedom on Thursday, December 19, the . . .
For those in the DC area interested in telecom regulation, there is another great event opportunity coming up next week.
Join TechFreedom on Thursday, December 19, the 100th anniversary of the Kingsbury Commitment, AT&T’s negotiated settlement of antitrust charges brought by the Department of Justice that gave AT&T a legal monopoly in most of the U.S. in exchange for a commitment to provide universal service.
The Commitment is hailed by many not just as a milestone in the public interest but as the bedrock of U.S. communications policy. Others see the settlement as the cynical exploitation of lofty rhetoric to establish a tightly regulated monopoly — and the beginning of decades of cozy regulatory capture that stifled competition and strangled innovation.
So which was it? More importantly, what can we learn from the seventy year period before the 1984 break-up of AT&T, and the last three decades of efforts to unleash competition? With fewer than a third of Americans relying on traditional telephony and Internet-based competitors increasingly driving competition, what does universal service mean in the digital era? As Congress contemplates overhauling the Communications Act, how can policymakers promote universal service through competition, by promoting innovation and investment? What should a new Kingsbury Commitment look like?
Following a luncheon keynote address by FCC Commissioner Ajit Pai, a diverse panel of experts moderated by TechFreedom President Berin Szoka will explore these issues and more. The panel includes:
Space is limited so RSVP now if you plan to attend in person. A live stream of the event will be available on this page. You can follow the conversation on Twitter on the #Kingsbury100 hashtag.
When: Thursday, December 19, 2013 11:30 – 12:00 Registration & lunch 12:00 – 1:45 Event & live stream
The live stream will begin on this page at noon Eastern.
Where: The Methodist Building 100 Maryland Ave NE Washington D.C. 20002
Questions? Email [email protected].
Filed under: federal communications commission, net neutrality, regulation, technology, telecommunications, wireless Tagged: at&t, Berin Szoka, Commissioner Pai, Federal Communications Commission, Fred Campbell, Hance Haney, Harold Feld, Jeff Eisenach, Kingsbury Commitment, Rob Atkinson, techfreedom
Popular Media As it begins its hundredth year, the FTC is increasingly becoming the Federal Technology Commission. The agency’s role in regulating data security, privacy, the Internet of Things, high-tech . . .
FTC Commissioner Josh Wright will give a keynote luncheon address titled, “The Need for Limits on Agency Discretion and the Case for Section 5 UMC Guidelines.” Project members will discuss the themes raised in our inaugural report and how they might inform some of the most pressing issues of FTC process and substance confronting the FTC, Congress and the courts. The afternoon will conclude with a Fireside Chat with former FTC Chairmen Tim Muris and Bill Kovacic, followed by a cocktail reception.
Full Agenda:
Filed under: antitrust, consumer protection, federal trade commission, international center for law & economics, law and economics, scholarship Tagged: Bill Kovacic, ftc, FTC Commissioner, FTC Technology & Reform Project, geoffrey manne, Josh Wright, Keynote, Law and economics, Technology & Reform Project, Tim Muris, todd zywicki
Popular Media Please join us at the Willard Hotel in Washington, DC on December 16th for a conference launching the year-long project, “FTC: Technology and Reform.” With . . .
Please join us at the Willard Hotel in Washington, DC on December 16th for a conference launching the year-long project, “FTC: Technology and Reform.” With complex technological issues increasingly on the FTC’s docket, we will consider what it means that the FTC is fast becoming the Federal Technology Commission.
The FTC: Technology & Reform Project brings together a unique collection of experts on the law, economics, and technology of competition and consumer protection to consider challenges facing the FTC in general, and especially regarding its regulation of technology.
For many, new technologies represent “challenges” to the agency, a continuous stream of complex threats to consumers that can be mitigated only by ongoing regulatory vigilance. We view technology differently, as an overwhelmingly positive force for consumers. To us, the FTC’s role is to promote the consumer benefits of new technology — not to “tame the beast” but to intervene only with caution, when the likely consumer benefits of regulation outweigh the risk of regulatory error. This conference is the start of a year-long project that will recommend concrete reforms to ensure that the FTC’s treatment of technology works to make consumers better off.
Convened by TechFreedom and the International Center for Law & Economics, the FTC Technology & Reform Project includes academics, practitioners, policy experts and several former FTC Commissioners and staffers. Our initial report, to be released around the December 16th event, will identify critical questions facing the agency, Congres, and the courts about the FTC’s future and will propose a framework for addressing them.
FTC Commissioner Joshua Wright will kick off the half-day conference with a luncheon keynote. Following his remarks, Project members will discus principal aspects of our initial report. The event will conclude with a networking reception. Attendees will include a wide variety of practitioners and scholars with expertise working at the Commission or counseling businesses about it.
RSVP Today!
When: Monday, December 16, 2013 11:30 – Registration opens 12:00 – 5:30 pm – Luncheon keynote & conference 5:30 – 6:30 p.m. – Reception
Where: The Willard Hotel 1401 Pennsylvania Ave NW Washington, DC 20004
Filed under: antitrust, consumer protection, federal trade commission, international center for law & economics, law and economics, truth on the market Tagged: Commissioner, Commissioner Wright, consumer, Federal Trade Commission, ftc, technology, Washington DC
TOTM The Children’s Online Privacy Protection Act (COPPA) continues to be a hot button issue for many online businesses and privacy advocates. On November 14, Senator . . .
The Children’s Online Privacy Protection Act (COPPA) continues to be a hot button issue for many online businesses and privacy advocates. On November 14, Senator Markey, along with Senator Kirk and Representatives Barton and Rush introduced the Do Not Track Kids Act of 2013 to amend the statute to include children from 13-15 and add new requirements, like an eraser button. The current COPPA Rule, since the FTC’s recent update went into effect this past summer, requires parental consent before businesses can collect information about children online, including relatively de-identified information like IP addresses and device numbers that allow for targeted advertising.
