The European Commission’s recently concluded consultation on “the future of the electronic communications sector and its infrastructure” was a curious phenomenon in which the commission revived the seemingly dead-and-buried idea of a legally mandated “sender pays” network-traffic scheme, despite the fact that it remains as unpopular and discredited as it was when last discussed roughly a decade ago.

Read the full piece here.

While persistent gridlock continues to bedevil Congress, federal agencies have been busy pushing the boundaries of their authority. The Federal Trade Commission (FTC) is trying to ban noncompete agreements. The Securities and Exchange Commission (SEC) is puzzling over cryptocurrencies. The Environmental Protection Agency (EPA) is pushing regulations to address climate change.

At the same time, the U.S. Supreme Court is telling agencies that they cannot act without clear congressional authority. What’s an agency to do? The answer is disarmingly simple: nothing, until Congress clearly directs them otherwise.

Read the full piece here.

Introduction

Over the last two decades, standard essential patents (SEPs) have been at the centre of a lively debate among scholars, courts and competition authorities, mainly on the competitive implications of the successful adoption of a standard. Indeed, standards are key to ensuring interoperability and technical compatibility across a broad range of modern industries, but at the same time, they come with exclusionary effects for companies precluded from practicing the standard. For these reasons, standards development organisations (SDOs) typically adopt disclosure and licensing rules, requiring firms taking part in a standardisation initiative to disclose the existence of any intellectual property right (IPR) that might cover a technology considered to be implemented into the standard and clarify whether they would be willing to offer a licence to such IPR on fair, reasonable and non-discriminatory (FRAND) terms if the technology is implemented into the standard.

Much of the attention has so far been devoted to the economic and legal meanings of FRAND commitments as a mechanism to avoid hold-up and reverse hold-up problems between licensors and licensees, thus preventing SEPs holders from demanding excessively high royalties when implementers are locked-in to a standard and licensees from engaging in strategic practices to escape the payment of royalties or depress prices, respectively. However, SDOs’ disclosure rules also deserve similar consideration.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss the Federal Trade Commission’s (FTC) recent settlement with Amazon of a claim regarding children’s privacy, as well as separate FTC efforts to rewrite its 2019 consent decree with Meta over children’s advertising and services.

Other topics included Amazon settling another FTC  complaint over security failings at its Ring doorbell operation; Microsoft losing a data protection case in Ireland; and whether automated tip suggestions should be condemned as “dark patterns.”

The full episode is embedded below.

President Joe Biden’s big plans for the Federal Communications Commission, including the reimposition of so-called “net neutrality” rules that were rolled back during the Trump years, may finally move forward if the U.S. Senate agrees to confirm Biden’s recent nominee Anna Gomez to be the commission’s fifth member and decisive vote.

A history of support for net neutrality was one of the things that ultimately doomed the confirmation prospects for prior nominee Gigi Sohn, who withdrew her name in February, 16 months after Biden originally nominated her. Senators are sure to press Gomez for her thoughts on the same issue, as they should, but it’s not the only matter deserving of scrutiny. As policymakers continue to explore ways to expand affordable internet access, they should also determine where Gomez stands on the key issue of rate regulation.

Read the full piece here.

In my last roundup, I puzzled over the Federal Trade Commission’s (FTC) suit to block Amgen’s acquisition of Horizon Therapeutics. The deal involved no product overlaps whatsoever (i.e., no horizontal competition), a target firm acknowledged to have no competitors for the orphan drugs at issue, and nobody poised to enter into competition either.

I won’t recapitulate the details of my confusion here, but I will point to a new piece by Bill MacLeod (a past chair of the American Bar Association’s Antitrust Section and a former FTC bureau director) and David Evans, in which they raise an issue I didn’t cover: “The Federal Trade Commission may have filed the first merger complaint in a generation that could be dismissed for failure to state a claim.” Which would not look good.

Read the full piece here.

Announced with the sort of breathless press release one might expect for the launch of a new product like Waystar Royco’s Living+, the Federal Communications Commission (FCC) has gone into full-blown spin mode over its latest broadband map.

This is, to be clear, the map that the National Telecommunications and Information Administration (NTIA) will use to allocate $42.5 billion to states from NTIA’s Broadband Equity, Access, and Deployment (BEAD) program. Specific allocations are expected to be announced by June 30.

Read the full piece here.

The €1.2 billion fine that the Irish Data Protection Commission (DPC) against Meta marks a new record for violation of the EU’s General Data Protection Regulation (GDPR), but it is the DPC’s order that the company to shut off its transatlantic flow of user data that will have the most far-reaching consequences for international trade, privacy policy, and the rule of law.

Read the full piece here.

The unraveling of the rule of law in finance is inherent in the system’s discretionary process of regulation. Each financial crisis begets new regulations and new regulatory agencies with more expansive and discretionary powers. The general entanglement of finance, leftist interest groups, and the federal regulatory apparatus has created a threat to freedom that is almost unique in history. Leftist activists, “woke” corporations, and regulators and politicians have recognized and acted on the opportunity to use the financial regulatory system both to enact preferred policies through anti-democratic means and to silence their ideological opponents. As governmental power grows, the threat of its misuse grows concomitantly.