Submitted by Scott Cleland on Fri, 2016-07-22 12:34
The EU’s recent intense antitrust spotlight on Google can’t help but illuminate some of what EU antitrust authorities think about other dominant consumer technology platforms adjacent to Google -- i.e. Amazon, Facebook, and Apple – companies Europe collectively refers to as “GAFA” particularly in the context of the EU’s Digital Single Market strategy.
In 2011, Alphabet Chairman Eric Schmidt was the first to identify, and publicly bring attention to, these particular four dominant consumer technology companies “exploiting platform strategies” ironically by branding them the “gang of four.”
Submitted by Scott Cleland on Fri, 2016-07-15 18:15
With the EU’s new advertising antitrust charges against Google, the EU has now issued three Google abuse-of-dominance Statement of Objections covering search, mobile, and advertising, that actually span seven separately defined antitrust markets in the EU.
So what does this strategically-critical new EU-Google advertising Statement of Objections -- that builds upon the other two statements of objection – finally tell us about the EU’s overall Google antitrust strategy?
Submitted by Scott Cleland on Tue, 2016-07-12 12:43
Of the three EU antitrust cases against Google (search bias in shopping, Android tying, and soon search-advertising-tying), the expected new search-advertising case -- which focuses on how Google has long contractually required websites to use Google’s search advertising if they use Google search -- could be the hardest EU-Google antitrust case for the FTC to ignore, for the reasons below.
Summary of Why It’s Hard for FTC to Ignore the EU Search-Advertising Antitrust Case:
1. The FTC has been following the EU’s antitrust lead.
2. The FTC’s Google 2012 staff report agrees with the EU’s conclusion on search advertising.
3. The DOJ threatened a 2008 monopolization case over Google’s search advertising syndication.
Submitted by Scott Cleland on Wed, 2016-07-06 20:12
[Note: This was submitted to the FCC for Reply Comments on the Title II Privacy NPRM]
The FCC’s Open Internet order and proposed Title II privacy rules divided what was unified.
For privacy, it broke what was working. Confused what was clear. Complicated what was simple. Unprotected what they sought to protect. Created more costs than benefits.
Since the Internet’s beginning the FTC has had privacy authority over information services.
For the decade since the FCC classified cable, wireless, and DSL broadband as an information service, and for the entire smartphone era where consumers became familiar with online privacy issues and regulation, the FTC was the sole unified regulator for protecting American consumers’ privacy.
In a 2014 filing to the FCC, the FTC explained why the FTC was better positioned to protect consumer privacy and data security than the FCC, because the FTC had national direct statutory authority to protect all consumers under: Section 5 -- that proscribes “deceptive” or “unfair” business practices; the Fair Credit Reporting Act (FCRA); and the Children’s Online Privacy Protection Act, (COPPA).
Submitted by Scott Cleland on Tue, 2016-06-21 17:08
The likelihood improved this week, that the Supreme Court could have an interest in hearing an appeal of the recent USTelecom v. FCC court decision that granted the FCC complete Chevron deference to uphold the FCC’s Title II reclassification of ISPs as utilities. That’s because a new unanimous 8-0 Supreme Court decision suggests that the USTelecom Court may have granted the FCC too much legal Chevron deference on its Title II reclassification. (A hat tip to Gus Hurwitz’ tweet for flagging the Title II relevance of this SCOTUS case and his great legal analysis is here.)
Submitted by Scott Cleland on Mon, 2016-06-20 11:48
Are the FCC’s set-top-box proposed rules really about unlocking the set-top-box to competition or are they really about advancing Google and Public Knowledge’s real agenda – forced unlocking of the licensing and copyright protections of the underlying video programming that generates ~$200b in annual revenues?
In response to the FCC Chairman’s request for an alternative approach to the FCC’s current AllVid proposed rules, the Pay TV coalition has proposed an app-based solution that solves all of the FCC’s publicly-stated problems with cable set-top boxes.
Submitted by Scott Cleland on Wed, 2016-06-15 17:47
The DC Circuit Court of Appeals’ 2-1 majority decision to completely uphold the FCC Open Internet Order on every single one of the ~couple dozen argued points, after the court had twice before not granted the FCC complete deference in overturning the FCC on these matters, surprised most everyone given the number and seriousness of the legal challenges put forth, and the selective skepticism the judges signaled at oral arguments.
Given that this total support of the FCC was not anticipated, what does this potentially seminal court precedent mean practically?
For now, the FCC effectively enjoys complete deference from this Court on Open Internet issues.
The majority dismissed every single one of the petitioners’ best legal, process, and constitutional challenges and proactively cauterized them with court assertions that the FCC’s actions were reasonable, supported by the evidence, and compliant with the APA, or that the challenges were unpersuasive.
Submitted by Scott Cleland on Tue, 2016-06-14 14:47
June 14, 2016, Contact: Scott Cleland 703-217-2407
Judge Williams Dissent in USTelecom v. FCC Lays Bare the Competition Problems With Both the Appeals Court Decision and the FCC’s Open Internet Order
WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:
“There are big competition policy problems with the DC Court of Appeals 2-1 decision upholding the FCC’s 3-2 Open Internet Order that appear destined for the Supreme Court and Congress to ultimately resolve.”
“The court’s decision appears to effectively grant an FCC majority of three unelected commissioners with largely unfettered power to arbitrarily pick winners and losers in the competitive communications and Internet marketplaces without much administrative due process, explanation, justification, evidence or reasoned analysis.”
Submitted by Scott Cleland on Tue, 2016-06-14 11:03
The evidence increasingly proves that Google, Apple, Facebook, and Amazon, companies collectively known as “GAFA,” are the dominant consumer-technology, “edge” platforms/incumbents in their respective communication sector markets of: information, smartphones, social media, and ecommerce.
The evidence below shows Google, Apple, Facebook, and Amazon to clearly be the emerging dominant communications incumbents of the 21st century communications sector ecosystem and that an apparent FCC assumption that “edge” companies cannot be a competition problem is both naïve and erroneous.
Despite the FCC’s “competition, competition, competition” policy mantra, this GAFA dominance reality has not kept the FCC from slavishly favoring the dominant GAFA incumbents, as “insurgent” upstarts deserving of special FCC treatment and protection, in all of the FCC’s current major communications policy revamps it is making without Congress: i.e. its Title II Open Internet Order; its Title II ISP-only privacy rules; its AllVid set-top box rules; and its implicit wireless policy of favoring spectrum sharing and unlicensed spectrum over spectrum auctions and licensing.
Submitted by Scott Cleland on Fri, 2016-06-10 11:18
Given that Google bought Motorola for its patents to protect itself from patent litigation, many assume Alphabet-Google to be a likely bidder and buyer of Yahoo’s reported sale of its portfolio of ~3,000 1990s search, advertising and ecommerce patents.
Au contraire, big antitrust vulnerabilities and a decade of Googlian hostility to the intellectual property rights of competitors effectively rule them out of this Yahoo auction.
Google’s lawyers have to appreciate that Google bidding on Yahoo’s patents would self-shine antitrust spotlights exactly where Google does not want them shined, and would attract attention to Google’s ignominious pattern of disrespect for the property of competitors and the bloody trail of intellectual property infringement lawsuits Google has uniquely provoked over the last fourteen years.
Why Google can’t buy Yahoo’s search, advertising & ecommerce patents.