You are here
Submitted by Scott Cleland on Tue, 2016-10-25 22:59
This analysis of the competitive facts underlying AT&T’s acquisition of Time Warner is an outgrowth of my discussion of the acquisition on NPR’s Diane Rehm Show this morning with Cecilia Kang of the New York Times and John Bergmeyer of Public Knowledge. The show can be heard here.
My main point was that the competitive facts are the best friend of this transaction.
I elaborate on that conclusion below.
The key facts lead me to believe the transaction should and will be approved, most likely by the DOJ, because of: the antitrust-benign competitive share facts in all the relevant markets; the antitrust precedents that constrain the DOJ’s ability to successfully challenge in court a vertical merger with these benign shares; and the companies have signaled they understand that if any legitimate competitive concerns arise they can be mitigated successfully with conditions and DOJ oversight of the transaction.
If officials examine the competitive facts of this acquisition with an open mind and with due process, they’ll discover first impressions can be very misleading.
Submitted by Scott Cleland on Wed, 2016-08-31 10:13
FCC and FTC meet the law of unintended consequences.
A Ninth Circuit Court decision overturned an FTC enforcement action against AT&T for “throttling” broadband data speeds by definitively ruling that the FTC did not have any legal jurisdiction over AT&T (and other common carriers) because of the explicit common carrier exemption in the FTC’s core Section 5 legal authority.
Submitted by Scott Cleland on Wed, 2016-08-10 21:40
Why is the FCC protecting and facilitating online advertising monopolies?
How can the FCC square its “competition, competition, competition” PR mantra with its regulatory plans for applying new anticompetitive privacy rules only on ISPs and not the “edge” online advertising monopolies -- Google and Facebook?
Simply as it relates to online advertising, the FCC’s new proposed Title II privacy rules would require ISPs with existing advertising businesses, or those planning to enter, compete, and grow in the online advertising market, to be subject to a new and special, privacy opt-in, consumer-consent framework where they alone in the marketplace would have to secure users’ advanced permission to use a majority of their data for advertising purposes.
Submitted by Scott Cleland on Fri, 2016-07-29 11:34
Google: do as we say, not as we do.
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 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 Fri, 2016-05-27 10:03
Summary: It is rare for an FCC proceeding to be so wrong-headed and ill-conceived that it has seven huge flaws. Tellingly this one does.
Submitted by Scott Cleland on Fri, 2016-03-25 17:30
For the last several years that Netflix has relished the role of Grand Net Neutrality Inquisitor accusing ISPs of throttling Internet traffic in alleged violation of net neutrality, Netflix actually has been secretly throttling its Internet-leading traffic in ways that it never disclosed to either its users, the public, or to the FCC/FTC.
This incredible net neutrality revelation could have lots more repercussions than many appreciate at first glance.
We learned of this extraordinary duplicity from a WSJ story this week where Netflix was forced to fess up “that for more than five years it has limited its video speeds to most wireless carriers across the globe, including AT&T and Verizon… Netflix said it doesn’t limit its video quality at two carriers: T-Mobile and Sprint because “historically those two companies have had more consumer-friendly policies.”
Consider these under-appreciated repercussions.