Geoff Manne in Wired on FCC Title II

Friend of Knowledge Problem Geoff Manne had a thorough opinion piece in Wired yesterday on the FCC’s Title II Internet designation. Well worth reading. From the “be careful what you wish for” department:

Title II (which, recall, is the basis for the catch-all) applies to all “telecommunications services”—not just ISPs. Now, every time an internet service might be deemed to transmit a communication (think WhatsApp, Snapchat, Twitter…), it either has to take its chances or ask the FCC in advance to advise it on its likely regulatory treatment.

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.

And that’s even at the much-vaunted edge of the network that such regulation purports to protect.

Asking in advance. Nope, that’s not gonna slow innovation, not one bit …

FCC Title II and raising rivals’ costs

As the consequences of the FCC vote to classify the Internet as a Title II service start to sink in, here are a couple of good commentaries you may not have seen. Jeffrey Tucker’s political economy analysis of the Title II vote as a power grab is one of the best overall analyses of the situation that I’ve seen.

The incumbent rulers of the world’s most exciting technology have decided to lock down the prevailing market conditions to protect themselves against rising upstarts in a fast-changing market. To impose a new rule against throttling content or using the market price system to allocate bandwidth resources protects against innovations that would disrupt the status quo.

What’s being sold as economic fairness and a wonderful favor to consumers is actually a sop to industrial giants who are seeking untrammeled access to your wallet and an end to competitive threats to market power.

What’s being sold as keeping the Internet neutral for innovation at the edge of the network is substantively doing so by encasing the existing Internet structure and institutions in amber, which yields rents for its large incumbents. Some of those incumbents, like Comcast and Time-Warner, have achieved their current (and often resented by customers) market power not through rivalrous market competition, but through receiving municipal monopoly cable franchises. Yes, these restrictions raise their costs too, but as large incumbents they are better positioned to absorb those costs than smaller ISPs or other entrants would be. It’s naive to believe that regulations of this form will do much other than softening rivalry in the Internet itself.

But is there really that much scope for innovation and dynamism within the Internet? Yes. Not only with technologies, but also with institutions, such as interconnection agreements and peering agreements, which can affect packet delivery speeds. And, as Julian Sanchez noted, the Title II designation takes these kinds of innovations off the table.

But there’s another kind of permissionless innovation that the FCC’s decision is designed to preclude: innovation in business models and routing policies. As Neutralites love to point out, the neutral or “end-to-end” model has served the Internet pretty well over the past two decades. But is the model that worked for moving static, text-heavy webpages over phone lines also the optimal model for streaming video wirelessly to mobile devices? Are we sure it’s the best possible model, not just now but for all time? Are there different ways of routing traffic, or of dividing up the cost of moving packets from content providers, that might lower costs or improve quality of service? Again, I’m not certain—but I am certain we’re unlikely to find out if providers don’t get to run the experiment.

Adam Thierer on crony capitalism and technology policy

Lynne Kiesling

Adam Thierer of the Mercatus Center on corporate welfare, and why he doesn’t like the phrase “crony capitalism”:

Here’s Adam arguing against a proposal to nationalize Facebook “to protect user rights”.

Is the death of the TV business model upon us?

Lynne Kiesling

If you’re a Direct TV subscriber, you know that they are embroiled in a contract dispute with Viacom over subscriber fees, which means you haven’t been able to watch Jon Stewart or Stephen Colbert or SpongeBob SquarePants for the past week or so. But is cable/satellite TV becoming an “if it died would anyone notice?” industry?

Put another way, as Derek Thompson did in The Atlantic late last week, has the technology evolved sufficiently that the cable or satellite TV bundle model is obsolete?

First, Viacom yanked its 19 channels — including Nickelodeon, MTV and Comedy Central — from DirecTV after the two companies failed to agree on subscriber fees. Second a federal judge cleared the way for Aereo, an exciting new startup that could bring local TV (NBC, ABC, CBS, PBS) to any device you wish, from a smart phone to an actual TV.

Big deal, you might say, so DirecTV people can’t watch “South Park” and techies can get a crappy stream of “The View” on their iPad. That’s not a wrong interpretation of the news, but it’s too narrow. The bigger story here is the death of the bundle.

“The bundle” has been a matter of tech policy interest for some time, as some consumers argue that they shouldn’t have to pay to access 500 channels when they really only want 20 of them (disclosure: I, too, have ranted after a couple of glasses of wine about how dearly I wanted “a la carte” pricing). Given the prevailing broadcast, cable, and satellite technologies, the economics of content bundling is more nuanced than that, though — in some ways channel bundling is like risk pooling in insurance. By creating bundles that cross genres and interests, cable/satellite companies can offer a higher “potential eyeball rate” for their channels and charge content providers higher subscriber fees at a lower retail price to each subscriber than if the cable/satellite company offered each channel separately. In that model content providers get the revenue both to do Game of Thrones on HBO and to do deep cable shopping channels.

But Internet streaming technologies have been chipping away at the bundle business model for some time, at least the past year or so, and they are getting efficient enough in their use of bandwidth and are complemented by more efficient devices (from laptops to tablets to phones) that streaming is now a viable competitor to cable/satellite. Those who want a la carte can cancel their subscriptions and do so, for a lot of popular content.

Thus, as Steve Titch noted at Technology Liberation Front, there’s been little policy attention to this latest subscriber fee kerfuffle:

This is the new reality of TV viewing. If you are willing to wait a few days, you can download most of Comedy Central’s latest episodes for free (although John Bergmayer at Public Knowledge reports that, in a move related to the DirecTV dispute, Comedy Central has pulled The Daily Show episodes from its site, although they are still available at Hulu).

What’s more, in a decision that should raise eyebrows all around, AMC said it will allow Dish subscribers to watch the season premiere of its hit series Breaking Bad online this Sunday, simultaneous with the broadcast/cablecast. This decision should be the final coffin nail for the regulatory claim of “cable programming bottleneck.” Obviously, studios have other means of reaching their audience, and are willing to use them when they have to. …

While disputes like this are messy for consumers in the short term, the resolution will be a consumer win because it will force multichannel operators and the studios to adapt to actual changes in consumer behavior, not a policymaker’s construct of competitive supply chain. Washington would be wise to stay out.

It’ll be interesting to see how messy that process is for video content, whether incumbents fight it to their detriment as in music or adapt to it thoughtfully as in book publishing. Personally speaking, we’re just waiting for Fox Soccer to become less technologically incompetent, and then we’re off. I can watch cycling and hockey by subscription and most other stuff by direct purchase. I suspect we’ll end up spending almost as much as we do now for Dish, but with more flexibility and less junk to annoy and distract us.

AT&T/T-Mobile merger is about spectrum, redux

Lynne Kiesling

In case you were in doubt concerning my argument of a couple of weeks ago and back in March that the AT&T/T-Mobile merger is largely driven by our flawed spectrum policy, Gordon Crovitz weighed in with his version of the same argument in the Wall Street Journal earlier this week:

The great threat to competition for wireless data and mobile phones is not mergers—it’s government failure to free enough spectrum to meet demand. Deutsche Telekom agreed to sell T-Mobile, the fourth-largest wireless provider in the U.S., because it couldn’t get enough spectrum to compete and wanted out of the U.S. market. For AT&T, the $39 billion purchase price was the best way to get the spectrum and local cell towers it needs to serve 97% of U.S. consumers with a new 4G LTE network—a technology currently provided only by Verizon. In other words, this merger would mean more competition, not less.

However, as part of the political bargain to take some steam out of the DOJ’s challenge of the merger, AT&T is apparently offering to sell some of its spectrum to smaller wireless companies, according to Ars Technica. Presumably they would do so in markets in which they have substantial network overlap with T-Mobile (such as Chicago), which may reduce the DOJ’s estimate of the potential anti-competitive price effects of the merger.

AT&T’s history in a nutshell

Lynne Kiesling

The DOJ challenge to the AT&T/T-Mobile merger is bringing AT&T to our attention in ways that it hasn’t been in a while, including this great Ars Technica blog post providing a concise guide to the history of AT&T. Matthew Lasar argues that AT&T conquered the 20th century through patents, strategic acquisition, and embracing regulation and using it to its advantage. By so doing it did provide universal telephone access as it consolidated and cemented its monopoly, although some of its ways of using regulation to its advantage proved to be its undoing in the 1982 divestiture.

A highly recommended read, especially if you are not particularly familiar with the history of the telephone industry. That history provides important context for understanding current competition policy issues and events.

Another good response to the Obama administration’s mistaken antitrust policy

Michael Giberson

George Priest, professor of economics and law at Yale, clearly outlines the main errors of the Obama administration’s decision to oppose the AT&T/T-Mobile merger and cites relevant evidence backing the view:

It is very difficult at an abstract level to know what the effects of a merger or acquisition will be on competition within an industry. Firms may merge to create market power and increase prices, though they may also merge to create efficiencies that lower prices.

The Justice Department presumes that the acquisition of T-Mobile (the fourth largest wireless provider) by AT&T (the second largest) will lead to “higher prices . . . and lower quality products” based on the high market share that would result. But market share is a very rough proxy for market power and essentially meaningless in a network industry.

There are strong reasons to predict that AT&T’s acquisition will lower prices and improve product quality. First, there’s lots of competition in the wireless market. Prices have been declining progressively over time. There are many local market competitors with discount and pre-paid plans….

Second, the best evidence of the prospective effect of a proposed acquisition is the response of competitors that will face the combined firms. The chief competitor, Sprint, the third largest wireless company, has been lobbying to stop the merger from its first announcement.

If the acquisition would lead to increased prices and lower quality products as the Justice Department has claimed, Sprint would be better off after the acquisition… Sprint would oppose the acquisition—as it has—only if it thought that the merger would put it in a worse position by increasing the competitive pressures that it already faces.

The market—though not the Obama administration—understands this point. On the day that the Justice Department announced its opposition to the acquisition, Sprint’s share price rose 5.9%, reflecting investors’ belief that Sprint will be in a better competitive position without the acquisition.

The Obama administration also claimed blocking the merger would protect jobs; Priest nails the response:

The Obama administration’s emphasis on job maintenance is even more confused. The administration has argued that the acquisition should be opposed because mergers reduce employment by eliminating redundant jobs. But a sound economy is not built on redundant jobs. An economy becomes stronger as redundant jobs are eliminated, costs and prices reduced, and the effective wealth of the nation enhanced. A major reason that the Obama administration’s efforts to stimulate the economy have failed is that it has consistently poured money into negative-value investments.

[See also the Streetwise Professor on Priest’s article.]