The Ticketmaster-Live Nation antitrust saga has come to a bittersweet end. Earlier this week the Justice Department finally approved the merger between the two firms, just shy of one year after it was announced.

While a number antitrust experts had speculated that the Justice Department might seek an injunction to block the deal outright, the DoJ ultimately opted to approve the deal while subjecting Ticketmaster-Live Nation to several conditions that are supposed to promote competition in the events marketplace. Under the terms of the consent decree, the combined firm will be required to license its ticketing software to competitor Anschutz Entertainment Group and divest Paciolan, a ticketing subsidiary of Ticketmaster. Ticketmaster-Live Nation also faces ten years of monitoring by antitrust officials to “prevent anticompetitive bundling of services.”

Ticketmaster has long been a controversial firm among concertgoers, frequently drawing consumers’ ire for charging hefty “convenience” fees and offering customer service that’s not exactly stellar. But it’s important to remember that today’s entertainment market is more fragmented than ever, and consumers have a huge array of choices for listening to music and viewing live events. Even YouTube is getting into the business of airing live events. The video site has broadcast several live events already, including U2’s Rose Bowl performance in October 2009, and is eyeing the pay-per-view live streaming market as well.

So it’s not hard to see why consolidation is taking place in the event ticketing and promotion markets. Economists have demonstrated that vertical integration, done properly, often results in sizable efficiencies, translating into overall welfare gains for consumers. Together, Ticketmaster and Live Nation are in a stronger position than before to offer value to event venues and promote concerts and shows. And as much we all hate service fees, in industries characterized by high fixed costs and declining marginal unit costs – like ticketing – big per-unit “markups” are often necessary to induce businesses to compete and innovate. While Ticketmaster may not be the most innovative company in the world, the firm faces an uncertain future as its contracts with venues come up for renewal. If Ticketmaster really is harming concertgoers – and by the way, there’s no clear evidence that it is – it will be disciplined not only by concert lovers, but by venues and artists as well. Derailing a potentially efficient business arrangement simply because it might not work out, whether in the event ticketing market or the cable television market, results in harm to consumers.

Interestingly, Susan Crawford, a law professor and former White House Special Assistant for Science, Technology, and Innovation Policy, tweeted yesterday, “Notice [the] unbundling conditions on [the] Ticketmaster merger.” It’s curious that Crawford chose the term ‘unbundling,’ which typically refers to essential facilities regulation whereby government forces utilities to share their last-mile facilities with competitors. Crawford happens to be a staunch advocate of local loop unbundling, which requires incumbent telecom providers to share their local facilities with competitive carriers at “just and reasonable” prices – as determined by regulators, of course. (The 1996 Telecom Act imposed local loop unbundling rules in the U.S., although subsequent FCC rulings relaxed unbundling requirements to a significant extent.)

Despite the seeming similarities between the Ticketmaster conditions and unbundling regulations, the two rules are rooted in distinct regulatory frameworks. Ticketmaster is only required to share a peripheral element of its business, ticketing software, with a single rival for ten years. But U.S. telecom firms governed by local loop unbundling rules must sell a core element of their business, last-mile access, to all comers, at rates that regulators deem reasonable. Ticketmaster acquired its market share by competing in the free market and, to a lesser extent, by acquiring smaller firms. Telecom incumbents have significant market share in no small part thanks to nationwide infrastructure established long ago by the long-dissolved Ma Bell monopoly. Moreover, forced unbundling of essential facilities is a network regulation, rather an antitrust regulation. U.S. antitrust laws are deeply flawed, but thanks in large part to the courts, at least antitrust regulation is fundamentally rooted in actual economics and aims to maximize consumer welfare. The FCC, on the other hand, assesses policies using the “public interest” standard, an ambiguous, arbitrary framework that incorporates economics only when convenient.

The legitimacy of merger licensing conditions is independent from the legitimacy of local loop unbundling. More to the point, bad antitrust laws are no justification for bad communications laws.

The Wall Street Journal reports today that student loan borrowing for college “in the 2008-09 academic year grew about 25% over the previous year, to $75.1 billion,” with the average student borrowing $13,172 to pay for college. So it should come as an enormous relief that one Internet start-up, StraighterLine, has essentially made the university fully virtual, offering classes for just $99/month.  While this may seem like a boon for students, especially the millions of Americans for whom even community college tuition seems an insurmountable obstacle to climbing up the economic ladder, such “e-Learning” offerings are already, predictably, coming under attack by entrenched interests in “Big Ed” (the professoriat!) as the “media-software–publishing–E-learning-complex.”

In Washington Monthly, Kevin Carey explains why “The next generation of online education could be great for students—and catastrophic for universities.” In a nutshell, the story is the same basic theme of Chris Anderson’s book Free!: digital distribution of information will ultimately drive costs down to zero. Carey shows how universities are essentially facing the same sorts of pressure from disruptive innovation as newspapers—except with more capital costs:

Colleges are caught in the same kind of debt-fueled price spiral that just blew up the real estate market. They’re also in the information business in a time when technology is driving down the cost of selling information to record, destabilizing lows. In combination, these two trends threaten to shake the foundation of the modern university, in much the same way that other seemingly impregnable institutions have been torn apart. In some ways, the upheaval will be a welcome one. Students will benefit enormously from radically lower prices—particularly people like Solvig who lack disposable income and need higher learning to compete in an ever-more treacherous economy. But these huge changes will also seriously threaten the ability of universities to provide all the things beyond teaching on which society depends: science, culture, the transmission of our civilization from one generation to the next. Whether this transformation is a good or a bad thing is something of a moot point—it’s coming, and sooner than you think.

Carey tells the the fascinating tale of StraighterLine, whose founder, Burck Smith, predicted the rise of digital higher education in his graduate thesis at Harvard’s Kennedy School of government in 1999. He predicted that we would look back from 2015 and see that:

Technological change was the spark that ignited the wildfire of change. Like a hole in a dike, cheap and instantaneous Internet-based content delivery and communication nibbled away at barriers to institutional competition… . Suddenly, a student seeking an introductory statistics course could choose from hundreds of online courses from anywhere in the world… . Feeling the effects of low-cost competition, site-based education providers started cutting course costs and prices to attract students.

Carey’s tell would resonate well with anyone who’s read George Gilder’s brilliant works Microcosm and Telecosm, about how innovation in general and digital economics radically drive down costs.

Even as the cost of educating students fell, tuition rose at nearly three times the rate of inflation. Web-based courses weren’t providing the promised price competition—in fact, many traditional universities were charging extra for online classes, tacking a “technology fee” onto their standard (and rising) rates. Rather than trying to overturn the status quo, big, publicly traded companies like Phoenix were profiting from it by cutting costs, charging rates similar to those at traditional universities, and pocketing the difference. This, Smith explained, was where StraighterLine came in. The cost of storing and communicating information over the Internet had fallen to almost nothing. Electronic course content in standard introductory classes had become a low-cost commodity. The only expensive thing left in higher education was the labor, the price of hiring a smart, knowledgeable person to help students when only a person would do. And the unique Smarthinking call- center model made that much cheaper, too. By putting these things together, Smith could offer introductory college courses à la carte, at a price that seemed to be missing a digit or two, or three: $99 per month, by subscription. Economics tells us that prices fall to marginal cost in the long run. Burck Smith simply decided to get there first.

Essentially what Smith did was to unbundle content:

To anyone who has watched the recent transformation of other information-based industries, the implications of all this are glaringly clear. Colleges charge students exorbitant sums partly because they can, but partly because they have to. Traditional universities are complex and expensive, providing a range of services from scientific research and graduate training to mass entertainment via loosely affiliated professional sports franchises. To fund these things, universities tap numerous streams of revenue: tuition, government funding, research grants, alumni and charitable donations. But the biggest cash cow is lower-division undergraduate education. Because introductory courses are cheap to offer, they’re enormously profitable. The math is simple: Add standard tuition rates and any government subsidies, and multiply that by several hundred freshmen in a big lecture hall. Subtract the cost of paying a beleaguered adjunct lecturer or graduate student to teach the course. There’s a lot left over. That money is used to subsidize everything else. But this arrangement, however beneficial to society as a whole, is not a particularly good deal for the freshman gutting through an excruciating fifty minutes in the back of a lecture hall.

The analogy to newspapers is clear:

What happens when the number of students making that choice reaches a critical mass? Consider the fate of the newspaper industry over the last five years. Like universities, newspapers relied on financial cross-subsidization to stay afloat, using fat profits from local advertising and classifieds to prop up money-losing news bureaus. This worked perfectly well until two things happened: the Internet made opinion and news content from around the world available for nothing, and the free online classified clearinghouse Craigslist obliterated newspapers’ bedrock revenue source, the want ads. Suddenly, people didn’t need to buy a newspaper to read news, and the papers’ ability to subsidize expensive reporting with ad revenue was crippled. The result: plummeting newspaper profits leading to a tidal wave of layoffs and bankruptcies, and the shuttering of bureaus in Washington and abroad. Like Craigslist, StraighterLine threatens the most profitable piece of a conglomerate business: freshman lectures, higher education’s equivalent of the classified section. If enough students defect to companies like StraighterLine, the higher education industry faces the unbundling of the business model on which the current system is built. The consequences will be profound. Ivy League and other elite institutions will be relatively unaffected, because they’re selling a product that’s always scarce and never cheap: prestige. Small liberal arts colleges will also endure, because the traditional model—teachers and students learning together in a four-year idyll—is still the best, and some people will always be willing and able to pay for it….. Regional public universities and nonelite private colleges are most at risk from the likes of StraighterLine. They could go the way of the local newspaper, fatally shackled to geography, conglomeration, and an expensive labor structure, too dependent on revenues that vanish and never return.

The difference between newspapers and higher education is that, in education, the government ultimately holds all the cards through the power of accreditation:

Credits and degrees can only be granted by—and students paying for college with federal grants and loans can only attend—institutions that are officially recognized by federally approved accreditors. And the most prestigious accreditors will only recognize institutions: organizations with academic departments, highly credentialed faculty, bureaucrats, libraries, and all the other pricey accoutrements of the modern university.

Carey concludes by noting that government regulation ultimately threatens innovation and will likely protect “Big Ed” from competition, just as it has protected the Big Three auto manufacturers:

Smith’s struggle to establish StraighterLine suggests that higher education still has some time before the Internet bomb explodes in its basement. The fuse was only a couple of years long for the music and travel industries; for newspapers it was ten. Colleges may have another decade or two, particularly given their regulatory protections. Imagine if Honda, in order to compete in the American market, had been required by federal law to adopt the preestablished labor practices, management structure, dealer network, and vehicle portfolio of General Motors. Imagine further that Honda could only sell cars through GM dealers. Those are essentially the terms that accreditation forces on potential disruptive innovators in higher education today.

Carey’s story highlights not only what the future of universities might look like, but the dangers of subsidizing newspapers as well. Many who have bemoaned the demise of newspapers have called for indirect government support in the form of preferential tax treatment by relaxing non-profit rules to accommodate newspapers, letting newspaper subscribers deduct their annual newspaper spending or perhaps even borrowing from the French and giving income tax breaks to newspaper journalists—or direct subsidies like bailouts for newspapers or expanded public funding the model of NPR. The obvious problem raised by such proposals is the old Golden Rule: “He who has the gold, makes the rules.” Control necessarily follows funding.

The more subtle, long-term problem with such subsidies is that they require some form of accreditation to determine who or what is eligible for government largess or tax breaks.  This creates essentially the same problem Carey predicts with universities: Established interests will lobby government to protect them from competition by radically cheaper, innovative business models based on new digital technologies. This, in turn, will both retard the development of education, and therefore the advancement of knowledge, and increase the problem of government control: The lower down what George Gilder called the “Learning Curve” we go in terms of figuring out how to make e-Learning inexpensive, the greater Big Ed will depend on government for protection. If that happens, academic freedom will become as meaningless as freedom of a press dependent on government funding.

As a practical matter, I wonder:

1. How services like StraighterLine will compete with free offerings of course materials through services like iTunes University, which offers a growing compendium of free college lectures (but not course materials, tests or tutoring)
2. When we’ll finally see e-Learning costs drop enough that an ad-supported model might become feasible. You may laugh now, but today’s $99/month could well be tomorrow’s $9.99/month—at which point advertising models might prove competitive, especially if advertisers can get the revenue boost of delivering personalized marketing to users.