May 2006

Earlier today the Senate Commerce Committee released its eagerly awaited “staff working draft” aimed at reforming the Communications Act of 1934 and the Telecommunications Act of 1996. It’s tough to know where to begin evaluating this new 135-page monster, which is entitled the “Communications, Consumer’s Choice, and Broadband Deployment Act of 2006.” In true “everything-and-the-kitchen-sink” fashion, the measure tries to say a little bit about just about every aspect of modern communications and media law, and a whole heck of lot more about other issues not even found in the ’34 and ’96 Acts.

For example, you’ll experience your first “this-is-not-your-father’s-telecom-bill” moment when you open to page 4 and find that Title I is labeled “War on Terrorism.” There’s also a big subtitle dealing with copyright controversies and the so-called “video and audio flags.” There’s also a beefy section on “Sports Freedom” pertaining to local TV sports agreements. (Thank God our leaders are doing something to guarantee us our inalienable right to sports on TV!)

Again, that’s just SOME of the new stuff the bill takes on. There’s plenty more new rule-making authority found in the measure that would empower the Federal Communications Commission to deal with both new and old policy issues alike.

But instead of nitpicking about the trees here–I’m sure we’ll be doing plenty of that at PFF over the next few weeks–I want to instead step back and look at the forest for a moment. It seems to me that the fundamental problem with efforts like this Senate draft is that our lawmakers often get obsessed with working out the smallest details of complicated communications / broadband / media marketplace developments. When pondering reform, a lot of very smart lawmakers and their staffers get together and wring their hands agonizing over hundreds of “What If?” scenarios about future market developments and then concoct a legislative response to each of them. This is how we end up dozens of pages of new rules on universal service policy (Title II of the bill), video service regulation (Titles III and IV) and digital television transition rules (Title VII) in addition to the new things mentioned above.

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I’ve got a new op-ed in the Springfrield News-Leader on cable franchise reform. It’s mostly Missouri specific, but I do survey a couple of important recent studies on the issue:

Several new studies find that reform would bring substantial benefits for consumers. Jerry Brito and Jerry Ellig of the Mercatus Center at George Mason University calculate that cable franchise reform could increase competition and save consumers nationwide $5.5 billion per year. Kent Lassman of the Progress and Freedom Foundation published a study last month that focused specifically on the Missouri cable market. He estimated that franchise reform could save Missouri consumers more than $100 million per year.

These predictions are borne out by experience. A survey released last month by the American Consumer Institute shows the dramatic results of the Texas franchise reform: in three of the first communities where Verizon Communications began offering video service in competition with the incumbent cable companies, more than 20 percent of consumers switched to the new service. Customers who switched since Verizon entered the markets have saved an average of $20 per month on their cable bills.

But the benefits of competition go beyond saving money. Many of the “switchers” indicated they did so because they preferred the package of channels offered by the new company. Others cited dissatisfaction with the quality or customer service of their previous company. Competition drives down prices, but it also spurs companies to offer higher-quality, more responsive service. Consumers in Texas are reaping those benefits.

For those of you in the DC area TOMORROW at 4:00, The George Mason University School of Law’s Information Economy Project is launching its “Big Ideas about Information” series with a discussion on “FCC License Auctions: Lessons from a Tumultuous Twelve Years.” The event will feature a conversation with Vernon Smith, Professor of Economics & Law at George Mason University and 2002 Nobel Laureate in Economics, and David Porter, Professor, Interdisciplinary Center for Economic Science at George Mason University. Both men are internationally renowned experts on the structure of auctions.

The event will be held at the George Mason University School of Law (Room 120). The GMU law school is located on 3301 Fairfax Drive in Arlington, Virginia and is right next to the Virginia Square-GMU Metro (Orange Line).

You can find more info and register at: http://www.law.gmu.edu/events/upcoming.php?ID=420

For those of you who will be in the DC area on Wed., May 10, Progress & Freedom Foundation is hosting a big “Internet Security Summit” at the Hyatt Regency Washington on Capitol Hill from 9:00 – 5:00. The event includes an impressive array of policy experts, corporate representatives and public officials, including keynoter Deborah Majoras, Chairman, Federal Trade Commission.

You can find the complete agenda and register online at: http://www.pff.org/events/upcomingevents/051006internetsecurity.asp

Ryan Singel at Wired blogs/reports that the U.S. federal government plans to intervene in the Electronic Frontier Foundation’s case against AT&T for allegedly facilitating the NSA’s warantless domestic surveillance of communications. The government plans to assert the military and state secrets privilege and to seek dismissal of this case.

If it succeeds, the corporate surveillance state will be that much closer to completion. The federal government will be able to secretly collect data from the private sector and prevent information about this surveillance from being debated and litigated. Even more than it already does.

My friend Alex Singleton points me to this essay on the “free lunch economy.” Madsen Pirie uses the clever example of matches to illustrate the trend of more and more things being made available to consumers at zero cost:

When George Orwell was Down and Out in Paris and London, he observed that homeless people, then called “tramps,” would pick cigarettes from the gutter and sometimes roll their own from the residual tobacco (there were few filter tips in his day). The problem was matches; these were a valuable commodity among the destitute community, for few would spend the few coppers a box cost, even if they had the money. Now, of course, free matches are widely available, and not as many people buy them. They use free boxes which carry advertising, or they use cheap disposable lighters at a tiny fraction of what a lighter used to cost.

This is obviously a genuine trend, especially online. We’ve come to expect search engines, web browsers, blogs, phone calls, and many other digital products to be available to us for free. The marginal cost of such products has become so low that many firms have found that they can sustain their business models with just a trickle of advertising.

Some people have also come to expect music and movies for free:

Record companies made money by selling at several pounds each pieces of plastic which cost pennies to produce. The value lay in the intellectual property. The physical object that changed hands in the form of a vinyl disc, a tape, or a CD, was the way value was exchanged. The rise of the personal tape recorder caused some concern, because teenagers didn’t regard it as stealing to copy a friend’s music. Record companies began insisting that DJs talk over the opening of the records they played so that listeners could not record a “clean” copy.

The rise of the internet and of file sharing caused a major change in the dynamics of that market. Purchasers, many of them young people anxious to stretch their pounds, found they could share files with each other, and that advancing technology gave them top-quality copies. Music sales went into decline, and there were fears for the industry itself. The solution has been paid-for downloads such as those bought through Apple’s iTunes. Purchasers have been found to be ready to pay a small sum to download legally, with increased numbers of them making up the lower price they pay. The music industry is breathing more easily, but no one doubts that it was the free product which forced the change.

Unfortunately, the author doesn’t seem to notice that this is a fundamentally different phenomenon. Google gives its search engine for free on purpose, and they have a business model that allows them to profit from doing so. One reason they do so is because other search engines are also offering their own product for free. Market competition keeps the price at zero.

The music example is quite different. In that case, what’s driving the price down isn’t competitors offering their products at a lower price, but consumers simply taking the products without paying. Whatever the ethics of the situation (I tend to think taking music you haven’t paid for is wrong) what’s clear is that the economic dynamics of this situation are rather different. The reduced price doesn’t necessarily reflect reduced costs on the part of the music industry, and so there’s no reason to think that the resulting revenues will be sufficient to support continued music creation. We might end up in a situation where there are so many free-riders that the music industry is forced to dramatically cut back its activities.

I happen to think that in the long run, the market price for most music will be zero. That’s because music is rapidly getting less expensive to produce, and there are probably thousands of people who would gladly produce music gratis if only they could get a substantial audience, just as there are millions of bloggers who give away their blog posts for free. But that doesn’t mean that musicians shouldn’t be free to charge for their music if they want to. And I don’t think the increasing tendency of people to take music without paying for it is anything to celebrate. It’s certainly not “market competition” as we ordinarily understand the term.

Google grows up

by on May 1, 2006

Google, who less than a year a go didn’t have an office in D.C., seems to have picked up the ways of Washington pretty quickly. The New York Times reports today that Google has gone to Justice Department and EU antitrust authorities to complain that the search box in Microsoft’s new Internet Explorer 7 browser uses MSN as the default search engine.

Google has informed the European antitrust authorities of its worry that “Microsoft’s approach to setting search defaults in Internet Explorer 7 benefits Microsoft while taking away choice from users,” said Steve Langdon, a spokesman for Google. … “We have spoken to the Justice Department generally about our business and the importance of preserving competition in the search market,” Mr. Langdon said.

Wow. This is deja vu all over again. According to Microsoft, it is simple to change the default search engine if you want to. Also, last time I checked, Firefox, Safari, Opera, and the AOL browser all have Google as the default–and Google paid cash to the latter two for the privilege.

Mike from TechDirt has done a thorough write-up of last week’s copyright conference at the Cato Institute. It’s a fair assessment of things, but naturally skewing toward his perspective, which was a welcome contribution to the event. One can’t help but suspect that the length of his assessment is due to the fact that he had a whole bunch of time on a plane returning to California, when he could have been networking.