July 2012

Yesterday, FCC Commissioner Rosenworcel joined fellow Commissioner Pai in calling for a clear timeline for upcoming incentive auctions. Setting a timeline for critical decisions that will affect the future of the mobile Internet for the next decade is common sense. It would ensure sound management of the agency’s resources and set appropriate expectations for Congress and the communications industry. Now that the timeline has bipartisan support, the Chairman will likely be unable to continue avoiding accountability on this issue. Continue reading →

Last month, it was my great privilege to be invited to deliver some remarks at the University of Maine’s Center for Law and Innovation (CLI) as part of their annual “Privacy in Practice” conference. Rita Heimes and Andrew Clearwater of the CLI put together a terrific program that also featured privacy gurus Harriet Pearson, Chris Wolf, Omer Tene, Kris Klein and Trevor Hughes. [Click on their names to watch their presentations.] In my remarks, I presented a wide-ranging (sometimes rambling) overview of how privacy policy is unfolding here in the U.S. as compared to the European Union, and also offered a full-throated defense of America’s approach to privacy as compared to the model from the other side of the Atlantic that many now want us to adopt here in the U.S.  I also identified the many interesting parallels between online child safety policy and privacy policy here in the U.S. and discussed how we can apply a similar toolbox of solutions to problems that arise in both contexts. If you’re interested, I’ve embedded my entire 20-minute speech below, but I encourage you to also check out the other speakers videos that the folks at the CLI have posted on their site here. And keep an eye on the Maine Center for Law and Innovation; it is an up and coming powerhouse in the field of cyberlaw and Internet policy.

Christopher Sprigman, professor of law at the University of Virginia discusses his upcoming book the Knockoff Economy: How Imitation sparks Innovation co authored with Kal Raustiala. The book is an accessible look at how industries that do not have heavily enforced copyright law, such as the fashion and culinary industries, are still thriving and innovative. Sprigman explains how copyright was not able to be litigated heavily in these cases and what the results could teach us about what other industries that do have extensive copyright enforcement, such as the music and movie industries, could look like without it.


It is unlikely there has ever been a more important figure in the history of regulatory policy than Alfred Kahn. As I noted in this appreciation upon his passing in December 2010, his achievements as both an academic and a policymaker in this arena where monumental. His life was the very embodiment of the phrase “ideas have consequences.” His ideas changed the world profoundly and all consumers owe him a massive debt of gratitude for reversing the anti-consumer regulatory policies that stifled competition, choice, and innovation. It was also my profound pleasure to get to know Fred personally over the last two decades of his life and to enjoy his spectacular wit and unparalleled charm. He was the most gracious and entertaining intellectual I have ever interacted with and I miss him dearly.

As I noted in my earlier appreciation, Fred was a self-described “good liberal Democrat” who was appointed by President Jimmy Carter to serve as Chairman of the Civil Aeronautics Board in the mid-1970s and promptly set to work with other liberals, such as Sen. Ted Kennedy, Stephen Breyer, and Ralph Nader, to dismantle anti-consumer airline cartels that had been sustained by government regulation. These men achieved a veritable public policy revolution in just a few short years. Not only did they comprehensively deregulate airline markets but they also got rid of the entire regulatory agency in the process. Folks, that is how you end crony capitalism once and for all! Continue reading →

[Based on forthcoming article in the Minnesota Journal of Law, Science & Technology, Vol. 14 Issue 1, Winter 2013, http://mjlst.umn.edu]

I hope everyone caught these recent articles by two of my favorite journalists, Kashmir Hill (“Do We Overestimate The Internet’s Danger For Kids?”) and Larry Magid (“Putting Techno-Panics into Perspective.”) In these and other essays, Hill and Magid do a nice job discussing how society responds to new Internet risks while also explaining how those risks are often blown out of proportion to begin with.

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Is competition really a problem in the tech industry? That was the question the folks over at WebProNews asked me to come on their show and discuss this week. I offer my thoughts in the following 15-minute clip. Also, down below I have embedded a few of my recent relevant essays on this topic, a few of which I mentioned during the show.

It’s come to this. After more than a decade of policies aimed at reducing the telephone companies’ share of the landline broadband market, the feds now want to thwart a key wireless deal on the remote chance it might result in a major phone company exiting the wireline market completely.

The Department of Justice is holding up the $3.9 billion deal that would transfer a block of unused wireless spectrum from a consortium of four cable companies to Verizon Wireless, an arm of Verizon, the country’s largest phone company.

The rationale, reports The Washington Post’s Cecilia Kang, is that DoJ is concerned the deal, which also would involve a wireless co-marketing agreement with Comcast, Cox, Time Warner and Bright House Networks, the companies that jointly own the spectrum in question, would lead Verizon to neglect of its FiOS fiber-to-the-home service.

There’s no evidence that this might happen, but the fact that DoJ put it on the table demonstrates the problems inherent in government attempts to regulate competition.

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I suppose there’s something to be said for the fact that two days into DirecTV’s shutdown of 17 Viacom programming channels (26 if you count the HD feeds) no congressman, senator or FCC chairman has come forth demanding that DirecTV reinstate them to protect consumers’ “right” to watch SpongeBob SquarePants.

Yes, it’s another one of those dust-ups between studios and cable/satellite companies over the cost of carrying programming. Two weeks ago, DirecTV competitor Dish Network dropped AMC, IFC and WE TV. As with AMC and Dish, Viacom wants a bigger payment—in this case 30 percent more—from DirecTV to carry its channel line-up, which includes Comedy Central, MTV and Nickelodeon. DirecTV, balked, wanting to keep its own prices down. Hence, as of yesterday, those channels are not available pending a resolution.

As I have said in the past, Washington should let both these disputes play out. For starters, despite some consumer complaints, demographics might be in DirecTV’s favor. True, Viacom has some popular channels with popular shows. But they all skew to younger age groups that are turning to their tablets and smartphones for viewing entertainment. At the same time, satellite TV service likely skews toward homeowners, a slightly older demographic. It could be that DirecTV’s research and the math shows dropping Viacom will not cost them too many subscribers.

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Eli Dourado, a research fellow at the Mercatus Center at George Mason University, discusses malware and possible ways to deal with it. Dourado notes several shortcomings of a government response including the fact that the people who create malware come from many different countries some of which would not be compliant with the US or other countries seeking to punish a malware author. Introducing indirect liability for ISPs whose users spread malware, as some suggest, is not necessary, according to Dourado. Service providers have already developed informal institutions on the Internet to deal with the problem. These real informal systems are more efficient than a hypothetical liability regime, Dourado argues.


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One of the most egregious examples of special interest pleading before the Federal Communications Commission and now possibly before Congress involves the pricing of “special access,” a private line service that high-volume customers purchase from telecommunications providers such as AT&T and Verizon.  Sprint, for example, purchases these services to connect its cell towers.

Sprint has been seeking government-mandated discounts in the prices charged by AT&T, Verizon and other incumbent local exchange carriers for years.  Although Sprint has failed to
make a remotely plausible case for re-regulation, fuzzy-headed policymakers are considering using taxpayer’s money in an attempt to gather potentially useless data on Sprint’s behalf.

Sprint is trying to undo a regulatory policy adopted by the FCC during the Clinton era.  The commission ordered pricing flexibility for special access in 1999 as a result of massive investment in fiber optic networks.  Price caps, the commission explained, were designed to act as a “transitional regulatory scheme until actual competition makes price cap regulation
unnecessary.”  The commission rejected proposals to grant pricing flexibility in geographic areas smaller than Metropolitan Statistical Areas, noting that

because regulation is not an exact science, we cannot time the grant of regulatory relief to coincide precisely with the advent of competitive alternatives for access to each individual end  user. We conclude that the costs of delaying regulatory relief outweigh the potential costs of granting it before [interexchange carriers] have a competitive alternative for each and every  end user. The Commission has determined on several occasions that retaining regulations longer than necessary is contrary to the public interest. Almost 20 years ago, the Commission determined that regulation imposes costs on common carriers and the public, and that a regulation should be eliminated when its costs outweigh its benefits. (footnotes omitted.)

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