Antitrust & Competition Policy

As always, this year’s “State of the Net” conference features a variety of breakout sessions from which to choose and, sadly, until I figure out a way to clone myself, I can’t cover them all. So, I decided to sit in on the panel about “Antitrust in the Internet Era,” since it’s a subject I find of great interest. It featured the following lineup:

  • David Balto, Center for American Progress (moderator)
  • Brian Bieron, Senior Director of Federal Affairs, eBay
  • Joseph Farrell, Director of the Bureau of Economics, Federal Trade Commission
  • Roberta Katz, U.S. Department of Justice
  • Catherine Sandoval, Santa Clara University School of Law

Here’s a summary of some of the highlights:

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At the “State of the Net” conference this morning, Alan Murray of The Wall Street Journal interviewed Brian Roberts, Chairman & CEO of Comcast. Here are some highlights. [You can follow all of my live Tweeting at: @AdamThierer]

  • Stresses synergies from combination of Comcast cable channels & NBC broadcast properties (ex: Golf Channel & NBC Sports)
  • Program access rules “should give fair amount of comfort” to critics who fear that content will be withheld
  • “Businesses have to transform & reinvent themselves all the time” NBC part of that transformation for Comcast
  • Internet is more friend than foe; broadband has transformed the business for the better
  • Businesses grappling w/ ways to extend traditional services to consumers in new ways & still make $$$ (ex: TV Everywhere)

In my researching the wireless competitive picture for my comments on the FCC Network Neutrality NPRM, one of my contacts was kind enough to point me to a Bank of America/Merrill Lynch paper that used the Herfindahl-Hirschman Index (HHI) to compare the market concentration of wireless service providers in the 26 Organization for Economic Co-Operation and Development (OECD) countries.  HHI is one of the metrics used by the Department of Justice to determine market concentration. It is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, 20 percent, the HHI is 2600 (302 + 302 + 202 + 202 = 2600). The higher the number, the greater the market concentration. When the formula is applied to the U.S. wireless market share percentages determined by Bank of America/Merrill Lynch (28.5, 26.7, 18.2. 12.1 and 14.5), the U.S. HHI is the smallest at 2213. This number is substantially less than the HHIs for all the other OECD companies with the exception of the U.K.  Otherwise, no other HHI is under 2900.

Here’s the OECD market share data for Q4 2007 as it appears in the Bank of America/Merrill Lynch’s Global Wireless Matrix.

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As the annual Winter Consumer Electronics Show (CES) is set to convene in Las Vegas tomorrow, it will be interesting to see the temper of the policy climate. On the federal and state policy level, the hostility towards every facet of the high-tech sector has done nothing but grow. Not too long ago, politicians were extolling America’s high-tech leadership as the its primary vehicle for continued global economic leadership. Now it seems the entire tech sector, from semiconductors to wireless phones to TV is under attack from the White House, to Congress to state-level bureaucrats.

Just this week, as Adam reported, the left-leaning Free Press has inexplicably gone on the offensive against the idea of pushing TV to wireless devices. Such activists are no doubt emboldened by the example of the current administration, which has launched an antitrust campaign against Intel (just as the European Union was all but surrendering its own),  and continues to press for antitrust action against Google before, as antitrust chief Christine Varney has freely admitted, it is “too late”— that is, the speed of technology change undermines the government’s case, as it did in in the Clinton era Microsoft suit over browser bundling.

Add to this the California Energy Commission’s ban on big screen TVs, the FCC’s push for sweeping new Internet  regulations under the guise of “network neutrality,”and the Internet, in general, being blamed for everything from the decline of newspapers to postal rate increases to weight gain in teenage girls (for more, type “Internet blamed for” into the search engine of your choice), and one might expect the mood at the show, at least in the policy sessions to be dour. Even if I am watching from afar (Adam will descend into the CES maelstrom on our behalf), I await to see if this will be the case.

The Left has been drumbeating about high-tech market failure for more than 10 years (plus ça change: see this rebuttal paper from 2001). The big difference is that today’s Washington technocrats have bought in, despite all the evidence to the contrary.  Berin provided some solid data on mobile OS competition earlier today. Here’s some more data courtesy of Digital Society as to the growth of applications and revenues in this alleged stagnant, failing sector:

– Number of e-mails sent per day in 2000: 12 billion
– Number of e-mails sent per day in 2009: 247 billion
– Revenues from mobile data services in the first half of 2000: $105 million
– Revenues from mobile data services in the first half of 2009: $19.5 billion
– Number of text messages sent in the U.S. per day in June 2000: 400,000
– Number of text messages sent in the U.S. per day in June 2009: 4.5 billion
– Number of pages indexed by Google in 2000: 1 billion
– Number of pages indexed by Google in 2008: 1 trillion
– Amount of hard-disk space $300 could buy in 2000: 20 to 30 gigabytes
– Amount of hard-disk space $300 could buy in 2009: 2,000 gigabytes (2 terabytes)

Metrics such as these are the best weapon against attempts at regulation, especially from an administration keen to find a “market failure” rationale wherever it looks. High-tech consumer electronics remains a bright spot in what has been a down economy. It is best left on its own to thrive.

This ChangeWave consumer survey doesn’t include market share numbers, but does convey just how fierce competition has become between the five leading mobile operating systems and among top device manufacturers. The best chart is this one, which shows just how rapidly Google’s android operating system is “disrupting” the market:

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Thanks to Jim for providing a great analysis of Jonathan Rosenberg’s “The Meaning of Open” from Google’s Policy Blog.  I wanted to throw in my two cents without derailing the comments on Jim’s post.  I hope you’ll this new thread of discussion interesting.

While I enjoyed reading Rosenberg’s post and found myself nodding in agreement with many if not most of his points, it would have been nice if Rosenberg were a little less cheeky about this close/open symbiosis that is the real defining quality of Google.  Rather than dismissing the closed nature of Google’s search/ad business with these lines:

The search and advertising markets are already highly competitive with very low switching costs, so users and advertisers already have plenty of choice and are not locked in. Not to mention the fact that opening up these systems would allow people to “game” our algorithms to manipulate search and ads quality rankings, reducing our quality for everyone.

Both of these arguments have some merit as explanations for why Google’s search/ad business isn’t open-source or an “open system,” but neither serve as a reason to grant Google an exemption from Rosenberg’s “open systems win” credo.

Instead of prescribing that the rest of the world adopt total openness, Rosenberg could have taken a more nuanced position, leaving room for the kind of proprietary money-makers Google relies on and that we’re not likely to see disappear from the software world anytime soon, if ever.  This sort of model, one which harnesses the profit-making potential of closed systems while funding satellite projects that take advantage of the iterative, peer-reviewed process of  open-source development is fascinating and makes for a much more interesting conversation than Rosenberg’s simplistic open-only philosophy.

Still, I think Google needs some defending and their business model/philosophy deserves to be looked at for what it really is, not what it is presented it to be.

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It may be possible to wring consistency from the “open” manifesto Google SVP of Product Management Jonathan Rosenberg published earlier this week, but I can’t.

He correctly extols the virtues of openness in technology and data for its pro-competitive effects. Closed systems may be profitable in the short run, but they are weak innovation engines:

[A] well-managed closed system can deliver plenty of profits. They can also deliver well-designed products in the short run — the iPod and iPhone being the obvious examples — but eventually innovation in a closed system tends towards being incremental at best (is a four blade razor really that much better than a three blade one?) because the whole point is to preserve the status quo. Complacency is the hallmark of any closed system. If you don’t have to work that hard to keep your customers, you won’t.

But his paean to openness draws a tight line around Google’s profitable products: Continue reading →

Gee, if only the technology sector weren’t so gosh-darn static and slow-to-change, maybe we wouldn’t need government to keep tinkering with the market to make sure big, bad incumbents didn’t reign on high, oppressing us with their monopolistic control of our cyber-lives. But since the Big just keep getting bigger and “network effects” make it impossible for new competitors to get in the game, it’s a good thing we have so many Federal agencies looking out for us poor consumers (FCC, FTC, DOJ, NTIA, etc.) with antitrust interventions, common carriage mandates and 1000 other regulatory “tweaks”—not to mention all those oh-so-tech-savvy state legislators and attorneys general, always eager to leap into action!  “Fire, ready, aim, boys!

I mean after all, it’s only a matter of time before Time Warner/AOL uses their combined $100 billion might as “gatekeepers” to digitally enslave us all, right?  Oh, wait…

Uh, yeah, well never mind… As Adam and I have noted: Continue reading →

Business Insider reports that, sometime next year, Scribd will launch a “seamless” interface that allows users to access Scribd docs on their Kindles.  That’s a major step forward for the startup, which aims to be the “YouTube for print”—and which Adam and I use to make all our PFF papers available online in an embeddable Flash viewer that’s much quicker to load than the full PDFs.  But it also represents a serious potential long-term challenge to Amazon, since Scribd is “quietly developing a strong e-book storefront to match its hoard of user generated content,” as Business Insider notes, and because:

If Scribd can put its books on the Kindle, this number should only grow, especially since it offers publishers a better business deal than Amazon.  Amazon reportedly offers a 50/50 sales split. Scribd only keeps 20% and allows publishers to set their own price.

So much for “The coming Kindle monopoly” the cranks over at Oligopoly Watch warn us about!

kindle-vs-nookIt would be more accurate to say that Scribd will be “Kindling” e-book competition within the base of Kindle users, and of course, competing devices like  Barnes & Noble’s Nook offer cross-platform competition, just as satellite television competes with cable.   In both cases, the platform operator has a strong incentive to compete for users by offering as much content (books/video programming) as possible at attractive prices.

On the one hand, one might say that inter-platform competition is stronger in the case of video delivery platforms, because users generally lease equipment on a month-to-month basis, while e-book users must buy their $250+ device up-front (making it therefore harder to switch from Amazon to Barnes & Noble, if one decides one doesn’t like the offerings or prices for e-books on the Kindle).  But on the other hand, if Scribd can compete head-to-head with Amazon in offering e-books on Amazon’s Kindle (and perhaps on the Note, too, someday soon), users don’t need to switch devices at all: They can just switch e-book providers. Furthermore since e-books are bought on an à la carte basis, users don’t have to switch completely, they can just switch for any particular book—meaning that Amazon needs to compete for every additional purchase they can get, which means lower prices and more choices for consumers.

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With the advent of new technology, newspapers are being threatened.  Many are expected to go out of business, and the rest will have to change substantially.  Many observers fear that journalism will become too driven by speed, and that judgment and deliberation will be lost.  Others said that news reporting would be devalued and only those providing analysis and opinion would survivie.  Worst of all, worries that the new technology will lead to a monopoly over information.

A description of the dire situation faced by newspapers today as they face the Internet?  No.  These are the concerns expressed in the 1840s as the telegraph transformed the news business.   This week’s Economist tells the story of how Samuel Morse’s invention was thought to signal the death knell for newspapers, and to thoughtful journalism.

As it turned out, the news business was tranformed.   But not in the ways many feared.   With faster communications, the quality of news, and of the information Americans received, improved.  Newspapers had to adapt, but survived and even prospered.  And no one ever created a monopoly over information.

 Good reading.