Please don't miss my new Op-ed for The Hill here, entitled "Courts, Not FTC, Should Decide On Google Practices."
Simply, why shouldn't a court of law, based on the law, due process and the facts be the entity to ultimately decide if Google is guilty or innocent of deceptive search bias, not the FTC?
This week Google's actions made the case that U.S. communications law and regulation is obsolete.
The Head of Google Fiber disclosed that Google considered offering phone services in Kansas City as part of its bundle of Gigabit "ultra high-speed" Internet service and TV offering, but declined to do so when they became familiar with the prohibitive morass of legacy analog federal and state telephone regulations with which Google would have had to comply. While acknowledging that the incremental cost of offering voice services would have been "almost nothing," Mr. Medin lamented that Google would have had to build a more complex billing system to comply with the various state calculations in Kansas and Missouri.
It is telling that with all the special tax breaks and large business subsidies that Google was offered to choose Kansas City as the pilot Google Fiber city, they were still not enough to offset the high operational, management, and regulatory costs to comply with legacy telephone regulations.
There are many strong reasons for conservatives to be skeptical of proposed copyright reform and new entreaties for conservatives to actually lead a copyright reform effort.
While Mr. Brito's reasoned intro shows why there is a legitimate debate to be had concerning the Constitutional definition of "limited times" to authors for "their respective writings" and provides some context to justify his position, Mr. Brito does not provide the full context necessary for conservatives to make an informed decision of whether or not they should support copyright reform let alone lead the charge for it.
Let's examine the strong reasons conservatives should be skeptical here.
While the D.C. Circuit Court of Appeals gave the FCC a significant win in upholding the FCC's Data Roaming Order, the incremental, serpentine, and limiting way the court did it suggests that this same Court will likely not uphold the FCC's sweeping assertion of legislative-like Internet regulation authority in its Open Internet Order.
In upholding the Data Roaming Order, the Court was faced with a set of facts where the FCC already had clear authority to require mobile voice roaming and the question was whether the FCC had enough authority to extend it to data roaming. In excruciating legal detail, the Court explained why the FCC had the Title III radio authority for this limited action and why the FCC "warrants deference" in this "gray area" of determining when a service is or isn't common carrier. Nevertheless, the court warned the FCC to not try and overreach beyond the narrow boundaries that the court allowed.
Simply, the court gave the FCC more leash in this set of circumstances, but still warned they remained on the court's leash.
The number and seriousness of irregularities, deficiencies, and unanswered questions in the FTC's antitrust investigation of Google's alleged search bias warrant oversight by the Senate and House Antitrust Subcommittees and investigative reporting by the media.
I can't remember reading a more misinformed op-ed than today's NYT's "Bad Connections" by David Cay Johnston.
His stated premise that telecommunications competition hasn't fulfilled its promise of lowered prices, more innovation or improved quality since 1974 is apparently blind to obvious commonly-known facts.
In 1974, most all Americans used black rotary-dialed phones, suffered from prohibitively-expensive long distance rates, and phone technology that hadn't changed much for forty years.
Now thanks to competition Americans can:
Press reports indicate that some at the FTC may be questioning if there is sufficient evidence to prove in court the search bias charges recommended by FTC prosecutors. What the media surprisingly has yet to report is that the FTC still has not yet gained access to the thousands of known and likely most-incriminating Google emails and documents that Google has withheld from antitrust investigators -- per the Texas Attorney General's petition to a Federal Court last June.
Intimations that there is no search bias case to prosecute when Google clearly has stonewalled and not fully cooperated with antitrust investigators impugns the integrity of the FTC law enforcement process. These intimations also suggest that Google thinks that its case will be not be decided on the law, merits and evidence, but on political pressure it can bring to bear on the prosecution decision or settlement process.
Background for this post:
Despite reports questioning the evidence of consumer harm in the FTC antitrust investigation of Google, it's obviously there if the FTC chooses to charge Google under its Section 5 authority which prohibits "unfair or deceptive acts or practices." The legal threshold for proving consumer harm under Section 5 versus the Sherman Act is dramatically easier for the FTC prosecution to meet. Thus press reports about Google consumer harm are implicitly more about the furious debate over which law(s) to use than it is about the provability of consumer harm.
A main argument the FTC made to win the turf battle over which antitrust agency would lead the Google antitrust investigation, the DOJ or FTC, was that the FTC had Section 5 authority, in addition to the Sherman Act anti-monopolization authority that the DOJ and FTC both share. Unlike antitrust precedent from the Sherman Act, which guides that consumer harm should outweigh any offsetting innovation or consumer benefits, Congress in Section 5 declared deceiving consumers is illegal harm of consumers.
Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed a policy brief on copyright "myths" last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee's views. Don't expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.
There are at least five fundamental flaws in Mr. Khanna's characterizations.
1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.
Mr. Khanna's effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution's treatment of property rights, and copyrights in particular, are really "myths" that misinterpret what he posits the Founding Fathers really meant to do in promoting "progress of science and the useful arts," puts his opinion squarely at odds with America's two centuries of experience with Constitutional rule of law.
