You are here


US Internet Policy’s Anticompetitive Asymmetric Accountability - DOJ Filing

Note: this post summarizes a Precursor LLC presentation filing for the record of the U.S. DOJ Antitrust Division’s 3-14-18 Roundtable on Antitrust Exemptions & Immunities. See the presentation/filing here.

Presentation Title:

“A Market Divided: U.S. Internet Policy Creates Anticompetitive Asymmetric Accountability.”
Government exemptions and immunities overwhelmingly favor regulatory arbitrage over free market competition. Accountability arbitrage harms: consumer welfare; free market forces; the process of competition; and economic growth.

Executive Summary:

Unregulated Google Facebook Amazon Want Their Competitors Utility Regulated

Americans believe in equal accountability, that no one should be above rules or outside the law.

Then why are America’s only unaccountable network monopolies, Alphabet-Google, Facebook, and Amazon, calling for maximal accountability of utility-grade, network-neutrality regulation for their ISP competitors, but no accountability for their own apparent utility-like, monopoly distribution networks?

Online-Offline Asymmetric Regulation Is Winner-Take-All Government Policy

Online-offline asymmetric regulation is the biggest persistent competition problem in the economy for the next decade. 

Asymmetric commercial treatment by the Government predictably produces asymmetric market outcomes. Everyone knows how an unfair playing field or unfair rules of the game produce favored winners and disfavored losers.

Internet myth is that Google, Facebook, Amazon, Uber, Airbnb, and their “intermedia” Internet Association brethren deserve to be winner-take-all because they are more innovative and better for consumers than offline companies.

The reality is that these companies common “winner-take-all special sauce” is old-fashioned regulatory arbitrage, of its special Section 230 intermediary immunity from liability, regulation, and accountability.

To date, the intermedia’s decade-long, bankrolling and public leadership of the Title II net neutrality regulation of broadband effort, has been a spectacularly effective diversion of public and government attention from the intermedia’s regulatory arbitrage of their winner-take-all, asymmetric regulation advantages.

NetCompetition Statement on Election, Communications Law/Policy & FCC

FOR IMMEDIATE RELEASE, November 9, 2016, Contact:  Scott Cleland 703-217-2407


Election Provides Opportunity to Modernize Communications and Privacy Laws; And to Ensure a Pro-competition FCC that Fully Respects the Rule of Law, Facts, Due Process, Property Rights and Contracts


FCC’s Haphazard Privacy Policy Gaps Disserve Consumers

The FCC’s proposed broadband privacy rules are haphazard and have more random and conflicting “gaps” than Swiss cheese has holes. 

That’s because the FCC’s approach to privacy is obviously jurisdiction and technology driven, not consumer-driven.

When will the FCC put consumer privacy protection first, and join with the FTC to work with Congress to comprehensively update privacy legislation for the 21st century?

Consumers deserve so much better than this.  

Let’s count the arbitrary and haphazard privacy gaps in the FCC’s proposed privacy rules.

New App-Based AllVid Proposal Smokes-out Google & Public Knowledge’s Agenda

Are the FCC’s set-top-box proposed rules really about unlocking the set-top-box to competition or are they really about advancing Google and Public Knowledge’s real agenda – forced unlocking of the licensing and copyright protections of the underlying video programming that generates ~$200b in annual revenues?

In response to the FCC Chairman’s request for an alternative approach to the FCC’s current AllVid proposed rules, the Pay TV coalition has proposed an app-based solution that solves all of the FCC’s publicly-stated problems with cable set-top boxes.

FCC Unequal ISP Privacy Policy Is Unequal Protection & Unequal Opportunity

The FCC’s just-passed, 3-2 unequal ISP privacy policy spotlights how badly the FCC has lost its way.

In prioritizing the equality rights of inanimate digital bits above the equal protection and equal opportunity rights the American people enjoy under our constitutional republic, the FCC is discriminating in favor of open cronyism over equal consumer protection and equal competitive opportunity.

Moody’s Investors Service has done everyone a service in exposing the FCC’s Title II reclassification and privacy policy for what it really is – arbitrary unequal treatment under the law.

When the FCC proposed these ISP privacy rules three weeks ago, Moody’s called the FCC’s proposal as it saw it in a Sector Comment March 14 entitled: “FCC’s broadband privacy proposal credit negative for linear TV and wireless providers – Over half a trillion in rated debt affected.” 

FCC’s Apparent Arbitrary AllVid Proposal

Contradiction contradiction contradiction,” rather than “competition competition competition,” would be a more accurate description of what the FCC’s apparent arbitrary AllVid set-top-box proposal produces.

Contradiction #1: FCC rules cable competitive in 2015, but not in 2016.

In June 2015, the FCC ruledthat cable operators are subject to… "Competing Provider Effective Competition”” exempting cable from regulations, but in the spring of 2016, the FCC tentatively concludes that the ancillary cable set-top-box market is not competitive warranting maximal regulation.

Court Preview: Activists Expose Net Neutrality’s Biggest Legal Problems

Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality “policy canon” i.e. bans against “paid prioritization” and “two-sided markets” (only users should pay), are also likely unlawful, even under Title II, sans new legislation.

A preview of oral arguments December 4 before the D.C. Circuit Court of Appeals in the legal challenge to the FCC’s 2015 Open Internet Order warrants more than the already well-covered standard comparison of both sides legal arguments over the legality of Title II.

In the 2014 Verizon v. FCC decision, that overturned much of the FCC’s net neutrality “effort to compel broadband providers to treat all Internet traffic the same regardless of source,” Judge David Tatel’s starting point was what does the FCC want to compel from others and does it have the legal authority and latitude to do so – sans new legislation.

(This analysis assumes the near obvious that Judge Tatel will lead and write this decision.)   

The FCC’s Abjectly Illegitimate Premise for More Cable Regulation

There are troubling signals that the FCC is gearing up to further increase regulation of cable -- on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order. 

What is profoundly troubling is the abject illegitimacy of their premise for more regulation of cable, i.e. the FCC’s new arbitrary and capricious definition of broadband that illegitimately redefined long-recognized, strong broadband competition -- out of existence with the stroke of a pen.

So what are the signals of more cable regulation? Two speeches from the FCC Chairman, one from the FCC General Counsel, another from the DOJ Antitrust Chief, a variety of Hill and edge-industry entreaties to regulate cable more via new MVPD or ALLVID regulatory proceedings, (but of course without regulating favored edge providers), and an explosion of new opposition to the proposed Charter-Time-Warner merger (by the exact same cast of characters whose opposition doomed the Comcast-Time-Warner merger).

This broad simultaneous level of focused regulatory chatter and organized activity is not coincidental, but highly-orchestrated and abjectly illegitimate.

Why is more cable regulation abjectly illegitimate?   


Q&A One Pager Debunking Net Neutrality Myths