Sometimes it is easy to miss the forest for the trees.

That may be the case with the outlook for the DOJ v. AT&T-Time Warner case.

In this analysis, rather than recount the legal antitrust “trees” that have been well-argued in the DOJ’s complaint brief and AT&T-Time Warner’s defense brief, and the rule of law “tree” I analyzed initially, it is important to focus on how this case is highly-unusual in one characteristic, and that characteristic begs us to try and examine the forest not the trees.

What is highly-unusual about this precedent-driven case is the Judge, U.S. District Court Senior Judge Richard J. Leon.

That’s because he is the judge who is currently overseeing the 2011-2018 behavioral consent decree of the Comcast-NBCUniversal merger, and the judge who wrote the most relevant legal precedent for this pending merger, a highly-analogous vertical-merger of a communications distributor buying significant content.

In 2011, the DOJ presented Judge Leon a proposed consent decree with Comcast-NBCUniversal that had extensive behavioral remedies that the DOJ sought, and the companies accepted, to which Judge Leon added some behavior remedies of his own, before approving that consent decree in September 2011.

On net neutrality, we have all been tricked by the masters of misdirection.

For many years Google, Facebook, Amazon, and the Internet Association have deftly misdirected the media’s and government’s attention away from their unaccountable market power, discriminatory models and practices, and real consumer protection problems, towards the potential for discrimination by legacy-regulated, competitive, broadband providers.

The masterful misdirection becomes painfully obvious when one looks at the facts.

First, it’s the supposedly “competitive” Internet “edge” that is hyper-dominant and hyper-concentrated, and it is America’s broadband industry that is the most competitive in the world.

NetCompetition: To Advance Internet Openness & Freedom, FCC Transparently Leads by Example

FOR IMMEDIATE RELEASE, November 21, 2017, Contact:  Scott Cleland 703-217-2407

Kudos to the Pai FCC for Unprecedented Transparency in Restoring Internet Openness & Freedom

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

“We look forward to reading with the public the FCC’s proposed Restore Internet Freedom Order tomorrow, three weeks before a public vote. This is how a good government regulatory process works, and how leading by example is done -- letting everyone see what is being voted on, three weeks before the vote, so that those affected can exercise their constitutional and due process rights of assembly and petitioning their government, and then the FCC Commissioners can consider the public’s input, and then vote.”

“This open and transparent Pai FCC process is in stark contrast to how the FCC’s 2015 Open Internet Order process was handled, where the public and those most affected, could not see or discuss what the FCC actually voted on, until weeks after the FCC voted, when their views were moot.”

“Enabling a free and open public discussion of the very welcome, reported full repeal of the 2015 FCC Open Internet Order, before voting on it, not only shows respect for a free and open Internet, but also respect for the public, due process and the likely reviewing court. This is the right way to make a major regulatory decision.”  

NETCompetition.org is a pro-competition e-forum representing broadband interests.

Scott Cleland served as Deputy U.S. Coordinator for  International Communications and Information Policy in the George H. W. Bush Administration. 

Please don’t miss my latest Daily Caller op-ed, “State Attorneys General Can Expose Google’s Pervasive Anti-Consumer Practices.”

While I agree with the economic liberty, principled approach of limited government and a reduction in regulation that DOJ Assistant Attorney General Makan Delrahim, explained in his remarks before the ABA’s Antitrust forum today, I also believe in the equally important economic liberty principles of equal protection under the law and due process. Both are important to fair and equal antitrust administration of Justice in a free market.

Since the DOJ apparently is telegraphing its intention to file suit to block the AT&T-Time-Warner merger, because it reportedly prefers structural remedies over behavioral remedies, I appreciate that for the DOJ to prevail in court, it must operate a fair merger review process, and prove its case on the merits in a court of law.  

In the specific case of the AT&T-Time-Warner merger, which was considered in 2016 and announced October 22, 2016, the companies evaluated the merger based on the known, long-standing, consistent, vertical-integration, legal precedents at that time and that today remain the operative legal antitrust precedents in court.

For those, like AT&T and Time Warner, that by no fault of their own, staked their business future on the legitimate economic liberty assumption of non-discriminatory application of antitrust rule of law, they now a year into a DOJ review process, find that economic liberty assumption apparently supplanted with a late-game change -- to rule of antitrust enforcement policy preference.

I am not saying that a new Administration, or a new DOJ Antitrust Chief cannot put their mark on antitrust enforcement.

Washington increasingly is asking what are Google, Amazon, and Facebook?

That’s because they seem to be in the middle of many vexing problems spanning culture, politics, civility, economics, competition, jobs, investment, national security, public safety, consumer welfare, etc.

At core, Google, Amazon, and Facebook are unregulated, economy-wide, distribution networks, that de facto are taking control over core economic processes.

They are modern-day Standard Oils. Google is Standard Data. Amazon is Standard Commerce. Facebook is Standard Social.

Doubt it? Consider reality.

Standard Data: Alphabet-Google is the distribution network for over 4 billion search users, 2 billion Android devices, 15 million publisher partners, 5 million advertiser clients, and 400,000 Android developers. Google’s network has over 200 data-capturing products and services, 15 of the world’s fastest, highest-capacity data centers, and 2000 server points of presence in over 150 countries.

Google commands 19 of the top 25 Android apps downloaded over a billion times including: Search, Play, Gmail, Maps, YouTube, Google+, Text-to-Speech, Chrome, Play Books, Play Games, Play Music, Play Newsstand, Play Movies & TV, Drive, Photos, and StreetView.

Google’s unmatched data horde has 60 trillion URLs crawled, and a 100 billion gigabyte database that includes vast quantities of exclusive content: 2 billion videos, 28 million miles of maps, 25 million books, 1.6 billion facts, 1.5 million apps, and 75,000 news sources.

Standard Commerce: In the U.S., Amazon is by far the biggest distribution network of commercial goods and services. Amazon offers 400 million products and services, about ten times the inventory of #2 Walmart. Over 60% of American households, representing about 90% of American consumer buying power, are contractual members of Amazon Prime to get unlimited free delivery and other loss-leader member benefits.

Please don’t miss my Daily Calller op-ed: “Treat The Cause Not the Symptom of Google & Facebook’s Election Unaccountability.”

Facts are stubborn things. Know what one finds when one puts the evidence of Google's many antitrust, IP, and privacy offenses into one telling timeline of what Google did from 2008-2017?

You can’t make this stuff up.

Asymmetric Realities: The five most valuable companies – Apple $802b, Alphabet-Google $688b, Microsoft $585b, Facebook $500b, and Amazon $475b – are together worth an unprecedented $3 trillion and widely-appreciated to be dominant in the communications-driven businesses of smartphones, search advertising, subscription business productivity software, social advertising, and ecommerce platform services respectively.

In Washington’s theater of the absurd, these well-known, winner-take-all platforms, are playing the role of victims of potential harms, that supposedly can’t afford to shoulder the potential risks for the potential net neutrality problems that they allege are potentially serious, when they produce $131b annually in free cash flow and have $357b in cash (mostly overseas).

The richest and most powerful among us are collectively urging the FCC to specially protect their businesses by continuing to maximally regulate their communications counterparts with the “strongest possible” utility regulation in the FCC’s 2015 Open Internet Order, that conveniently advantages the most dominant edge platforms most with a de facto permanent price of zero for their outsized usage of America’s downstream Internet infrastructure.

That’s winner-take-all thinking.

Ever wonder why Google, Facebook, Twitter, Amazon, Uber, Airbnb, and their Internet Association allies are caught repeatedly enabling so many dreadful activities on their platforms? There’s minimal risk to them in doing so.

Everyone knows if there is no perceived risk for doing certain wrongs for money, many people certainly will do those wrongs, or look the other way while others do those wrongs on their property for the money, because they’ve learned they can get away with it.

It’s not only human nature, but it’s also a fundamental failure of government’s first purpose to protect its citizenry -- when zero-deterrence for certain wrongs on a certain technology is de facto American policy.

In 1996, a well-intentioned Congress passed a balanced Communications Decency Act (CDA) as an amendment to the 1996 Telecom Act, that on one hand would prevent “obscene, harassing, and wrongful utilization of telecommunications facilities” (Title V) and on the other hand, would create legal “protection for ‘Good Samaritan’ blocking and screening of offensive material” (Title II, Section 230).

Together, Congress intended that certain content was harmful, thus it made sense to provide “Good Samaritan” immunity for websites that in good faith removed the types of content the original CDA found harmful.

However, in 1997, the Supreme Court overturned the consumer-protection and responsibility part of the CDA as poorly-written law that violated the First Amendment, but kept the other half of the balanced act, the “Good Samaritan” intermediary liability protection.

This unintended consequence made the symmetric CDA asymmetric, untethering Section 230 from its original moorings intended by Congress.

This unintended asymmetric outcome has created a perverse dynamic.