What is Past is Prologue: Lessons to be Learned Before Any New #CommActUpdate…

Posted on by

Last week, the House Energy and Commerce Committee held its kick-off hearing on a potential update of our nation’s communications laws with no less than four former FCC Chairmen.  As was appropriate, the hearing did not focus on specific items for change, but rather facilitated an excellent discussion of broad themes on how Congress should approach the complex task ahead.  I commend the Committee for holding this discussion, because it is very important, in the words of Congressman John Dingell, for Congress to “legislate properly” in order to minimize the inevitable unintended consequences.  Indeed, while Congress has had its share Continue Reading »

The FCC Must Satisfy a High Legal Threshold if it Wants to Impose Bidder Exclusion Rules…

Posted on by

According to press reports, the Federal Communications Commission is putting the finishing touches on its much-anticipated order establishing the rules for the upcoming voluntary incentive auctions mandated by the Middle Class Tax Relief and Jobs Creation Act of 2012 (the “Spectrum Act”).  The big question, of course, is whether the FCC will impose some sort of bidder exclusion rules that would prohibit—or, at minimum, severely constrain—AT&T and Verizon from acquiring more spectrum in the auction.  While newly-installed FCC Chairman Tom Wheeler is playing his cards close to the vest, given the Sixth Circuit’s reasoning in Cincinnati Bell v. FCC, 69 Continue Reading »

Price, Profit, and Efficiency: Mark Cooper’s Bungled Analysis

Posted on by

Last month, I was generously invited to join a panel put together by the New America Foundation (“NAF”) at a Capitol Hill event entitled Spectrum Auctions: Promoting More Mobile Market Competition . . . or Less?  (For those interested, video of my panel is available here.)  It was an honor to participate, and kudos to Michael Calabrese from NAF for putting together a great event.  On the panel, I was joined by Mark Cooper (Consumer Federation of America), Fred Campbell (Competitive Enterprise Institute), and Peter Cramton (professor at the University of Maryland).  I found the discussion interesting, informative, and mostly Continue Reading »

New America Foundation Misinterprets International Data (Round Three)…

Posted on by

Aujourd’hui ce qui ne vaut pas la peine d’être dit, on le chante.   This line, from Le Barbier de Séville, is translated as, “Nowadays what isn’t worth saying is sung.”  International comparisons of broadband services certainly fall into this category, and this week the New America Foundation is singing again with a 2013 update to its 2012 Cost of Connectivity Report.  While New America’s 2013 Report has garnered some glowing accolades in the press (see, e.g., here and here), the hard reality is that New America’s 2013 Report continues to commit all of the numerous technical errors I highlighted Continue Reading »

Who is at Fault for On-Line Piracy? According to PiracyData.org, Blame the Victim…

Posted on by

Yesterday, scholars at the Mercatus Center unveiled a new website entitled PiracyData.org.  According to the site’s co-creator Jerry Brito, the purpose of this webpage is to determine whether the most-pirated movies each week are available for legal streaming, digital rental, or digital purchase.  To accomplish this goal, the site combines TorrentFreak’s weekly top-ten list of the most pirated movies with Can I Stream It’s database of movie availability. In light of the demonstrated unreliability of the site’s data—something Mr. Brito concedes—no conclusions or even sensible speculations can be drawn from PiracyData.org.  But, one meaningful question to ask is why is Continue Reading »

A Response to the WaPo’s Timothy Lee: Why Comcast is NOT Acting Like a Monopolist…

Posted on by

In a recent article, Washington Post technology reporter Timothy Lee suggested that “broadband speeds were stagnating in the United States”, resulting in “slow innovation and poor customer service.” Comcast—the nation’s largest broadband service provider—begged to differ, and provided Mr. Lee with hard evidence indicating that the opposite was true. While Mr. Lee subsequently admitted his error and conceded that “Comcast’s service really has been getting faster”, Mr. Lee attempts to use the same data to argue that Comcast is “acting more and more like a monopolist.” Specifically, Mr. Lee contends that these data reveal that Comcast is “focus[ing] on maximizing Continue Reading »

A Fresh Analytical Start at the FCC…

Posted on by

The Federal Communications Commission is at a crossroads.  Burdened with implementing laws designed for a market structure of a bygone era—and with little prospect of a comprehensive legislative update on the horizon—incoming FCC Chairman Tom Wheeler faces a daunting task to adapt and modernize the agency’s approach to regulation so that we can remove, in President Obama’s words, those rules which have “outlived their usefulness.”  Equally as important, Mr. Wheeler has the related and no less daunting task of re-establishing the FCC’s credibility with the industry, Capitol Hill, the courts and (most importantly) the public as the “expert” agency which Continue Reading »

The Curious Cases of Aereo, BarryDriller and FilmOn X…

Posted on by

With proliferating advances in new technology, enforcing copyright in the digital age is becoming increasingly difficult.  Take for example the string of cases over the last twelve months which have ruled on the legality of new third-party subscription services (described in more detail below) designed to allow customers to view over-the-air broadcast television via the internet and mobile devices.  At issue was a simple legal question: do these services facilitate a “public performance” of protected works under Section 101 of the Copyright Act (a.k.a. the “Transmit Clause”), which provides, inter alia, that a work is performed publicly whenever such work Continue Reading »