On February 13 an administrative law judge (ALJ) at the California Public Utility Commission (CPUC) issued a proposed decision regarding the Comcast/Time Warner Cable (TWC) merger. The proposed decision recommends that the CPUC approve the merger with conditions.

It’s laudable that the ALJ acknowledges at least some of the competitive merits of the proposed deal. But the set of conditions that the proposed decision would impose on the combined company in order to complete the merger represents a remarkable set of unauthorized regulations that are both inappropriate for the deal and at odds with California’s legislated approach to regulation of the Internet.

According to the proposed decision, every condition it imposes is aimed at mitigating a presumed harm arising from the merger:

The Applicants must meet the conditions adopted herein in order to provide reasonable assurance that the proposed transaction will be in the public interest in accordance with Pub. Util. Code § 854(a) and (c).… We only adopt conditions which mitigate an effect of the merger in order to satisfy the public interest requirements of § 854.

By any reasonable interpretation, this would mean that the CPUC can adopt only those conditions that address specific public interest concerns arising from the deal itself. But most of the conditions in the proposed decision fail this basic test and seem designed to address broader social policy issues that have nothing to do with the alleged competitive effects of the deal.

Instead, without undertaking an analysis of the merger’s competitive effects, the proposed decision effectively accepts that the merger serves the public interest, while also simply accepting the assertions of the merger’s opponents that it doesn’t. In the name of squaring that circle, the proposed decision seeks to permit the merger to proceed, but then seeks to force the post-merger company to conform to the merger’s critics’ rather arbitrary view of their preferred market structure for the provision of cable broadband services in California.

For something — say, a merger — to be in the public interest, it need not further every conceivable public interest goal. This is a perversion of the standard, and it turns “public interest” into an unconstrained license to impose a regulatory wish-list on particular actors, outside of the scope of usual regulatory processes.

While a few people may have no problem with the proposed decision’s expansive vision of Internet access regulation, California governor Jerry Brown and the overwhelming majority of the California state legislature cannot be counted among the supporters of this approach.

In 2012 the state legislature passed by an overwhelming margin — and Governor Brown signed — SB 1161 (codified as Section 710 of the California Public Utilities Code), which expressly prohibits the CPUC from regulating broadband:

The commission shall not exercise regulatory jurisdiction or control over Voice over Internet Protocol and Internet Protocol enabled services except as required or expressly delegated by federal law or expressly directed to do so by statute or as set forth in [certain enumerated exceptions].”

The message is clear: The CPUC should not try to bypass clear state law and all institutional safeguards by misusing the merger clearance process.

While bipartisan majorities in the state house, supported by a Democratic governor, have stopped the CPUC from imposing new regulations on Internet and VoIP services through SB 1161, the proposed decision seeks to impose regulations through merger conditions that go far beyond anything permitted by this state law.

For instance, the proposed decision seeks to impose arbitrary retail price controls on broadband access:

Comcast shall offer to all customers of the merged companies, for a period of five years following the effective date of the parent company merger, the opportunity to purchase stand-alone broadband Internet service at a price not to exceed the price charged by Time Warner for providing that service to its customers, and at speeds, prices, and terms, at least comparable to that offered by Time Warner prior to the merger’s closing.

And the proposed decision seeks to mandate market structure in other insidious ways, as well, mandating specific broadband speeds, requiring a break-neck geographic expansion of Comcast’s service area, and dictating installation and service times, among other things — all without regard to the actual plausibility (or cost) of implementing such requirements.

But the problem is even more acute. Not only does the proposed decision seek to regulate Internet access issues irrelevant to the merger, it also proposes to impose conditions that would actually undermine competition.

The proposed decision would impose the following conditions on Comcast’s business VoIP and business Internet services:

Comcast shall offer Time Warner’s Business Calling Plan with Stand Alone Internet Access to interested CLECs throughout the combined service territories of the merging companies for a period of five years from the effective date of the parent company merger at existing prices, terms and conditions.

Comcast shall offer Time Warner’s Carrier Ethernet Last Mile Access product to interested CLECs throughout the combined service territories of the merging companies for a period of five years from the effective date of the parent company at the same prices, terms and conditions as offered by Time Warner prior to the merger.

But the proposed decision fails to recognize that Comcast is an also-ran in the business service market. Last year it served a small fraction of the business customers served by AT&T and Verizon, who have long dominated the business services market:

According to a Sept. 2011 ComScore survey, AT&T and Verizon had the largest market shares of all business services ISPs. AT&T held 20% of market share and Verizon held 12%. Comcast ranked 6th, with 5% of market share.

The proposed conditions would hamstring the upstart challenger Comcast by removing both product and pricing flexibility for five years – an eternity in rapidly evolving technology markets. That’s a sure-fire way to minimize competition, not promote it.

The proposed decision reiterates several times its concern that the combined Comcast/Time Warner Cable will serve more than 80% of California households, and “reduce[] the possibilities for content providers to reach the California broadband market.” The alleged concern is that the combined company could exercise anticompetitive market power — imposing artificially high fees for carrying content or degrading service of unaffiliated content and services.

The problem is Comcast and TWC don’t compete anywhere in California today, and they face competition from other providers everywhere they operate. As the decision matter-of-factly states:

Comcast and Time Warner do not compete with one another… [and] Comcast and Time Warner compete with other providers of Internet access services in their respective service territories.

As a result, the merger will actually have no effect on the number of competitive choices in the state; the increase in the statewide market share as a result of the deal is irrelevant. And so these purported competition concerns can’t be the basis for any conditions, let alone the sweeping ones set out in the proposed decision.

The stated concern about content providers finding it difficult to reach Californians is a red herring: the post-merger Comcast geographic footprint will be exactly the same as the combined, pre-merger Comcast/TWC/Charter footprint. Content providers will be able to access just as many Californians (and with greater speeds) as before the merger.

True, content providers that just want to reach some number of random Californians may have to reach more of them through Comcast than they would have before the merger. But what content provider just wants to reach some number of Californians in the first place? Moreover, this fundamentally misstates the way the Internet works: it is users who reach the content they prefer; not the other way around. And, once again, for literally every consumer in the state, the number of available options for doing so won’t change one iota following the merger.

Nothing shows more clearly how the proposed decision has strayed from responding to merger concerns to addressing broader social policy issues than the conditions aimed at expanding low-price broadband offerings for underserved households. Among other things, the proposed conditions dramatically increase the size and scope of Comcast’s Internet Essentials program, converting this laudable effort from a targeted program (that uses a host of tools to connect families where a child is eligible for the National School Lunch Program to the Internet) into one that must serve all low-income adults.

Putting aside the damage this would do to the core Internet Essentials’ mission of connecting school age children by diverting resources from the program’s central purpose, it is manifestly outside the scope of the CPUC’s review. Nothing in the deal affects the number of adults (or children, for that matter) in California without broadband.

It’s possible, of course, that Comcast might implement something like an expanded Internet Essentials program without any prodding; after all, companies implement (and expand) such programs all the time. But why on earth should regulators be able to define such an obligation arbitrarily, and to impose it on whatever ISP happens to be asking for a license transfer? That arbitrariness creates precisely the sort of business uncertainty that SB 1161 was meant to prevent.

The same thing applies to the proposed decision’s requirement regarding school and library broadband connectivity:

Comcast shall connect and/or upgrade Internet infrastructure for K-12 schools and public libraries in unserved and underserved areas in Comcast’s combined California service territory so that it is providing high speed Internet to at least the same proportion of K-12 schools and public libraries in such unserved and underserved areas as it provides to the households in its service territory.

No doubt improving school and library infrastructure is a noble goal — and there’s even a large federal subsidy program (E-Rate) devoted to it. But insisting that Comcast do so — and do so to an extent unsupported by the underlying federal subsidy program already connecting such institutions, and in contravention of existing provider contracts with schools — as a condition of the merger is simple extortion.

The CPUC is treating the proposed merger like a free-for-all, imposing in the name of the “public interest” a set of conditions that it would never be permitted to impose absent the gun-to-the-head of merger approval. Moreover, it seeks to remake California’s broadband access landscape in a fashion that would likely never materialize in the natural course of competition: If the merger doesn’t go through, none of the conditions in the proposed decision and alleged to be necessary to protect the public interest will exist.

Far from trying to ensure that Comcast’s merger with TWC doesn’t erode competitive forces to the detriment of the public, the proposed decision is trying to micromanage the market, simply asserting that the public interest demands imposition of it’s subjective and arbitrary laundry list of preferred items. This isn’t sensible regulation, it isn’t compliant with state law, and it doesn’t serve the people of California.

In its February 25 North Carolina Dental decision, the U.S. Supreme Court, per Justice Anthony Kennedy, held that a state regulatory board that is controlled by market participants in the industry being regulated cannot invoke “state action” antitrust immunity unless it is “actively supervised” by the state.  In so ruling, the Court struck a significant blow against protectionist rent-seeking and for economic liberty.  (As I stated in a recent Heritage Foundation legal memorandum, “[a] Supreme Court decision accepting this [active supervision] principle might help to curb special-interest favoritism conferred through state law.  At the very least, it could complicate the efforts of special interests to protect themselves from competition through regulation.”)

A North Carolina law subjects the licensing of dentistry to a North Carolina State Board of Dental Examiners (Board), six of whose eight members must be licensed dentists.  After dentists complained to the Board that non-dentists were charging lower prices than dentists for teeth whitening, the Board sent cease-and-desist letter to non-dentist teeth whitening providers, warning that the unlicensed practice dentistry is a crime.  This led non-dentists to cease teeth whitening services in North Carolina.  The Federal Trade Commission (FTC) held that the Board’s actions violated Section 5 of the FTC Act, which prohibits unfair methods of competition, the Fourth Circuit agreed, and the Court affirmed the Fourth Circuit’s decision.

In its decision, the Court rejected the claim that state action immunity, which confers immunity on the anticompetitive conduct of states acting in their sovereign capacity, applied to the Board’s actions.  The Court stressed that where a state delegates control over a market to a non-sovereign actor, immunity applies only if the state accepts political accountability by actively supervising that actor’s decisions.  The Court applied its Midcal test, which requires (1) clear state articulation and (2) active state supervision of decisions by non-sovereign actors for immunity to attach.  The Court held that entities designated as state agencies are not exempt from active supervision when they are controlled by market participants, because allowing an exemption in such circumstances would pose the risk of self-dealing that the second prong of Midcal was created to address.

Here, the Board did not contend that the state exercised any (let alone active) supervision over its anticompetitive conduct.  The Court closed by summarizing “a few constant requirements of active supervision,” namely, (1) the supervisor must review the substance of the anticompetitive decision, (2) the supervisor must have the power to veto or modify particular decisions for consistency with state policy, (3) “the mere potential for state supervision is not an adequate substitute for a decision by the State,” and (4) “the state supervisor may not itself be an active market participant.”  The Court cautioned, however, that “the adequacy of supervision otherwise will depend on all the circumstances of a case.”

Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented, arguing that the Court ignored precedent that state agencies created by the state legislature (“[t]he Board is not a private or ‘nonsovereign’ entity”) are shielded by the state action doctrine.  “By straying from this simple path” and assessing instead whether individual agencies are subject to regulatory capture, the Court spawned confusion, according to the dissenters.  Midcal was inapposite, because it involved a private trade association.  The dissenters feared that the majority’s decision may require states “to change the composition of medical, dental, and other boards, but it is not clear what sort of changes are needed to satisfy the test that the Court now adopts.”  The dissenters concluded “that determining when regulatory capture has occurred is no simple task.  That answer provides a reason for relieving courts from the obligation to make such determinations at all.  It does not explain why it is appropriate for the Court to adopt the rather crude test for capture that constitutes the holding of today’s decision.”

The Court’s holding in North Carolina Dental helpfully limits the scope of the Court’s infamous Parker v. Brown decision (which shielded from federal antitrust attack a California raisin producers’ cartel overseen by a state body), without excessively interfering in sovereign state prerogatives.  State legislatures may still choose to create self-interested professional regulatory bodies – their sovereignty is not compromised.  Now, however, they will have to (1) make it clearer up front that they intend to allow those bodies to displace competition, and (2) subject those bodies to disinterested third party review.  These changes should make it far easier for competition advocates (including competition agencies) to spot and publicize welfare-inimical regulatory schemes, and weaken the incentive and ability of rent-seekers to undermine competition through state regulatory processes.  All told, the burden these new judicially-imposed constraints will impose on the states appears relatively modest, and should be far outweighed by the substantial welfare benefits they are likely to generate.

The following post was authored by Dan Crane, the Frederick Paul Furth, Sr. Professor of Law at the University of Michigan Law School and an occasional TOTM contributor.

Last week, I released a public interest group open letter in support of Tesla’s right to distribute its cars directly.   The letter attracted quite a bit of media attention because of its “strange bedfellows” coalition.  Signatories included pro-consumer and pro-competition groups (American Antitrust Institute, Consumer Federation of America, Consumer Action, and Consumers for Auto Reliability and Safety), pro-business or free market groups (Americans for Prosperity, Institute for Justice, and Mackinac Center), environmental groups (Sierra Club and Environment America), and a pro-technology group (The Information Technology & Innovation Foundation).  The diversity of this coalition—joining scores of prominent economists and law professors and the staff of the Federal Trade Commission, among others—in supporting direct distribution, is a powerful testament to the fact that the appeal of the right to engage in direct distribution is not, and should not be, a partisan political issue.  It should have broad appeal whatever one’s political inclinations.

Yesterday, the Media and Public Relations Director for the National Automobile Dealers Association (“NADA”) forwarded me a link to a blog post by Glenn Kessler, a Washington Post blogger who runs a “Fact Checker” blog, entitled Key Report in battle over car dealer sales is bizarrely outdated.  The thrust of Mr. Kessler’s blog is that a 2009 paper on direct distribution published by Gerald Bodisch, then of the DOJ’s Economic Analysis Group, contains an inaccuracy.  Mr. Kessler finds it “astonishing” that the report has nonetheless featured “prominently” in much of the public advocacy in favor of direct distribution.  (One of the places that Mr. Kessler identifies it being featured is in a “Cato Institute Report,” which is actually not a Cato Institute Report, but an article I wrote in Regulation Magazine which is published by the Cato Institute. Kessler mentions the article being cited in a news story, although he omits to mention another news story in which the article was favorably cited . . . perhaps because it was in the Washington Post?).

Here’s the inaccuracy that Kessler reports, quoting from the Bodisch paper: “Since 2000, customers in Brazil can order the Celta over the Internet from a site that links them with GM’s assembly plant and 470 dealers nationwide.”  Kessler’s blog points out that the statement was no longer true in 2009 when the Bodisch paper was published, since GM discontinued online sales in Brazil in 2006, six years after launching the program.

Kessler is well within his rights to correct an inaccuracy in the Bodisch paper.  But the emphasis and tone of his blog post are bizarre.  He seems to suggest that any citation of the Bodisch paper on the possible cost savings from direct distribution is inherently flawed.  That’s way off base for two reasons.

First, the Bodisch paper did not make claims solely based on GM’s Brazilian experience.  It also made claims from general economic principles and from other empirical studies, such as a 2000 Goldman Sachs report on the potential cost savings from direct distribution.  The Kessler blog gives the impression that all of the recent citations to the Bodisch paper are repeating specific claims about GM in Brazil, whereas most of them are simply citing the Bodisch paper for the general proposition that direct distribution could result in cost savings to consumers.

Second, Kessler seems to assume that GM’s discontinuation of the Internet sales program in Brazil in 2006, after running it for six years, disproves all of the ostensible virtues of the program identified by GM at the time.  That Bodisch neglected to mention that GM had discontinued the program after six years would hardly be worth featuring in a “fact checking” blog unless the fact of the discontinuation undermined the reason the GM program was discussed in the first place.  So why did GM discontinue the program?  Kessler cites a GM spokesman who identifies two reasons, “federal and state tax changes in the country” and “the infrastructure costs to maintain distribution centers.”  The blog post then goes on to talk about how “wildly complicated” the Brazilian tax code is, including an obligation of paying a VAT based on the location of the merchant rather than the location of the customer.

I’m certainly no expert on GM’s Brazilian distribution strategy or the Brazilian tax code, but I can’t for the life of me understand Kessler’s point here.  If GM launched a direct distribution model that created the efficiencies cited in the article and was successful for six years (involving hundreds of thousands of Internet sales) until Brazil made changes to its tax code that resulted in unfavorable tax treatment for Internet sales, how does that remotely show that direct distribution doesn’t result in consumer benefits?  To the extent that the Brazilian tax changes killed the Internet distribution model, this would be just one more example of poor regulation killing an efficient model, not the model being inefficient.

Given that his own account of what happened seems to defeat his central point, I’m left perplexed by why Kessler decided to run this “fact-checking” story.  I’m not perplexed by NADA’s use of it—they no doubt see this as somehow undermining the recent momentum in favor of direct distribution.  As I’ve explained above, it does little to the basic thrust of the Bodisch paper.  But it’s also important to understand that argument in favor of the right to engage in direct distribution is by no means predicated on any particular claim in the Bodisch paper.

Here’s a quick recap of the debate.  In the many fora in which I’ve advocated in favor of the right to engage in direct distribution, I’ve never argued that direct distribution is in fact preferable to dealer distribution as a general matter.  Rather, the argument has always been that consumers benefit when manufacturers can choose the most efficient distribution method for them given their position in in the market.  The dealers have repeatedly made the absurd argument that laws mandating dealer distribution are necessary to break the manufacturer’s “monopoly” over distribution of their cars and hence lower prices to consumers.  As scores of outstanding economists have explained many times—without rebuttal from a single credible economist—that argument misunderstands that a manufacturer cannot increase its profits by charging a retail mark-up over and above whatever market power premium it embeds in the wholesale price.

Further, proponents of the right to engage in direct distribution have argued that, if anything, direct distribution would lower rather than increase consumer prices.  The core of this argument is that vertical integration eliminates double marginalization.  A second part of this argument is that there could be marginal cost savings to the manufacturer from direct distribution—as suggested in the Goldman Sachs report and elsewhere.  A third point is that the dealers themselves are fully aware—and have conceded—that the general effect of direct distribution is to lower rather than raise market prices.  When the dealers have sued to block Tesla in places like Massachusetts, they have alleged that direct distribution leads to “inequitable pricing.”  What they mean, of course, is that it leads to prices that are too low.  (If inequitable pricing meant prices that were too high, the dealers wouldn’t suffer injury and therefore wouldn’t have standing).

In sum, let me repeat that Mr. Kessler is well within his rights to “fact check” whatever he wants and to point out any inaccuracies that he observes.  The thrust of his blog post, however, is way off base.  It is his blog post, not citation to the Bodisch article, that is bizarre.

American standard setting organizations (SSOs), which are private sector-based associations through which businesses come together to set voluntary industrial standards, confer great benefits on the modern economy.  They enable virtually all products we rely upon in modern society (including mechanical, electrical, information, telecommunications, and other systems) to interoperate, thereby spurring innovation, efficiency, and consumer choice.

Many SSO participants hold “standard essential patents” (SEPs) that may be needed to implement individual SSO standards.  Thus, in order to promote widespread adoption and application of standards, SSOs often require participants to agree in advance to reveal their SEPs and to license them on “fair, reasonable, and non-discriminatory” (FRAND) terms.  Historically, however, American SSOs have not sought to micromanage the details of licensing negotiations between holders of SEPs and other patents on the one side, and manufacturers that desire access to those patents on the other.   These have been left up to free market processes, which have led to an abundance of innovative products and services (smartphones, for example) that have benefited consumers and spurred the rapid development of high technology industries.

Unfortunately, this salutary history of non-intervention in licensing negotiations may be about to come to an end, if the Institute of Electrical and Electronics Engineers (IEEE), one of the largest and most influential SSOs in the world (“the world’s largest technical professional society”), formally votes on February 9 to change its patent policy.  As detailed below, the new policy would, if adopted, reduce the value of SEPs, discourage involvement by innovative companies in IEEE standard setting, and undermine support for strong patents, which are critical to economic growth and innovation.

In a February 2, 2015 business review letter, the U.S. Department of Justice’s Antitrust Division (DOJ) informed the IEEE that it had no plans to bring an antitrust enforcement action regarding that SSO’s proposed patent policy changes.  Although it may not constitute an antitrust violation, the new policy would greatly devalue SEPs and thereby undermine incentives to make patents available for use in IEEE standards.  Key features of the proposed policy change are as follows.  The new IEEE policy requires a patentee to provide the IEEE with a letters of assurance waiving its right to seek an injunction against an infringer, in order to have its patents included in an IEEE standard.  The new policy also specifies that an analysis of comparable licenses for purposes of determining a FRAND royalty can only consider licenses for which the SEP holder had relinquished the right to seek and enforce an injunction against an unlicensed implementer.  Moreover, under the change, an SEP holder may seek an injunction only after having fully litigated its claims against an unlicensed implementer through the appeals stage – a process which would essentially render injunctive relief highly impractical if not futile.  In addition, the new policy precludes an SEP holder from conditioning a license on reasonable reciprocal access to non-SEP patents held by the counterparty licensee.  Finally, the new policy straitjackets licensing negotiations by specifying that royalty negotiations must be based on the value of the “relevant functionality of the smallest saleable compliant implementation that practices the essential patent claim.”  This ignores the fact that the benefit that a claimed invention provides to an end product – which is often key to determining reasonable licensing terms – depends on the specific patent and product to be licensed, and not necessarily the “smallest saleable compliant implementation” (for example, a small microchip).  All told, the new IEEE policy creates an imbalance between the rights of innovators (whose patents lose value) and implementers of technologies, and interferes in market processes by inappropriately circumscribing the terms of licensing negotiations.

The press release accompanying the release of the February 2 business review letter included this statement by the letter’s author, Renata Hesse, DOJ’s Acting Assistant Attorney General for the Antitrust Division regarding this matter:  “IEEE’s decision to update its policy, if adopted by the IEEE Board, has the potential to help patent holders and standards implementers to reach mutually beneficial licensing agreements and to facilitate the adoption of pro-competitive standards.”  Regrettably, this may fairly be read as a DOJ endorsement of the new IEEE policy, and, thus, as implicit DOJ support for devaluing SEPs.  As such, it threatens to encourage other SSOs to adopt policies that sharply limit the ability of SEP holders to obtain reasonable returns on their patents.  Individual contract negotiations, that take into account the full set of matter-specific factors that bear on value, are more likely to enhance welfare when they are not artificially constrained by “ground rules” that tilt in favor of one of the two sets of interests represented at the negotiating table.

In its future pronouncements on the patent-antitrust interface, DOJ should bear in mind its 2013 joint policy statement with the U.S. Patent and Trademark Office, in which it stated that “DOJ and USPTO strongly support the protection of intellectual property rights and believe that a patent holder who makes . . . a F/RAND commitment should receive appropriate compensation that reflects the value of the technology contributed to the standard.  It is important for innovators to continue to have incentives to participate in standards-setting activities and for technological breakthroughs in standardized technologies to be fairly rewarded.”  Consistent with this pronouncement, DOJ would be well-advised to clarify its views and explain that it does not support policies that prevent SEP holders from obtaining a fair return on their patents.  Such a statement might be accompanied by a critique of SSO policy changes that place ex ante limitations on SEP holders and thus threaten to undermine welfare-enhancing participation in standard setting.  It would also be helpful, of course, if the IEEE would take note of these concerns and not adopt (or, if it is too late for that, reconsider and rescind) its proposed new patent policy.

In a previous Truth on the Market blog posting, I noted that the FTC recently revised its “advertising substantiation” policy in a highly problematic manner.  In particular, in a number of recent enforcement actions, an FTC majority has taken the position that it will deem advertising claims “deceptive” unless they are supported by two randomized controlled tests (RCTs), and (in the case of food and drug supplements) will require companies to obtain prior U.S. Food and Drug Administration (FDA) approval for future advertising claims.  As I explained in a Heritage Foundation Legal Memorandum, these and other new burdens “may deter firms from investing in new health-related product improvements, in which event consumers who are denied new and beneficial products (as well as useful information about the attributes of current products) will be the losers.  Competition will also suffer as businesses shy away from informational advertising that rewards the highest quality current products and encourages firms to compete on the basis of quality.  Furthermore, the broad scope of these requirements is in tension with the constitutional prohibition on restricting commercial speech no more than is necessary to satisfy legitimate statutory purposes.” (NOTABLY, Commissioner Maureen Ohlhausen has argued against categorically imposing a two RCTs requirement in all cases , explaining that “[i]f we demand too high a level of substantiation in pursuit of certainty, we risk losing the benefits to consumers of having access to information about emerging areas of science and the corresponding pressure on firms to compete on the health features of their products.”  Commissioner Joshua Wright has also opined “that a reflexive approach in requiring two RCTs as fencing-in relief might not always be in the best interest of consumers.”)

In a January 30, 2015 decision, POM Wonderful, LLC v. FTC, the D.C. Circuit took an initial step that may help rein in FTC enthusiasm for imposing a “two RCTs” requirement on future advertising by a firm.  The FTC ruled in 2013 that POM Wonderful, a producer and seller of pomegranate products, violated the FTC Act by making advertisements that suggested POM products could treat, prevent, or reduce heart disease, prostate cancer, and erectile dysfunction.  According to the FTC, the ads were false and misleading because POM lacked valid and adequate scientific evidence to substantiate its claims.  (The FTC determined that scientific findings cited by POM, based on over $35 million of pomegranate-related research, had not been supported by subsequent studies.)   The FTC entered a cease and desist order that barred POM from making future disease claims (claims that its products treat, prevent, or reduce a disease) about its products without “competent and reliable” scientific evidence.  Specifically, the FTC’s order required that such future claims be supported by at least two RCTs.  (NOTABLY, Commissioner Ohlhausen disagreed with the majority’s view that two RCTs were warranted and would have required only one RCT, regarding that study in light of other available scientific evidence.)

POM appealed to the D.C. Circuit, which unanimously held that there was no basis for setting aside the FTC’s finding that many of POM’s ads made false or misleading claims; that there was no First Amendment protection for deceptive advertising; and that requiring an RCT was not too onerous and did not violate the First Amendment.  The court concluded that “the [FTC] injunctive order’s requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech”, consistent with the test for evaluating commercial speech enunciated by the Supreme Court in Central Hudson.  The court, however, also held that “a categorical floor of two RCTs for any and all disease claims . . . fails Central Hudson scrutiny”.  The court stressed that the FTC “fails to demonstrate how such a rigid remedial rule bears the requisite ‘reasonable fit’ with the interest in preventing deceptive speech.”  Significantly, the court also enunciated a strong policy justification, rooted in First Amendment commercial speech concerns, for precluding a categorical “two RCTs” rule:

“Requiring additional RCTs without adequate justification exacts considerable costs, and not just in terms of the substantial resources often necessary to design and conduct a properly randomized and controlled human clinical trial.  If there is a categorical bar against claims about the disease-related benefits of a food product or dietary supplement in the absence of two RCTs, consumers may be denied useful, truthful information about products with a demonstrated capacity to treat or prevent serious disease.  That would subvert rather than promote the objectives of the commercial speech doctrine.”

Accordingly, the court modified the FTC’s order to require that POM possess at least one RCT in support of future health-related advertising claims.  Assuming that the D.C. Circuit’s POM decision is not appealed and remains in force, future advertisers investigated by the FTC will have stronger grounds to resist FTC efforts to impose “two or more RCT” requirements as part of a decree.

This is just a small step in badly-needed reforms, however.  Even a single RCT is unnecessarily onerous in many market settings (and, in my view, ignores the teachings of Central Hudson).  More broadly, as I have previously argued, the FTC should rethink its entire approach and issue new advertising substantiation guidelines that state the FTC:  (1) will seek to restrict commercial speech to the smallest extent possible, consistent with fraud prevention; (2) will apply strict cost-benefit analysis in investigating advertising claims and framing remedies in advertising substantiation cases; (3) will apply a reasonableness standard in such cases, consistent with general guidance found in a 1983 FTC policy statement; (4) will not require clinical studies be conducted in order to substantiate advertising claims; (5) will not require that the FDA or any other agency be involved in approving or reviewing advertising claims; and (6) will avoid excessive “fencing in” relief that extends well beyond the ambit of the alleged harm associated with statements that the FTC deems misleading.  Enactment of such guidelines may be a long-term project, requiring a change in Commission thinking, but it is well worth pursuing, in order to advance both free commercial speech and consumer welfare.

Today the Federal Trade Commission (FTC) missed the mark in authorizing release of a staff report calling for legislation and regulation of the “Internet of Things.”

The Internet of Things is already affecting the daily lives of millions of Americans through the adoption of health and fitness monitors, home security devices, connected cars and household appliances, among other applications.  Such devices offer the potential for improved health-monitoring, safer highways, and more efficient home energy use, and a myriad of other potential benefits.  The rapidly increasing use of such devices, which transfer data electronically, also raises privacy and security concerns.  In November 2014 the FTC convened a one-day workshop to study the rapidly changing Internet of Things.

On January 27, 2015, the FTC staff released a report based on the record established by the workshop and follow-on comments from the public.  Unfortunately, the report went far beyond describing the state of play and setting forth the views of interested parties.  In particular, the FTC staff recommended detailed approaches businesses should follow to promote security and privacy in the Internet of Things, and repeated its prior call for strong data security and breach notification legislation.  The FTC voted 4-1 to issue the staff report, with Commissioner Joshua Wright dissenting and Commissioner Maureen Ohlhausen concurring but expressing opposition to two of the report’s recommendations (calling for privacy legislation and for companies to delete “excessive” but valuable data).

Commissioner Wright’s thoughtful dissent centers on the report’s failure to apply cost-benefit analysis to its recommendations, without which it is not possible to determine whether the recommendations are socially beneficial or harmful.  As Wright points out (footnotes omitted):

“Acknowledging in passing, as the Workshop Report does, that various courses of actions related to the Internet of Things may well have some potential costs and benefits does not come close to passing muster as cost-benefit analysis. The Workshop Report does not perform any actual analysis whatsoever to ensure that, or even to give a rough sense of the likelihood that the benefits of the staff’s various proposals exceed their attendant costs. Instead, the Workshop Report merely relies upon its own assertions and various surveys that are not necessarily representative and, in any event, do not shed much light on actual consumer preferences as revealed by conduct in the marketplace. This is simply not good enough; there is too much at stake for consumers as the Digital Revolution begins to transform their homes, vehicles, and other aspects of daily life.”

More specifically, Wright critiques the FTC’s proposal that companies limit the scope of data retention (“data minimization”) to protect consumers’ “reasonable expectations” and deter data thieves – as he explains, this proposal fails to discuss the magnitude of such costs to consumers and supplies no evidence demonstrating that the benefits of data minimization will outweigh its costs to consumers.  In a similar vein, Wright opposes the report’s proposal that companies adopt specific “security by design” measures, noting that:

“Relying upon the application of these concepts and the Fair Information Practice Principles to the Internet of Things can instead substitute for the sort of rigorous economic analysis required to understand the tradeoffs facing firms and consumers. An economic and evidence-based approach sensitive to those tradeoffs is much more likely to result in consumer-welfare enhancing consumer protection regulation. To the extent concepts such as security by design or data minimization are endorsed at any cost – or without regard to whether the marginal cost of a particular decision exceeds its marginal benefits – then application of these principles will result in greater compliance costs without countervailing benefit. Such costs will be passed on to consumers in the form of higher prices or less useful products, as well as potentially deter competition and innovation among firms participating in the Internet of Things.”

In sum, Wright concludes:

“Before setting forth industry best practices and recommendations for broad-based privacy legislation relating to the Internet of Things – proposals that could have a profound impact upon consumers – the Commission and its staff should, at a minimum, undertake the necessary work not only to identify the potential costs and benefits of implementing such best practices and recommendations, but also to perform analysis sufficient to establish with reasonable confidence that such benefits are not outweighed by their costs at the margin of policy intervention.”

The FTC does best when it rigorously evaluates the costs and benefits of its regulatory recommendations and proposed enforcement actions.  Unfortunately, in recent years it has lost sight of this common sense principle (particularly in the consumer protection area) in imposing highly burdensome advertising substantiation and data security enforcement requirements through litigation and consent decrees.  The detailed recommendations in the Internet of Things report suggest that the FTC may be eyeing public reports as a new source of “friendly persuasion.”  Because many firms may choose to adopt costly FTC business practice “suggestions” so as to avoid costly investigations and litigation, the actual harm in foregone business innovation and consumer welfare losses may not be readily apparent.  The competitive process and American consumers, however, are the losers – as are smaller companies that can less afford to absorb the costs of FTC micromanagement than their larger rivals.

Henry Manne was a great man, and a great father. He was, for me as for many others, one of the most important intellectual influences in my life. I will miss him dearly.

Following is his official obituary. RIP, dad.

Henry Girard Manne died on January 17, 2015 at the age of 86. A towering figure in legal education, Manne was one of the founders of the Law and Economics movement, the 20th century’s most important and influential legal academic discipline.

Manne is survived by his wife, Bobbie Manne; his children, Emily and Geoffrey Manne; two grandchildren, Annabelle and Lily Manne; and two nephews, Neal and Burton Manne. He was preceded in death by his parents, Geoffrey and Eva Manne, and his brother, Richard Manne.

Henry Manne was born on May 10, 1928, in New Orleans. The son of merchant parents, he was raised in Memphis, Tennessee. He attended Central High School in Memphis, and graduated with a BA in economics from Vanderbilt University in 1950. Manne received a JD from the University of Chicago in 1952, and a doctorate in law (SJD) from Yale University in 1966. He also held honorary degrees from Seattle University, Universidad Francesco Marroquin in Guatemala and George Mason University.

Following law school Manne served in the Air Force JAG Corps, stationed at Chanute Air Force Base in Illinois and McGuire Air Force Base in New Jersey. He practiced law briefly in Chicago before beginning his teaching career at St. Louis University in 1956. In subsequent years he also taught at the University of Wisconsin, George Washington University, the University of Rochester, Stanford University, the University of Miami, Emory University, George Mason University, the University of Chicago, and Northwestern University.

Throughout his career Henry Manne ’s writings originated, developed or anticipated an extraordinary range of ideas and themes that have animated the past forty years of law and economics scholarship. For his work, Manne was named a Life Member of the American Law and Economics Association and, along with Nobel Laureate Ronald Coase, and federal appeals court judges Richard Posner and Guido Calabresi, one of the four Founders of Law and Economics.

In the 1950s and 60s Manne pioneered the application of economic principles to the study of corporations and corporate law, authoring seminal articles that transformed the field. His article, “Mergers and the Market for Corporate Control,” published in 1965, is credited with opening the field of corporate law to economic analysis and with anticipating what has come to be known as the Efficient Market Hypothesis (for which economist Eugene Fama was awarded the Nobel Prize in 2013). Manne’s 1966 book, Insider Trading and the Stock Market was the first scholarly work to challenge the logic of insider trading laws, and remains the most influential book on the subject today.

In 1968 Manne moved to the University of Rochester with the aim of starting a new law school. Manne anticipated many of the current criticisms that have been aimed at legal education in recent years, and proposed a law school that would provide rigorous training in the economic analysis of law as well as specialized training in specific areas of law that would prepare graduates for practice immediately out of law school. Manne’s proposal for a new law school, however, drew the ire of incumbent law schools in upstate New York, which lobbied against accreditation of the new program.

While at Rochester, in 1971, Manne created the “Economics Institute for Law Professors,” in which, for the first time, law professors were offered intensive instruction in microeconomics with the aim of incorporating economics into legal analysis and theory. The Economics Institute was later moved to the University of Miami when Manne founded the Law &Economics Center there in 1974. While at Miami, Manne also began the John M. Olin Fellows Program in Law and Economics, which provided generous scholarships for professional economists to earn a law degree. That program (and its subsequent iterations) has gone on to produce dozens of professors of law and economics, as well as leading lawyers and influential government officials.

The creation of the Law & Economics Center (which subsequently moved to Emory University and then to George Mason Law School, where it continues today), was one of the foundational events in the Law and Economics Movement. Of particular importance to the development of US jurisprudence, its offerings were expanded to include economics courses for federal judges. At its peak a third of the federal bench and four members of the Supreme Court had attended at least one of its programs, and every major law school in the country today counts at least one law and economics scholar among its faculty. Nearly every legal field has been influenced by its scholarship and teaching.

When Manne became Dean of George Mason Law School in Arlington, Virginia, in 1986, he finally had the opportunity to implement the ideas he had originally developed at Rochester. Manne’s move to George Mason united him with economist James Buchanan, who was awarded the Nobel Prize for Economics in 1986 for his path-breaking work in the field of Public Choice economics, and turned George Mason University into a global leader in law and economics. His tenure as dean of George Mason, where he served as dean until 1997 and George Mason University Foundation Professor until 1999, transformed legal education by integrating a rigorous economic curriculum into the law school, and he remade George Mason Law School into one of the most important law schools in the country. The school’s Henry G. Manne Moot Court Competition for Law & Economics and the Henry G. Manne Program in Law and Economics Studies are named for him.

Manne was celebrated for his independence of mind and respect for sound reasoning and intellectual rigor, instead of academic pedigree. Soon after he left Rochester to start the Law and Economics Center, he received a call from Yale faculty member Ralph Winter (who later became a celebrated judge on the United States Court of Appeals) offering Manne a faculty position. As he recounted in an interview several years later, Manne told Winter, “Ralph, you’re two weeks and five years too late.” When Winter asked Manne what he meant, Manne responded, “Well, two weeks ago, I agreed that I would start this new center on law and economics.” When Winter asked, “And five years?” Manne responded, “And you’re five years too late for me to give a damn.”

The academic establishment’s slow and skeptical response to the ideas of law and economics eventually persuaded Manne that reform of legal education was unlikely to come from within the established order and that it would be necessary to challenge the established order from without. Upon assuming the helm at George Mason, Dean Manne immediately drew to the school faculty members laboring at less-celebrated law schools whom Manne had identified through his economics training seminars for law professors, including several alumni of his Olin Fellows programs. Today the law school is recognized as one of the world’s leading centers of law and economics.

Throughout his career, Manne was an outspoken champion of free markets and liberty. His intellectual heroes and intellectual peers were classical liberal economists like Friedrich Hayek, Ludwig Mises, Armen Alchian and Harold Demsetz, and these scholars deeply influenced his thinking. As economist Donald Boudreax said of Dean Manne, “I think what Henry saw in Alchian – and what Henry’s own admirers saw in Henry – was the reality that each unfailingly understood that competition in human affairs is an intrepid force…”

In his teaching, his academic writing, his frequent op-eds and essays, and his work with organizations like the Cato Institute, the Liberty Fund, the Institute for Humane Studies, and the Mont Pelerin Society, among others, Manne advocated tirelessly for a clearer understanding of the power of markets and competition and the importance of limited government and economically sensible regulation.

After leaving George Mason in 1999, Manne remained an active scholar and commenter on public affairs as a frequent contributor to the Wall Street Journal. He continued to provide novel insights on corporate law, securities law, and the reform of legal education. Following his retirement Manne became a Distinguished Visiting Professor at Ave Maria Law School in Naples, Florida. The Liberty Fund, of Indianapolis, Indiana, recently published The Collected Works of Henry G. Manne in three volumes.

For some, perhaps more than for all of his intellectual accomplishments Manne will be remembered as a generous bon vivant who reveled in the company of family and friends. He was an avid golfer (who never scheduled a conference far from a top-notch golf course), a curious traveler, a student of culture, a passionate eater (especially of ice cream and Peruvian rotisserie chicken from El Pollo Rico restaurant in Arlington, Virginia), and a gregarious debater (who rarely suffered fools gladly). As economist Peter Klein aptly remarked: “He was a charming companion and correspondent — clever, witty, erudite, and a great social and cultural critic, especially of the strange world of academia, where he plied his trade for five decades but always as a slight outsider.”

Scholar, intellectual leader, champion of individual liberty and free markets, and builder of a great law school—Manne’s influence on law and legal education in the Twentieth Century may be unrivaled. Today, the institutions he built and the intellectual movement he led continue to thrive and to draw sustenance from his intellect and imagination.

There will be a memorial service at George Mason University School of Law in Arlington, Virginia on Friday, February 13, at 4:00 pm. In lieu of flowers the family requests that donations be made in his honor to the Law & Economics Center at George Mason University School of Law, 3301 Fairfax Drive, Arlington, VA 22201 or online at http://www.masonlec.org.

The famous epitaph that adorns Sir Christopher Wren’s tomb in St. Paul’s Cathedral – Si monumentum requiris, circumspice (“if you seek his monument, look around you”) – applies equally well to Henry Manne, who passed away on January 17.  Wren left a living memorial to his work in St. Paul’s and the many other churches he designed in the City of London.  Manne’s living memorial consists in the law and economics institutions which he created and nurtured during a long and productive career.

Manne is justly deemed one of the three founders of the law and economics movement, along with Guido Calabresi and the late Ronald Coase.  Manne’s original work on the theory of the firm and the efficiency justifications for insider trading was brilliant and provocative.  Of greatest lasting significance, however, was his seminal role in creating and overseeing institutions designed to propagate law and economics throughout the legal profession – such as the Law and Economics Institutes for Professors, Judges and Economists, and the Center for Law and Economics at Emory University (later moved to George Mason University).  Furthermore, with the expansion of law and economics programs to include foreign participants, law and economics insights are influencing litigation, transactions, and regulatory analysis in many countries.  Manne’s initiative and entrepreneurial spirit were a critical catalyst in helping trigger this transformation.

The one institution that is perhaps most intimately associated with Manne and his philosophy – Manne’s St. Paul’s Cathedral, if you will – is George Mason Law School in Arlington, Virginia.  When Manne became George Mason’s Dean in 1986, he arrived at a fledgling school of no particular distinction, which was overshadowed by major long-established Washington D.C. law schools.  Manne immediately went about overhauling the faculty, bringing in scholars with a strong law and economics orientation, and reinstituting the Center for Law and Economics at Mason.  Within a few years Mason Law became a magnet for first rate young law and economics scholars of a free market bent who found a uniquely collegial atmosphere at Mason.  Mason retained its law and economics orientation under subsequent deans.  Today its faculty is not only a source of pathbreaking scholarship, it is a fount of wisdom that provides innovative (and highly needed) advice to help inform and improve Washington D.C. policy debates.  This would not have been possible without Henry Manne’s academic leadership and foresight.  (Full disclosure – I have been an adjunct professor at George Mason Law School since 1991.)

Finally, I should mention that those of us who write for Truth on the Market (TOTM), not to mention countless other websites that share TOTM’s philosophical orientation, are indebted to Henry Manne for his seminal role in the law and economics movement.  I am sure that I speak for many in offering my heartfelt condolences to Henry’s son, Geoffrey Manne, the driving force behind TOTM.  Geoff, like the visitors to Christopher Wren’s masterwork, we look around us and delight in your father’s accomplishments.

During the 2008 presidential campaign Barack Obama criticized the Bush Administration for “the weakest record of antitrust enforcement of any administration in the last half century” and promised “to reinvigorate antitrust enforcement.”  In particular, he singled out allegedly lax monopolization and merger enforcement as areas needing improvement, and also vowed “aggressive action to curb the growth of international cartels.”

The Obama Administration has now been in office for six years.  Has its antitrust enforcement record been an improvement over the Bush record, more of the same, or is its record worse?  Most importantly, have the Obama Administration’s enforcement initiatives been good or bad for the free market system, and the overall American economy?

On January 29 a Heritage Foundation Conference will address these questions.  You can register to attend this conference in person or watch it live at Heritage’s website.

The conference will feature an all start lineup of top antitrust enforcers and scholars, including four former Justice Department Assistant Attorneys General for Antitrust; a former Federal Trade Commission Chairman; two current Federal Trade Commissioners; five former senior antitrust enforcement officials; a distinguished federal appellate judge famous for his antitrust opinions; and a leading comparative antitrust law expert.  Separate panels will address FTC, Justice Department, and international developments.  Our leadoff speaker will be GWU Law School Professor and former FTC Chairman Bill Kovacic.

As an added bonus, around the time of the conference Heritage will be releasing a new paper by Professor Thom Lambert that analyzes recent Supreme Court jurisprudence and federal antitrust enforcement applying a “limits of antitrust” decision-theoretic framework.  Stay tuned.

On December 11 I published a Heritage Foundation Legal Memorandum on this topic. I concluded that the federal courts have done a fairly good job in harmonizing antitrust with constitutionally-based federalism and First Amendment interests (petitioning, free speech, and religious freedom). Nevertheless, it must be admitted that these “constitutional constraints” somewhat limit the ability of antitrust to promote a procompetitive, pro-efficiency, pro-innovation, pro-consumer welfare agenda. Anticompetitive government action – the most pernicious and long-lasting affront to competition, because it is backed by the coercive power of the state – presents a particularly serious and widespread problem. How can antitrust and other legal principles be applied to further promote economic freedom and combat anticompetitive government action, in a manner consistent with the Constitution?

First, it may be possible to further tweak antitrust to apply a bit more broadly to governmental conduct, without upsetting the constitutional balance.

For instance, in 2013, in Phoebe Putney, the United States Supreme Court commendably held that general grants of corporate powers (such as the power to enter into contracts) to sub-state governmental entities are not in themselves “clear articulations” of a state policy to displace competition. Thus, in that case, a special purpose hospital authority granted general corporate powers by the State of Georgia could not evade federal antitrust scrutiny when it orchestrated a potentially anticompetitive hospital merger. In short, by requiring states to be specific when they authorize regulators to displace competition, Phoebe Putney makes it a bit more difficult to achieve anticompetitive results through routine state governmental processes.

But what about when a subsidiary state entity has been empowered to displace competition? Imposing a greater requirement on states to actively supervise decisions by self-interested state regulatory boards could enhance competition without severely undermining state prerogatives. Specifically, where members of a profession dominate a state-created board that oversees the profession, the risk of self-dealing and consumer harm is particularly high, and therefore the board’s actions should be subject to exacting scrutiny. In its imminent ruling on the Federal Trade Commission’s (FTC) challenge to anticompetitive rules by the dentist-dominated North Carolina Dental Board of Dental Examiners (rules which forestall competition by storefront teeth whitening services), the Supreme Court will have the opportunity to require that states actively supervise the decisions of self-interested regulators as a prerequisite to federal antitrust immunity. At the very least, such a requirement would make states be more cautious before giving a blank check to potentially anticompetitive industry self-regulation. It could also raise the costs of obtaining special government favor, and shed needed light on rent-seekers’ efforts to achieve regulatory capture.

Unfortunately, though, a great deal of anticompetitive governmental activity, both state and federal, is and will remain beyond the bounds of federal antitrust prosecution. What can be done to curb such excesses, given the practical political difficulties in achieving far-reaching pro-competitive legislative and regulatory reforms? My December 11 Heritage Memo highlights a few possibilities rooted in constitutional economic liberties (see also the recent Heritage Foundation special report on economic liberty and the Constitution). One involves putting greater teeth into constitutional equal protection and due process analysis – say, by holding that pure protectionism standing alone does not pass muster as a “rational basis” justification for a facially anticompetitive law. Another approach is to deploy takings law (highlighted in a current challenge to the U.S. Agriculture Department’s raisin cartel) and the negative commerce clause in appropriate circumstances. The utility of these approaches, however, is substantially limited by case law.

Finally, competition advocacy – featuring public statements by competition agencies that describe the anticompetitive effects and welfare harm stemming from specific government regulations or proposed laws – remains a potentially fruitful means for highlighting the costs of anticompetitive government action and building a case for reform. As I have previously explained, the FTC has an established track record of competition advocacy filings, and the International Competition Network is encouraging the utilization of competition advocacy around the world. By shedding light on the specific baleful effects of government actions that undermine normal competitive processes, competition advocacy may over time help build a political case for reform that transcends the inherent limitations of antitrust and constitutional litigation.