Showing archive for: “Rule of Reason”
How the FCC Will Lose on Net Neutrality
Today’s oral argument in the D.C Circuit over the FCC’s Net Neutrality rules suggests that the case — Verizon v. FCC — is likely to turn on whether the Order impermissibly imposes common carrier regulation on broadband ISPs. If so, the FCC will lose, no matter what the court thinks of the Commission’s sharply contested ... How the FCC Will Lose on Net Neutrality
A guide to today’s net neutrality oral arguments
We’ll be delving into today’s oral arguments at our live-streamed TechFreedom/ICLE event at 12:30 EDT — and tweeting on the #NetNeutrality hashtag. But here are a few thoughts to help guide the frantic tea-leaf reading everyone will doubtless be engaged in after (and probably even during) the arguments: While most commentators have focused on ancillary ... A guide to today’s net neutrality oral arguments
Marina Lao on the FTC’s Section 5 Unfair Methods of Competition Authority
FTC Commissioner Josh Wright’s recent issuance of a proposed policy statement on Section 5 of the FTC Act has reignited the debate on the appropriate scope of the agency’s authority to prosecute “unfair methods of competition” as standalone Section 5 violations. While the Supreme Court has held, consistent with clear congressional intent, that the FTC’s ... Marina Lao on the FTC’s Section 5 Unfair Methods of Competition Authority
Joe Sims on First Principles of Section 5 Authority
I find that discussions on antitrust policy, if they are not to devolve into simple recitations of preferred industrial policy, are most focused when grounded in first principles and, frequently, a little history. So a few words on both with respect to Section 5, starting with the history. The FTC Act, in addition to being ... Joe Sims on First Principles of Section 5 Authority
Why I think the Apple e-books antitrust decision will (or at least should) be overturned
On July 10 a federal judge ruled that Apple violated antitrust law by conspiring to raise prices of e-books when it negotiated deals with five major publishers. I’ve written on the case and the issues involved in it several times, including here, here, here and here. The most recent of these was titled, “Why I ... Why I think the Apple e-books antitrust decision will (or at least should) be overturned
Bringing the Error Cost Framework to the Agency: Commissioner Wright’s Proposed Policy Statement on Section 5 Unfair Methods of Competition Enforcement
FTC Commissioner Wright issued today his Policy Statement on enforcement of Section 5 of the FTC Act against Unfair Methods of Competition (UMC)—the one he promised in April. Wright introduced the Statement in an important policy speech this morning before the Executive Committee Meeting of the New York State Bar Association’s Antitrust Section. Both the Statement ... Bringing the Error Cost Framework to the Agency: Commissioner Wright’s Proposed Policy Statement on Section 5 Unfair Methods of Competition Enforcement
Final Reply to Steve Salop
Dan’s final post responding to Steve’s latest post. Other posts in the series: Dan, Steve, Dan, Steve, Dan, and Thom. It seems that it’s time to wind down and that a further tit-for-tat might not be productive, so I’ll close with a final comment on the first point that Steve makes—one that may undergird much of our disagreement. Steve asserts that “the $71 ... Final Reply to Steve Salop
Dan, Come Over to the Rule of Reason
Steve’s next, perhaps final, installment, responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: Steve, Dan, Steve, Dan, and Thom. My invitation comes with several hopefully final observations. (1) Dan says, “There’s neither input foreclose nor output foreclosure if a rival can neutralize a loyalty discount without pricing unprofitably.” My examples showed several reasons ... Dan, Come Over to the Rule of Reason
Wright is Right and Price-Cost Safe Harbors are Wrong: The Raising Rivals’ Cost Paradigm, Loyalty Discounts and Exclusive Dealing
Guest post by Steve Salop, responding to Dan’s post and Thom’s post on the appropriate liability rule for loyalty discounts. I want to clarify some of the key issues in Commissioner Wright’s analysis of Exclusive Dealing and Loyalty Discounts as part of the raising rivals’ costs (“RRC”) paradigm. I never thought that I would have to defend Wright against ... Wright is Right and Price-Cost Safe Harbors are Wrong: The Raising Rivals’ Cost Paradigm, Loyalty Discounts and Exclusive Dealing
Why I think the government will have a tough time winning the Apple e-books antitrust case
Trial begins today in the Southern District of New York in United States v. Apple (the Apple e-books case), which I discussed previously here. Along with co-author Will Rinehart, I also contributed an essay to a discussion of the case in Concurrences (alongside contributions from Jon Jacobson and Mark Powell, among others). Much of my ... Why I think the government will have a tough time winning the Apple e-books antitrust case
Some Thoughts on the Spring Meeting: Bummed About RPM, Happy About the FTC’s Future
I’ve spent the last few days in DC at the ABA Antitrust Section’s Spring Meeting. The Spring Meeting is the extravaganza of the year for antitrust lawyers, bringing together leading antitrust practitioners, enforcers, and academics for in-depth discussions about developments in the law. It’s really a terrific event. I was honored this year to have ... Some Thoughts on the Spring Meeting: Bummed About RPM, Happy About the FTC’s Future
Hey Hey! Ho Ho! Partial De Facto Exclusive Dealing Claims Have Got to Go!
Today, a group of eighteen scholars, of which I am one, filed an amicus brief encouraging the Supreme Court to review a Court of Appeals decision involving loyalty rebates. The U.S. Court of Appeals for the Third Circuit recently upheld an antitrust judgment based on a defendant’s loyalty rebates even though the rebates resulted in above-cost prices for the defendant’s products ... Hey Hey! Ho Ho! Partial De Facto Exclusive Dealing Claims Have Got to Go!
