Yesterday, a stellar constellation of regulatory economists—including three economists affiliated with the Progressive Policy Institute—submitted an amicus brief to the D.C. Circuit Court of Appeals, demonstrating that the Federal Communications Commission’s 2015 Open Internet Order failed a cost-benefit test.
How could this happen?
When proposing a remedy to address a perceived market failure, a regulatory agency may fail a cost-benefit test in three ways. First, the agency can overstate the benefits of its proposed remedy. Second, the agency can understate the costs of its proposed remedy.
Third, and a bit less obvious, the agency can ignore a less-restrictive alternative that would generate the same purported benefits but at a lower cost, thereby rendering its proposed remedy inefficient. For example, if the net benefits of a proposed remedy are $10 million per year, but a less-restrictive alternative generates net benefits of $15 million, then the proposal fails a cost-benefit test, even though the proposed remedy would have generated benefits in excess of costs.
The FCC committed all three errors in its Open Internet Order (OIO). As Chris Cillizza of the Post says in his recurring award for Worst Week in Washington, “Congrats, or something.”
The amicus brief explains in great detail how the FCC committed the first two errors.
In terms of overstating benefits, the OIO fails to consider that the profitability of (and thus the incentive to engage in) discriminatory conduct vis-à-vis content providers depends on whether the Internet service provider (ISP) could generate higher profits from the promoted (affiliated) products to cover the lost margins from departing broadband customers. The anticompetitive behavior feared by the Commission has simply not come to pass, which explains why the OIO is hard-pressed to cite any recent examples of consumer harm. A very limited number of service disruptions or degradations have actually occurred—among literally millions of opportunities for such behavior—and many of these have been dealt with expeditiously through private negotiations.
And in terms of understating costs, the OIO ignores or dismisses the economic evidence of the impact of Title II on investment in the late 1990s and early 2000s, and thereby dismisses the very real threat to ISP investment. Rather than ground its findings on economic scholarship, the OIO relies instead on the casual empiricism of an advocacy group that operates outside of the constraints of academic reputations, to reach the extraordinary conclusion that telco investment was “55 percent higher under the period of Title II’s application” than in the later period. These results hinge on which years are included in the Title II era: If one includes the years 1999 and 2000 as part of the pre-2005 period, then removal of Title II appears to have caused a decline in Bell investment. But those early years are associated with the dot.com boom and long-haul fiber glut, and it is difficult to remove Bell investments in backbone infrastructure from the capex figures.
The amicus brief spends less time on the third element of cost-benefit, largely due to a 4000-word limitation. So more on that here.
The OIO casually dismisses a less-restrictive alternative for handling paid priority disputes—namely, case-by-case enforcement—as being “too cumbersome” to enforce, despite the fact that: (1) the 2015 OIO itself embraces case-by-case review to address interconnection disputes and other conduct such as zero-rating; (2) the 2010 Open Internet Order embraced case-by-case to address paid priority disputes; (3) the FCC’s May 2014 Notice of Proposed Rulemaking would have permitted ISPs and content providers to engage in “individualized bargaining” subject to ex post review; and (4) the FCC relies upon case-by-case to adjudicate discrimination complaints against traditional video distributors. Why is this conduct different from all other conduct?
Recognizing this disparate treatment of paid priority and interconnection, the OIO argues that case-by-case enforcement “is an appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve some very large corporations. . . .” (paragraph 29). But interconnection disputes can involve small content providers as well. And if the concern is an asymmetry in litigation resources, the case-by-case regime can level the playing field by shifting evidentiary burdens and providing interim relief.
Indeed, the 2010 Open Internet Order considered and rejected a “flat ban” on paid priority in favor of a case-by-case approach; embracing the ban in 2015 presumably pushed the FCC towards its dreaded reclassification decision. This dramatic policy reversal begs the question: What happened in the intervening five years that caused the Commission to lose confidence in case-by-case adjudication for paid priority? The OIO does not give an answer.
It would seem that an overt and pronounced shift in regulatory policy would necessitate a clear and confident finding that such an alternative policy approach toward the Internet would produce better results—more innovation, more investment, and more consumer benefits. When viewed with an economic lens, the OIO fails a basic cost-benefit analysis.