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The Potential Value of Antitrust

[ 89 ] March 17, 2014 |

I was recently dismissive of the Democratic Party’s record on antitrust, and in doing so I was unfair; the Obama administration’s record is actually quite good, and a major improvement from its predecessor.  Perhaps the most important antitrust action was stopping the merger of AT&T and T-Mobile, which appears to have been a major win for consumers:

A rash of consumer-friendliness has broken out across the mobile data industry. Over the last year, the four major carriers — AT&T, Verizon, Sprint and T-Mobile — have cut prices and offered greater flexibility in how they sell their voice, text and broadband services. The industry could be on the verge of an all-out price war.

Who is responsible for this blessed state of affairs?

Credit must go to the United States government.

In 2011, officials at the Federal Communications Commission and the Justice Department moved to block AT&T’s proposed $39 billion acquisition of T-Mobile. That kept the struggling, fourth-place carrier alive as an independent firm. And it led John J. Legere, T-Mobile’s flamboyant, foul-mouthed chief executive, to brand his company the “uncarrier,” and inaugurate a string of measures that have turned every accepted practice in the mobile business on its head.

T-Mobile’s resurgence, and the effect it has had on the larger market for cellular service, may hold important lessons for regulators who will soon sit in judgment over the latest enormous broadband proposal, Comcast’s deal to gobble up Time Warner Cable.

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  1. Colin Day says:

    Somewhat off topic, but speaking of antitrust, could the FTC prevent mergers with Catholic hospitals if part of the intent was to prohibit abortions in the merged hospitals (under restraint of trade)?

    • Sly says:

      Doubtful. The ability of the FTC to intervene in non-profit mergers is complex (they’ve actually been stepping up their efforts in the last few years), but its largely contingent on state law. If a state legislature expressly concedes that a given non-profit may engage in monopolistic practices then there’s little that the FTC can do.

      And this doesn’t get into the political dimensions of such an act, as well as the free exercise implications, which only compound the complexity.

  2. Dilan Esper says:

    I have no idea about the Obama Administration’s overall record on Antitrust, but I will definitely agree that if you are going to beat your differences between the parties drum, this is a major difference. It didn’t used to be true, but these days, Republican administrations don’t do serious antitrust enforcement and Democratic ones do at least some of it. Clinton, for instance, went after Microsoft.

    I do know, however, that with respect to the biggest area where big business has way too much power, finance, Obama hasn’t done anything to shrink the big players. Dodd-Frank is fine as far as it goes, and definitely counts as a difference between the parties, but it doesn’t get at the real problems, which require that large financial institutions be outlawed or nationalized.

    • ThrottleJockey says:

      Dodd-Frank is fine as far as it goes, and definitely counts as a difference between the parties, but it doesn’t get at the real problems, which require that large financial institutions be outlawed or nationalized.

      In what alternate universe is that a reality? And if DC attempts that what prevents Wall Street from packing up and moving to London? Besides I don’t know that a nationalized banking system would be much of an improvement anyways.

      • Anonymous says:

        I am not quite as dismissive of Dodd-Frank as Dilan, but your arguments are just silly.
        What keeps Wall Street in the US is the fact that dollar is the global reserve system, and that has much more to do with the fact the US has by far the world’s largest armed forces than with anything the US government does for or against bankers.
        As for the second point, one does not need to nationalize banks to reduce the size of the biggest bankers. Raising their capital ratios will do quite nicely, thank you.

        • Anonymous says:

          Ooops, I apologize, I totally misread both yours and Dilan’s posts. Yes, outlawing major financial institutions is both an absolutely a pie in the sky position and probably the only thing that can cause the dollar to lose its status as reserve currency.

          • Gregor Sansa says:

            I know that personal banking is only very tangentially related to finance. But postal banking, with all the same services as a credit union, would be good for the deficit, slightly positive for local jobs, good for the working poor, and would be a direct attack on conservative ideology. And it’s something Obama can make a solid start on without any help from Congress.

            • Dilan Esper says:

              +1

              Especially since the Post Office needs to expand beyond the obsolete service of delivering letters in an age of e-mail.

              • Bullshit. What, delivering your Amazon packages isn’t enough for you?

                I heartily endorse postal banking, but the notion that without it the USPS is ‘obsolete’ is so bogus as to be laughable.

              • Opie Elvis says:

                That is a comment that is based on either absolute ignorance of the issues at hand or simply thrown out without much thought.
                Mail is still essential to a significant part of the American public. The postal banking issue ties in with part of that since postal management is doing its best to make first class mail irrelevant, it is also putting a large part of the public at risk for having to pay for the privilege of receiving or paying bills.
                The postal network serves as essential infrastructure. Mail volumes are dropping, less as a result of electronic diversion than because of the Great Recession – at least that’s been the conclusion of the PRC in several cases that examined the question.

                • Emily Litella says:

                  What’s all this fuss I hear about our post office being taken over by the Peoples’ Republic of China?

            • Opie Elvis says:

              No, the President cannot make a solid start on postal banking. The President has no power to insist the Postal Service do anything and current postal management has been dismissive of banking.
              The OIG report posited that the Postal Service could skate around current restrictions in Title 39 because of the presence of money orders but there are several questions about the way banking could be introduced as a market-dominant product, the category in which money orders now fall.
              In order to execute the strategy in the OIG report money orders would have to be shifted to competitive products and that would require approval from the PRC, a process that would generate a good deal of attention and would likely end up in litigation give the players.
              There is way more to this than what most people are seeing. It could be a very good idea but it comes with some serious cautions.
              http://www.savethepostoffice.com/under-same-management-some-reservations-about-postal-banking

              The other problem is that the Administration has been absolutely horrible on postal issues.

              • DrS says:

                The President has no power to insist the Postal Service do anything and current postal management has been dismissive of banking.

                Genuinely curious, but why would the President not have this power? The Postal Service is part of the executive branch that he heads, no?

                • AR says:

                  No, it was semi-privatized in 1971 and the President no longer directly controls it.

                • DrS says:

                  Thanks, AR, didn’t know that.

                • Opie Elvis says:

                  The President appoints the Board of Governors who can only be removed for cause. He is required to balance appointments between parties (some of his appointments have been really bad).
                  The BOG selects the Postmaster General who then sits on the Board as well. The BOG directs the activities and strategic direction within the constraints of Title 39 and subject to some oversight by the Postal Regulatory Commission.

                • Gregor Sansa says:

                  Interesting. I didn’t know that. But apparently there are 5 vacancies on the board of governors; so Democrats could indeed change the balance of power there, without Republican cooperation, if they were prepared to (re)use the “nuclear option” for this issue.

                  I know; that just makes it “astronomically improbable” instead of “utterly impossible”. Still, I’ll take my fantasies where I can get them.

                • Gregor Sansa says:

                  Oops, MMM made my point better than I did, just below.

              • Mixed Metaphor Man says:

                the President appoints 9 of the 11 person board of governors (currently there are 5 vacancies and all appointed members were appointed by President GW Bush) and all of the 5 PRC members (3 appointed by President Obama) subject to confirmation by the Senate.

                President Obama did just nominate Vicki Kennedy (Ted’s widow) to the Board. He had two nominees approved, one of whom resigned (current vacancy) and one of whom had his appointment expire (current vacancy). One of his nominees dropped out without explanation and 2 or 3 I am not sure what happened to, probably not approved by the Senate — they definitely had committee hearings. Also, it looks like the 2006 act requires that at least 4 members of the BoG have run a company with at least 50,000 employees

                So while the President can’t insist, he can appoint people that would push Postal Banking, but the current BoG being completely Republican, Presidential appointees or appointed by the Republican dominated BoG would be temporary if the President nominated more and these were approved.

                • Opie Elvis says:

                  Not quite correct but close. There are currently several vacancies due to problems with Senate confirmation although the Administration has been slow in naming appointees.
                  Appointments are apportioned by party, a Republican president can’t appoint all Republicans.
                  President Obama has made some really bad selections including James C. Miller III who has been a vocal advocate for postal privatization.

                • Mixed Metaphor Man says:

                  sure, but it is not impossible that there could be a nominal Republican or two in favor of the Postal Bank

                • Opie Elvis says:

                  Not impossible but the President would have to want to appoint them. He has appointed Republicans to the PRC when the numbers would have let him appoint a Democrat.
                  Vicki Kennedy is an improvement, at least she’s a real liberal, but it’s not clear she has any grasp or experience with the postal network. The other recent Democratic appointee is an academic who has written about privatizing public goods.
                  The Administration has taken horrible positions on five day delivery and associated issues. They haven’t remotely acknowledged the attempts to break the postal unions, they were actually o.k. with language in the Senate bill that would weight arbitrator’s decisions against labor.
                  Postal banking is potentially a very good idea but those who think it’s a panacea or something that can be laid on a rotten foundation are not being realistic. Say you got five new members of the BOG who had positive views, not just of postal banking of the the public service mindset necessary to make this about something other than revenue and fee extraction. That’s a big if but if you’ve gotten that far now you have to turn postal management 180 degrees and after that you have to get the proposal through the PRC, and likely Congress given the current situation.
                  That’s a lot of heavy lifting considering those of us who work on these issues can’t get the Administration or more than a few a Democrats to care about the loss of 300,000 jobs and the destruction of useful infrastructure.

                  I really do wish you were right but this issue does seem to highlight the fact that progressives have a lot of work to do.

          • Dilan Esper says:

            To be clear, raising capital requirements is one of a number of ways to ban too big to fail.

      • Dilan Esper says:

        After 2008, busting the big banks would have been widely popular. And Obama didnt need Congress to do it. (Indeed, Bernanke could have done it too.)

        This isn’t an issue where the left is unpopular. This is an issue where money defeats the desires of the electorate.

        • Sly says:

          There’s a distinct difference between breaking up a monopoly and nationalizing several non-monopolistic firms. Even receivership, though technically a state takeover of a private firm, is dissimilar from nationalization in several important respects.

          As for breaking up the banks, the problem is not so much their level of consolidation – the banking sector is competitive under the HHI rating system despite recent consolidations – but the inability of the existing regulatory regime to keep up with and handle all the new kinds of financialization that have developed over the past few decades. The problems inherent within the shadow banking sector would exist whether or not the government broke up firms like JP Morgan or Goldman Sachs into smaller companies.

          • Brien Jackson says:

            The size of banks really has nothing to do with the health/stability of the industry (as a political economy issue, on the other hand…), and there’s every bit as legitimate an argument that it was fracturing the banks that created the atmosphere that led to the crisis.

            • Nick Danger - Authoritarian Fellatist says:

              there’s every bit as legitimate an argument that it was fracturing the banks that created the atmosphere that led to the crisis.

              This I’d like to hear. It runs completely counter to so many of the identified issues with the entire FIRE sector.

              • DrS says:

                Heh…there’s that nymfail again.

              • Sly says:

                Not sure if this is where Brien was heading, but the basic premise if this kind of argument is that there was to much of the wrong kind of competition, not a lack of competition.

                A useful analogy is credit cards. Credit cards are a fairly simple kind of financial product, so there’s not much that firms can be do in terms of competing to deliver a better product to consumers. What they can do, however, is compete via innovating new ways to screw the customer without them knowing or being able to do anything about it. Double-cycle billing, universal default, etc.

                The finance sector, specifically investment banks, have been operating in the same manner over the past few decades. Instead of finding better ways to allocate capital, they’ve found “creative” ways to displace risk on to other parties and/or extract rents from existing capital investments.

                The way regulation generally works, from statute to implementation, is that a given entity within a commercial sector starts doing something really bad because it makes lots of money, other entities start doing the same because they don’t want to lose market share, the regulators go to the legislature because they can’t do anything about it and want the statutes updated, and the legislature ends up getting around to updating the law years later when the commercial sector has already moved on to some other shoddy way of doing business. Credit card companies started using universal default clauses in the 90s (late on your cable TV bill? The interest rate on your discover card just went from 3% to 20%), but Congress only got around to banning the practice in 2009, and by then the card issuers had already switched from universal default to summary account cancellation.

                This is very much endemic to all financial products, where product innovation is limited but pricing innovation is not. A better way to regulate such an economic sector would be for the statute to spell out what a company can do, instead of what it can’t, so that regulators don’t have to keep up with whatever harebrained scheme is currently in vogue.

                • DrS says:

                  Ahh, so the argument is fewer companies to regulate, easier to regulate?

                  I dunno, maybe in theory but we’re not seeing this empirically.

                  Agree all the percents that we’d be better off with regulations that set what financial entities could do. Re-separating commercial and investment banking should be just the start.

                  I am curious by what Brien meant by “fracturing the banks”. Banking and other finance had been consolidating for decades before the bust.

                • ThrottleJockey says:

                  Innovation can’t be left up to Congress & regulators–we almost certainly would never get it. Its better to just end the revolving door of regulators becoming bankers/lobbyists.

                  As far as too big to fail goes, I have no idea what Brien is talking about. TBTF isn’t about a lack of competition, its about avoiding single failure points in the system. Despite the vigorous competition we have, TBTF is about reducing system risk.

                • Sly says:

                  Not entirely.

                  Lots of firms participated in the Mortgage Security / CDO scheme. Lots of firms doing this made systemic risk more likely and happen more quickly, because there is constant pressure to compete. Relatively few firms participated in the Default Swap scheme for CDOs (basically AIG and some hedge funds), but they had lots and lots of counterparties that would all be exposed if those few firms went under. That’s what made these firms too big to fail; they would bring everyone else down with them. The more firms that were dependent on them, the worse the problem became.

            • DrDick says:

              Oddly, we never had this kind of problem before the emergence of the megabanks. Financial institutions of the size and scope of JP Morgan or Citibank constitute systemic risks with the capacity to take down the global economy (as they did). Too big to fail is to big to exist.

  3. Aaron B. says:

    Well, if the administration approves the Comcast-Time Warner merger it’ll be a major black mark against them. That, or regulate them like a utility. It may be true that ISPs are a natural monopoly but that’s no excuse for squeezing your customers for every penny.

    • ThrottleJockey says:

      I haven’t seen a great anti-trust case advanced to prevent the merger. The combined entity would have 30% market share. That’s nowhere near monopolistic. I have heard rumblings that Comcast & Verizon had some non-compete contracts and that needs a hard look at, but 30% market share in a market with lots of competitors could be well defended in court.

      • efgoldman says:

        I haven’t seen a great anti-trust case advanced to prevent the merger. The combined entity would have 30% market share. That’s nowhere near monopolistic.

        30% of the national market, sure. But look at the coverage maps of some pretty big metro areas.
        http://consumerist.com/2014/03/07/heres-what-lack-of-broadband-competition-looks-like-in-map-form/

      • Anonymous says:

        Where did that number come from? According to the telecom trade association, Comcast and Verizon combine for 45% currently.

        And in any case, this industry competes in local markets, most of which are already monopolized or duopolozied.

      • Opie Elvis says:

        This is also an issue of monopsony since the kind power inherent in that sort of coverage affects content providers quite a bit.

        • DrDick says:

          Market concentration like we have in telecommunications is economically destructive on many levels. We need much more aggressive enforcement of antitrust, not merely blocking future mergers, but breaking up many existing companies. Along with big telecoms and the big banks, we need to go after all the other highly concentrated markets (oil, software, etc.)

          • ThrottleJockey says:

            Whether or not telecomm is too concentrated is actually a complex question. Switching to bundled service saved me $600 overnight last year & it didn’t even require a contract. While CATV has shot up, the costs Hollywood charges for programming has shot up even more.

            In 2006, TV sports giant ESPN spent $3.5 billion on programming for its flagship channel. This year, the channel’s content costs have mushroomed to $5.2 billion — a nearly 50% jump from five years ago, according to consulting firm SNL Kagan.

            Programming expenses for Time Warner Inc.’s TNT channel have soared 55% since 2006 to $1.1 billion this year, propelled by sports rights fees for NBA and NCAA basketball as well as a lineup of original dramas including “The Closer” and “Falling Skies.” History Channel, which previously concentrated on history documentaries, has seen its programming costs increase by more than 50% to $283.5 million this year from 2006. It is now a top-five cable channel with gritty reality shows including “Pawn Stars” and “American Pickers.”

            From 1992–2011, the programming industry’s collective operating profit margin increased from 24 percent to 41 percent. During this period, the industry’s profits increased 10-fold in real value, to $20 billion at the end of 2011.

            Meanwhile both landline and wireless telephony inflation has been quite good. Wireless is down 9% while landline has only increased 1.1% since 2008. So I don’t see an obvious case here that concentration is too high, at least not as far as pricing is concerned.

  4. Opie Elvis says:

    T-Mobile/AT&T was something of a no brainer and it didn’t make things good just not more horrible. David Cay Johnston has written a good deal about this industry -March 11 piece in Newsweek that seemed to be pay walled. We continue to have some of the poorer and most expensive service in the world.
    I’m not sure the two cited articles are a total recommendation for the Administration’s antitrust policies. In some areas, for example the package delivery market which is a very large part of e-commerce, the Administration has been asleep at the wheel. It’s approach to the Postal Service is likely to create greater unregulated monopoly conditions in that sector.
    Some of the provisions reported to be in TPP would reinforce and strengthen intellectual property monopolies.
    I’m, not sure, based on this post that one can say the Administration has been not bad or even good on antitrust. The topic warrants a whole lot closer look and much more discussion before any sort of pronouncement can be made.

  5. cpinva says:

    on the plus side, the proposed Comcast-Time Warner deal could well help solve prof. campos’ law school problem, by providing employment to thousands of currently un/under employed attorneys.

    • Sarcastro The Munificient says:

      Oh, I think the merger would result in fewer front-line phone support positions, not more.

      • Agreed!
        The larger the monopoly company, the less it cares about “Customer Service.”

        “You have reached Engulf and Devour-cast. Please hold until one of our extra-valued associates can help you with your issue. But who are we kidding? Where else ya gonna go? So, hang on, SUCKERS!!!
        BWAH-HA-HAAAAAAAAAAAAAAAAAAAAA!”

        Cue easy-listening jazz for the next 4 hours – until you either fall asleep, or hang-up.

        Oh, and don’t press “O” – ’cause that’ll cause the system to hang-up for you!

  6. Kalil says:

    It is worth noting that the AT&T/T-Mobile merger was looking very likely to win approval, until one of AT&T’s lawyers accidentally made an internal document publicly available that admitted that their primary public justification for the merger – a desire to attain T-Mobile’s tower network to improve their coverage – was an outright fabrication.

    Perhaps the Obama administration would still have denied the merger if it hadn’t become a major public scandal, but I’m not too sure…

    • Kurzleg says:

      Isn’t that claim something that’s easily checked and verified?

      • Kalil says:

        Which claim? I linked to a source for the leaked document story. As far as how the FCC would have ruled in the absence of that scandal, I’m not sure how exactly to peek into that alternate future, but I remember that up until that accidental document dump, the general attitude among my friends in the information technology field was a glum certainty that it was going forward, to the detriment of everyone. Perhaps that was just generational pessimism, although the stock market (a totally reliable indicator!) seemed to agree with them.

        • Mixed Metaphor Man says:

          I think Kurzleg was talking about AT&T’s claim of improved coverage being a fabrication. That should have been easy to check

          • Kurzleg says:

            Right. AT&T can assert all they want, but if they can’t prove it in an empirical sense, then I would hope the government would dismiss the claim as part of their case for merger. Or am I expecting too much from the government when it comes to vetting AT&T’s merger application?

            • Kalil says:

              From what I remember, concerns had been raised by watchdog groups about the veracity of AT&T’s claims.

              To be specific: AT&T was claiming that they wanted to purchase T-Mobile to expand its GSM coverage by absorbing T-Mobile’s towers into their network, but the documents made clear that AT&T already was moving to do that more cheaply on its own than the merger would have allowed. However, that’s actually pretty hard to independently verify without a great deal of knowledge of the innards of the industry – you need to have in depth knowledge of where AT&T’s weakness are, where T-Mobile’s strengths are, what the costs of expansion are, and so forth, much of which is proprietary to varying degrees. Certainly, without AT&T being accidentally open about it, there was no way the government could have known that AT&T was already moving to expand their network, independently of the merger.

              I didn’t get the feeling, based, again, on the reactions of industry watchdogs, that the FCC was terribly interested in probing deeply into the deal, but when it all spilled out into the open they had little choice.

  7. The Kenosha Kid says:

    The Potential Value of Antitrust .. Legislation? Political Action?

    Sorry, I just can’t stand this grammatically. It sounds like advertising-speak: “The Importance of Online in Your Media Strategy.”

    • joe from Lowell says:

      I read Scott’s use of “Anti-Trust” to refer to 1) the section of the Justice Department that enforces the anti-trust statutes, and 2) the enforcement itself.

  8. Slightly off topic, but for all the bitching about the ACA not being a single payer miracle pony, one of that bill’s worst aspects was the fact that it left the anti-trust exemption intact. The insurance companies fought like hell against it and won, and nobody ever talks about it.

    • Nick Danger - Third Eye says:

      Let’s be painfully clear on this.

      This was all the Democrats’ doing. Not one vote for ACA come from a Republican of either house.

      Just a reminder when you start complaining to look within your own party and don’t try to blame others.

      • DrDick says:

        Reading comprehension, you doesn’t has it. Charlie Sweatpants’ statement is that the ACA failed to change a pre-existing problem. The GOP had a lot to do with creating that problem.

      • Brad Nailer says:

        As if Republicans’ rejection of the bill had anything to do with anti-trust or anything more substantial than their simple desire to derail a potentially popular program supported by Barack Obama. Have you ever heard one word from any of them about the anti-trust exemption or any other specific aspect of the program, beyond their silly mantras about “jobs” and other meaningless catch-phrases?

  9. TribalistMeathead says:

    The fact that the American Airlines-US Airways merger went through makes me think we’re not that far from Obama’s predecessor, and even his administration would’ve had trouble arguing why the US only needs one major GSM carrier.

    • dollared says:

      +1. It was stupid, stupid stupid. And clearly prices have risen in their served markets, just like Delta is just stealing from the former Northwest customers.

  10. Rarely Posts says:

    I agree that Antitrust is one of the areas of real difference between the parties, but it’s also an example of how liberals have fair reason to be (somewhat) disappointed in the Democratic party and institutional actors.*

    The Republican party has done a lot of encourage, elevate, and reward those lawyers and people who were willing to go the distance to destroy Antitrust (most notably, Bork). Through judicial appointments, they’ve made it very difficult to hold out any hope for a resurgence in Antitrust law.

    Democrats are, obviously, better on these issues. But, it doesn’t seem as though they’ve done much to try to encourage, elevate, or reward advocates of Antitrust law. It’s hard to point to many Democratic appointees to the Circuit Courts or Supreme Court who might help resuscitate Antitrust law. And, it’s also hard to imagine that being a major advocate for strong Antitrust enforcement is a way to get ahead with many Democratic party establishment members or get choice appointments. That’s despite the fact that, electorally, it would probably be popular with voters (to the extent they cared about the issue at all). It also is pretty clearly good policy.

    Obviously, one should still pull the lever for the Democrat over the Republican when voting, but it is an example of where the Democrats could probably try to be better than they are. But, I’m not an expert on how ideological liberals on Antitrust could convince the Democratic party’s institutional actors to use their political power to try to do accomplish this.

    * It’s my general impression that Obama is somewhat better on this than Clinton. And, that’s consistent with a broader point. Obama has been much better than Clinton from a liberal perspective, almost across the board.

  11. Bitter Scribe says:

    I just want them to bring back the T-Mobile girl.

  12. howard says:

    i only have a moment, but in the first 33 comments, a critical one was left out: the decline in anti-trust enforcement is yet another reason to despise robert bork, who provided the intellectual justification, such as it was, for backing off.

  13. Jeremy says:

    On the topic of antitrust (although not on the topic of DOJ enforcement thereof), a lawsuit has now been filed directly challenging the NCAA’s amateurism rules for current players:
    http://espn.go.com/college-sports/story/_/id/10620388/anti-trust-claim-filed-jeffrey-kessler-challenges-ncaa-amateur-model
    Filing in the Third Circuit is wise, because there is precedent in that Circuit that it is an antitrust violation for universities to agree to offer the same amount of financial aid to incoming students. U.S. v. Brown University, 5 F.rd 658 (3d Cir. 1993). By that logic, the NCAA’s rules are a violation as well.

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