Gene Kimmelman

In the last two decades, the digital marketplace has transformed the majority of the economy and the daily lives of billions of people worldwide. This transformation has delivered great gains to consumers and unlocked whole new technological opportunities for society to thrive. However, amidst these gains, palpable consumer harms and anti-competitive behaviors have also become clearer, and the bottom-up innovative dynamism that ushered forth the digital marketplace is increasingly under threat.

The rapid pace of digital technology means companies can move rapidly to advantage themselves by exploiting consumers and eliminating potential competition. Congress has traditionally created new expert agencies to oversee new technology platforms. Whether the Interstate Commerce Commission (railroads), Federal Communications Commission (broadcasting), Federal Aviation Administration (air transport), Consumer Financial Protection Bureau (finance), or any other of the alphabet agencies, the precedent is clear: new technologies require specialized oversight.

The digital marketplace is wide-reaching, complicated and self-reinforcing. The systems developed to oversee an earlier time are burdened by industrial era statutes and decades of precedent that render them insufficient for the digital present. In the absence of federal oversight, the dominant digital companies have made their own rules and imposed them on consumers and the market. Just as industrial capitalism operated—and thrived—under public interest obligations, so should internet capitalism be grounded in public interest expectations.

A report issued by the United Kingdom’s competition authority (CMA) provides interim findings that both Google and Facebook have a virtual lock on key elements of and inputs to the digital advertising market.

Based on growing signs that platforms are tipping toward monopoly in key market functions, it is very likely that antitrust is not enough of a solution without targeted regulation that opens markets to new competition. Perhaps the most important change we need is competition-expanding regulations that address the  problems antitrust cannot solve.  A new expert regulator equipped by Congress with the tools to promote entry and expansion in these markets could actually expand competition to benefit consumers, entrepreneurship, and innovation.

The goal of antitrust is to preserve competition and free flowing markets, but some industries have no competition to preserve, and instead need regulation to help competition flourish.

We have tried to rein in the power of telecommunications, media and cable giants for more than 30 years. In these important industries, strong antitrust has only worked when paired with equally strong pro-competition market-opening regulations. Antitrust alone cannot expand the diversity of media and content ownership that relies upon internet distribution. Antitrust alone cannot protect the integrity of individual speech rights that are essential to democratic discourse. And antitrust alone cannot foster innovation and entrepreneurship.

[Commentary] Recently, US District Judge Richard Leon raised the question of whether an arbitration condition would be enough to address the potential harms from the AT&T-Time Warner merger. This proposal would create a mechanism where both sides in a fee dispute concerning Time Warner programming would present a rate to a third-party arbitrator, who would pick the one that was more reasonable. AT&T-Time Warner would not be permitted to take channels off the air and cut the distributor off from its content during the arbitration process.

As a new administration takes the reins in Washington, we at Public Knowledge have launched a renewed effort to promote freedom of expression on affordable communications platforms for all. We urge everyone to join this fight for the fundamentals of a truly democratic society, from the right to vote to the right to use all communications tools without fear of retaliation or interference from government or dominant corporate giants. The Trump Administration may jeopardize the Federal Communications Commission's ability to make networks more open, affordable, and available to all of us, and may risk the agency’s capability to maintain consumer rights and protections on the internet.

Please join us in the ongoing fight for fairness in the digital age. Whether it is consumers' pocketbooks or their fundamental right to speak without interference and participate in our democracy, we need your support and active commitment during a time of political change. Now, more than ever before, is a time to engage and provide the energy necessary to make a fair and just society that works for all of us.

The set-top box fight may be shaping up to be a prime example of how policymakers who don't want to anger their constituents can protect corporate interests without ever having to officially come out against consumers. You just delay a regulatory process so that the clock runs out and the Federal Communications Commission doesn't have the opportunity to vote to explode the set-top box monopoly.

This summer, and even now, we've seen the elements of this strategy play out. After FCC Chairman Tom Wheeler proposed rules to eliminate the set-top box monopoly and hundreds of thousands of consumers cheered the effort, House Representatives passed a spending bill prohibiting the FCC from completing new rules in 2016. Soon after, the Senate Appropriations Committee did something similar. Of course, they never outright said that they're against competition or more choices for consumers; they just label the issue as "very complicated," or they “have concerns,” or just say whatever they can think of to justify telling the FCC to take more time and not end this consumer rip-off in 2016. So here we are, either two weeks away from the FCC finally moving forward to break the cable box monopoly, or another delay. Stay tuned to see what happens, or dive right in and help us peel back the disinformation and stealth by demanding FCC action and no Congressional interference!