Home > Internet > Curious and Curiouser: As Economists’ Anti-Common Carriage (#NetNeutrality)/FCC Case Crumbles, Industry Advocacy Group Lawyers Threaten Armageddon

Curious and Curiouser: As Economists’ Anti-Common Carriage (#NetNeutrality)/FCC Case Crumbles, Industry Advocacy Group Lawyers Threaten Armageddon

Just over a week ago, the International Journal of Communication published an article that I co-authored with Jeff Pooley, “A Curious Tale of Economics and Common Carriage (Net Neutrality) at the FCC”—a reply to another IJOC article published in late March by Gerald Faulhaber, Hal Singer and Augustus Urschel that had claimed that economics was “curiously absent” at the Obama-era FCC.

In that paper, the authors hold up the FCC’s 2015 landmark ruling to reclassify broadband internet access services as common carriers (the historical bedrock principle that informs what most people now refer to as ‘net neutrality’) as exhibit A in support of their claim. They also point to a raft of other decisions over the past half-decade that addressed high levels of concentration in key segments of the mobile wireless, broadband internet access and TV industries as further evidence of the supposed triumph of populist politics over economic reason at the Obama-era FCC. Finally, they claim that the FCC’s refusal to file cost benefit analyses to justify any of these actions clinches their case about the “curious absence of economics at the FCC”.

The claims became a big deal after the Trump Administration’s new FCC chair Ajit Pai repeatedly cited them to justify his bid to roll back the common carrier rules and to create a new Office of Economics and Data (see here, here and here). Pundits, think tanks and telcos, not just in the US but in Canada and the European Union too, have pointed to the “curious absence” charge in their support of Pai’s rush to remake the regulatory landscape in the image that they have wanted all along: no common carrier rules and regulations premised on the assumption that communication markets are fiercely competitive.

As we show in our reply, however, the authors’ claims about the “curious absence of economics” are baseless. Our review of the FCC’s public docket for the Open Internet Order, several blockbuster mergers and acquisitions, roundtables, seminars, workshops, and so on shows that the public record of the Commission’s work is stuffed full with the contributions of economists—including those of Faulhaber and Singer. A better interpretation, we argue, is that, having lost many hot-ticket regulatory items in recent years, the authors have thrown up a dubious pretext for what amounts to a regulatory do-over in which they hope to score big under the Trump regime.

Not only does the paper’s main claim fall apart upon inspection, its undisclosed origins as a commissioned piece of policy advocacy runs afoul of scholarly publishing norms and ethics. Indeed, the paper is a model of information laundering, whereby paid policy advocacy prepared for an industry-friendly group—in this case, CALinnovates—is put on the public record in two separate FCC proceedings (see here and here), then recycled as an original article in a prestigious, peer-reviewed scholarly journal with no acknowledgement of these origins, and finally recycled back into the policy process on several occasions by Pai to justify his sprint to reverse many of the signature accomplishments of his predecessor—all with the telcos, consultants, industry-friendly think tanks such as the American Enterprise Institute, etc., cheering him on from the sidelines, both within the US and beyond.

Legal Threats

We had plainly struck a nerve. After a draft of our reply was shared with the article’s authors in late May, they started to backfill their missing disclosures (compare the lack of any disclosure in the original March publication, the terse one-liner that followed in mid-April after we called them out on Twitter, and a fuller but still wholly inadequate disclosure in June). And instead of dealing with any of our substantive criticisms about the complete lack of any evidence to support their main claim about the alleged “curious absence of economics” at the FCC, the authors along with the executive director and PR rep for the industry-friendly advocacy outfit, CALinnovates, wrote weak replies that protested loudly and threw a lot of mud, but did absolutely nothing to shore up their allegations. You can see those replies here, here and here.

As our article was being prepared for publication, CALinnovates also lawyered up and sent a barrage of letters to the editors of the International Journal of Communication—and its host, the University of Southern California. The legal threats—explicit and implied—ramped up in each letter (see here, here, here, and here).

In the first missive, the group’s attorney charged that the “academic portion” of our paper—those pages that constitute the bulk of our article and that challenge the original article’s sidelined-economists storyline and which provide copious details refuting that claim—is merely a “vehicle to serve incorrect and potentially libelous messaging to the public” about the group. He asked the journal to disclose our funding for the article (we have none), and to remove the CALinnovates discussion altogether.

The second letter, sent a week later, detailed “concerns” about our reply and warned that its “potentially libelous rebuttal,” the lawyer wrote, “seeks to tarnish the reputation of CALinnovates,” an organization whose “only role in this imbroglio was the funding of the [original] paper.” Quoting liberally from the journal’s code of ethics, the letter lays out 13 charges. “Winseck and Pooley,” he wrote, “have weaponized their rebuttal for the purposes of their own mischievous political goals.” The letter accuses us of serving “corporate interests,” which we—so said the attorney—failed to disclose.

Another week, another letter, this one from a second firm (“litigation counsel to CALinnovates”) and delivered not just to the editor but to the general counsel of USC, where the journal is hosted. It is, this attorney wrote, “extraordinarily surprising and deeply disappointing” that USC “would even consider publishing what appears to be a bias-motivated hit piece”. The letter concludes by warning USC that it would “expose itself to significant liability” by publishing our reply.

To its credit, the journal stood its ground, asking us to furnish documentation on just those errors of fact flagged by the lawyers. We replied with a point-by-point accounting. “Neither of us,” we wrote, “has ever received a single cent of funding for this reply or for work whatsoever from any parties.” Bluster aside, the innuendo and legal threats had the opposite effect, strengthening our resolve to publish the reply. Sponsored surrogacy like the “Curious Absence” paper needs ummasking now, before the Pai-led FCC recasts the evermore internet-centric communications universe in an industry-serving mold. If Pai succeeds, it will be hard to go back—hard, that is, to get the regulatory toothpaste back in the tube. At that point, exposing the industry scholar-lobbyist network’s campaign would be (merely) academic.

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