April 01, 2020 Columns

Editor’s Column

By William R. Drexel

This issue of Infrastructure features something old and something new, both thanks to the digital disruption impacting our economy. The something old is the latest appellate rejection of the FCC’s twenty-year effort to update the media cross-ownership rules to comport with the dramatic changes that technology has brought to the media landscape. The something new is the initiative of U.S. antitrust enforcement agencies to investigate large, successful tech companies.

The authors of our first article, Chris Binnig, Chris Comstock and Elaine Lu, describe the fourth failure of the FCC to defend appellate review of its revisions to media cross-ownership rules in accordance with the mandate of the 1996 Federal Telecommunications Act. Congress requires the FCC to review periodically the media ownership rules to determine whether they remain “necessary in the public interest as a result of competition.” The authors first trace the history of the same Third Circuit appellate panel’s repeated rejection of the FCC’s media ownership rules before analyzing the FCC’s most recent regulatory reform effort. In similar fashion, the same panel vacates the most recent FCC media ownership rules due to the FCC‘s failure to adequately assess the impact of the new rules on gender and racial diversity. The FCC sought but was denied rehearing in banc. While review by the Supreme Court is possible, it appears likely the FCC will have a fifth opportunity to revisit its media ownership rules.

In our second article in this issue, Jim Herbison provides an overview of new investigations involving some of our country’s largest tech firms that provide important components of the nation’s information age electronic infrastructure. Jim highlights the rapid growth of these large tech firms (Facebook, Apple, Amazon, and Google), each of which have a market capitalization approaching, if not exceeding, a trillion dollars. While big is not necessarily bad from an antitrust perspective, the impact of their acquisitions and business practices that have already raised competitive concerns here and abroad is part of the regulatory and congressional scrutiny. Jim notes the potential avenues for inquiry under current law as affected by recent Supreme Court decisions, and he discusses the prospect for legislative change to address the impact of companies like these on consumers, competition, and our economy. The outcome of these investigations and the competition policy changes or clarifications that result undoubtedly will impact our national infrastructure for years to come.

We hope you enjoy this issue. If you have suggested topics for future issues or would like to submit an article for consideration, please contact me at billdrex@yahoo.com.


By William R. Drexel