I was General Counsel of the Federal Communications Commission when it sought the preemption of state laws in Tennessee and North Carolina that limited the ability of municipalities to promote broadband. We failed in that effort, but the case laid out the key facts. The FCC found that the provision of municipal broadband in Chattanooga, Tennessee, led to lower rates, increased investment, and improved service from an incumbent broadband provider. Similarly, in Wilson, North Carolina, when faced with a municipal broadband entrant, an incumbent cable company held rates flat even as it raised rates in nearby geographic areas by up to 40 percent for comparable offerings. By the FCC’s calculation, new competition saved Wilson’s approximately 50,000 residents more than $1 million per year. This is a familiar story, known to the members of CLIC but not given sufficient attention generally. The competition story needs to be told: We can expect people with only one choice to pay monopoly prices, and people with only two choices to pay the higher prices typically charged by duopolies. People with three or more choices typically pay less. Clearly, people who can barely afford to pay a competitive price, say, low-income Americans, are particularly vulnerable to artificially high prices.

The House of Representatives passed a bipartisan bill, the Broadband DATA Act, aimed at improving the Federal Communications Commission’s data collection process for broadband mapping. Since the bill has already passed the Senate, but will return due to procedural reasons, we will likely see the Senate pass this bill soon and then send it to the President’s desk for a signature. The bill reflects bipartisan agreement that we need more accurate broadband maps, and Public Knowledge supports legislation to fix inaccurate mapping. However, this legislation does not go far enough in requiring Internet service providers to report granular data. If Congress requires ISPs to provide better and more transparent data, many of the broadband mapping issues will diminish. The government currently does not have the information it needs regarding broadband services, but ISPs do. This bill is a missed opportunity by Congress to pass much stronger legislation for consumers.

A federal appeals court grappled March 5 with whether average consumers know the difference between the ads and the organic search results that appear on Google. Arguing before the US Court of Appeals for the 2nd Circuit, 1-800 Contacts — which is seeking to reverse a Federal Trade Commission decision that its trademark agreements violated antitrust law — contended that they don’t understand. Federal law allows a company to protect its trademark if use of the trademarked term could confuse consumers. The online contact lens retailer argued that consumers would be confused if they search for “1-800 Contacts” on Google or Bing but instead see ads for other companies. But two of the three judges on the panel weren’t so sure. “Even an old guy who is old enough to remember Kodak and film knows the first four things you get on Google, which are labeled ‘ad,’ you should disregard and move down to the next thing,” said Circuit Judge Peter W. Hall, a George W. Bush appointee. Circuit Judge Gerard Lynch was also skeptical. “Is that the standard, everyone has to know that? Twenty years from now when our kids are up there and doing this stuff, we’re not even going to be having this conversation,” he said. FTC attorney Imad Dean Abyad told the appeals court that 1-800 Contacts’ agreements with rivals were the same as an offline agreement to divide up market. “1-800 is claiming that digital [ad] space as its own exclusive territory and has agreed with its rivals that they would not advertise in that territory,” he said. Abyad also said that 1-800 Contacts’ agreements were overly broad because they barred rivals from using the company’s name in any kind of ad, even a comparative one. Courts have consistently found that comparative ads aren’t trademark violations. “This is not about protecting trademarks,” he said. “This is about 1-800 protecting its much higher price.”