Philadelphia Reflections

Net Neutrality and Vertical Integration

Late Hour Calls

My fancy new cell phone has an annoying habit of ringing a bell every time an e-mail arrives, which is a little puzzling when it rings in the middle of the night. The email program displays time of arrival, so after a while, I took the trouble to see who was emailing me at 4 AM. It seems to be spam and other commercial programs, but it is also an occasional letter with a large attachment, which had been sent several hours earlier. At this, a light began to go on in my head.

I had been told the internet measures the size of files and puts big ones at the end of the queue. That seemed to explain the occasionally delayed transmission of ultra-large emails at times of heavy internet traffic. And it brings up the issue of net neutrality. If the traffic in large files grows enough, it might eventually clog the wires and bring things to a halt. The internet providers would have to spend money to build additional capacity, and it only seems fair to charge big users more for the costs they have created. That would seem a reasonable technological argument for allowing the networks to impose differential pricing, and for overturning the idea of net neutrality.

Comcast and NBC

Unfortunately, it might or might not be a sincere argument for resisting net neutrality, since there are major commercial issues at stake as well. For example, Comcast is trying to purchase NBC; its motives are clarified by remembering that a few years ago it tried to purchase Walt Disney. In both cases, a common carrier would be acquiring a "content provider", and thus acquiring a competitive advantage over competitive internet network providers who lack a captive source of content. A strong temptation would exist to slant the internet charges to the disadvantage of other competitors, thus providing a motive to get involved in insincere arguments about net neutrality. What we seem to have here is a familiar antitrust legal doctrine of "vertical integration". For years, vertical integration was prohibited, but the U.S. Supreme Court reversed that prohibition a few years ago, in the case of State Oil v. Kahn. Lewis van Dusen and I had been in the audience of the State Oil arguments, because of our interest in the implications of vertical integration for the medical profession (doctors versus hospitals, for example).

Curtis Publishing

Although the example of Curtis Publishing was not introduced into the arguments of State Oil versus Kahn, it was much in my mind and might well have been used effectively to demonstrate the vulnerability of any corporation which attempts to become vertically integrated by purchasing its suppliers and/or distributors. Curtis Publishing, a few blocks from my office, had been a successful magazine publisher, so successful that it had enough profits to buy Canadian forests to use for paper pulp in its magazines. The outcome was the bankruptcy of the profitable magazine company when the paper pulp business fell on hard times. No antitrust action to prohibit vertical integration was necessary; the dismal fate of Curtis and similar integrators stood as an effective restraint on anyone else who was tempted to get into the vertical integration business. That may be a little hard to follow, and it took the Supreme Court many years to get to that point. But the fact remains that vertical integration is no longer illegal because it is effectively restrained by recognition of its dangers.

So, if we are getting into the insincere argument business, it is time for someone to put his arm around the shoulders of Comcast. Let's whisper that avoidance of the net neutrality dispute is kindly advice, offered solely for Comcast's own good.

Comcast Center

And, having gone this far in poking into other people's business, there might be some value in giving some advice to the antitrust lawyers. This sort of case can take years, even decades, to evolve through the legal system. And while its resolution will be phrased in legal terms, I'm not so sure that's sincere, either. It takes me back to the IBM case, where one of the junior lawyers was courting one of my daughters. This young fellow sat for months in front of a microphone at a deposition, doing nothing but read documents into the record. Although he was handsomely paid, the lawyer finally got so sick of the boring futility of dictating a mountain of transcript no one would ever read, into a microphone in an empty room, that he quit. And in the opinion of observers on the courthouse steps, the case was finally determined by the Judge's decision that the patent infringement business was trivial compared with the fact that IBM was mass-producing the greatest innovation of the century -- and the patent-infringement people were just getting in the road.

That may or may not have been the case, but it raises the question of whether antitrust law is wisely based when it considers, not the welfare of competitors, but the strength and vitality of competition itself. What might thus be considered paramount, and perhaps occasionally is so, is the economic welfare of the nation. At present, the newspapers regard this issue as a fight between Netflix and Comcast, and so are now free to devote news attention to other matters. I don't think so. I believe it directly challenges the operation of the Law, which contends that vertical integration eventually takes care of itself. To me, that is only true if circumstances give us enough time to wait it out. In the long run, as Maynard Keynes quipped, we are all dead.

Originally published: Tuesday, January 11, 2011; most-recently modified: Friday, May 24, 2019