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Posts Tagged ‘Antitrust Laws’

Last year, I explained the theoretical argument against antitrust laws, pointing out that monopoly power generally exists only when government intervenes.

Now it’s time to consider a real-world example from the private sector and ask whether we should be concerned about monopoly power. ATT and Time Warner have announced a merger, a step that has triggered lots of hand-wringing by politicians.

But as I explain in this interview for a British news outlet, the expanded company won’t have any power or ability to coerce me, particularly so long as politicians don’t create any “barriers to entry” to hinder the entry of new competitors to the market.

The Skype connection became garbled for a few seconds at the end of the interview, but I think my point about the misuse of antitrust laws was reasonably clear.

Suffice to say that allowing politicians and bureaucrats to have any authority over mergers is a recipe for abuse and corruption as companies try to use antitrust laws to sabotage their competitors.

Let’s see what some experts have written on this topic. And we’ll start by looking at the big picture. Writing for Bloomberg, Professor Tyler Cowen points out that antitrust laws often don’t make sense.

Reading through old cases does not induce great faith in the contemporary usefulness of 19th- and 20th-century antitrust laws. …For instance, the famous suits against Standard Oil, Kodak and Alcoa wouldn’t make sense in today’s globalized economy. …In 1998, the U.S. Justice Department initiated an antitrust suit against Microsoft, partly on the grounds that the company sought to extend its market power to browsers. Few people today think the company’s Internet Explorer browser failed because the government restored competitiveness; Firefox and Google built better software. Yet prosecutors spent years distracting the talent of one of America’s most successful companies, as they had with IBM earlier in a 13-year case dropped in 1982.

And he points out how monopoly power often is created by government intervention and regulation.

…there is a strong case that growing concentration in the hospital market has raised health-care costs. Some major metropolitan areas have only a small number of hospital chains. Part of the problem is that highly regulated environments encourage consolidation and larger firms to deal with compliance costs… Cable television is another area where anti-monopoly remedies might be appropriate, but keep in mind that cable is typically a government-created local monopoly.

Now let’s look at he specific case of the ATT/Time Warner merger.

Holman Jenkins of the Wall Street Journal is not impressed by those who want government interference. And he shares my disdain for the way influence peddlers in Washington are the big beneficiaries of antitrust laws.

…this week’s proposed merger of AT&T and Time Warner is eliciting opposition that is ferocious, idiotic and almost contentless. …tens of thousands of people in Washington make their living by extracting rents from companies going about their business and trying to adapt to besetting waves of technological and market change. …Unwisely, Silicon Valley mostly sat out 2014’s epic battle over the Obama administration’s desire to impose antique utility regulation on broadband. Its argument: Who cares? Technology will swamp the regulators with broadband ubiquity anyway, so why pick a fight…the Valley’s naïfs may discover they have underestimated the power of bureaucratic perversity and political indifference to things that would actually serve the public good. One way to look at the inevitable torture AT&T is about to undergo at the hands of Washington’s regulators: It will be the first test of the libertarian-optimist theory that technology is more powerful than a bloody-minded bureaucrat.

Last but not least, Paula Dwyer’s Bloomberg column takes a dim view of those who want the heavy foot of government to second guess the invisible hand of the market.

Donald Trump and Bernie Sanders, wearing their populist stripes, want regulators to block it outright. …the politicians’ concerns are overblown. …Antitrust, of course, is meant to protect consumers from the higher prices and reduced choices that result when a company has market power. But a merged AT&T and Time Warner are in different industries, and their merger wouldn’t affect ownership concentration. Nor would it result in the loss of a competitor from the market.

And she points out the dismal history of antitrust enforcement.

…think back to 1974 to the original AT&T antitrust case, which also began from a fear of vertical integration. …For sure, AT&T had a monopoly, but it was created and sanctioned by the federal government. All that was needed was a government deregulation order and a green light that it wouldn’t block competitors. Instead, the U.S. sued to break up Ma Bell. …If the U.S. had simply deregulated plain old telephone service, any one of these technologies could have forced AT&T to adjust or disappear. The U.S.’s 1998 antitrust case against Microsoft had much the same fighting-the-last-war problem. …while the Justice Department was fixating on browsers and operating systems, the personal computer was losing market share to laptops, which lost out to tablets and which are now being overtaken by smartphones. While Microsoft was bogged down with the Windows case, which it eventually settled in 2001 on favorable terms to the company, a new generation of tech giants — Google, Facebook, Amazon — took flight. The lesson is that a technology or media conglomerate’s dominance these days is almost certainly transitory.

In other words, let the merger proceed. It may be a wise business decision. Or it may be a foolish business decision.

But that outcome should be determined by the preferences of consumers in a competitive marketplace.

The heavy foot of government shouldn’t play a role. Especially since, as noted by this cartoon, antitrust laws are so broad and vague that companies can get in legal trouble for charging more than their competitors, less than their competitors, and the same as their competitors.

P.S. If this information hasn’t been sufficient to make you skeptical about antitrust laws, then also keep in mind that the European Commission’s tax shakedown of Apple is based on antitrust policy rather than tax policy.

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The libertarian message of limited government generally is not warmly received in Washington because politicians, bureaucrats, cronyists, lobbyists, contractors, and other insiders profit from the status quo.

The D.C. area is now the richest region of the country, filled with folks who gladly support higher taxes because they realize that “They may send an additional 5 percent of their income to the IRS, but their income will be 20 percent higher because of all the money sloshing around Washington.”

But what about folks in the real world? Do the folks from “outside the beltway” believe in smaller government?

As a general rule, I think ordinary people are sympathetic to limited government, particularly if you have a chance to dispassionately explain how nations with good policy routinely out-perform countries with bad policy.

But there are issues that present challenges because a non-trivial share of the population thinks the free-market approach is too radical or unrealistic. To cite a few examples that I’ve written about in the past:

Today, I want to add to that list. When discussing the merits of government intervention, there are people who generally believe in markets, but nonetheless argue that we need antitrust laws to protect consumers from avaricious companies.

I agree that businesses are looking to maximize profits, but I disagree with the notion that this puts consumers in peril. In a free-market economy, businesses can get money only by providing goods and services that are valued by consumers.

Indeed, consumers are only in danger when government puts its thumb on the scale with handouts, subsidies, restrictions, bailouts, regulations, licensing, mandates, and other forms of intervention. Because when government rigs the market and hinders competition, that’s when consumers can get exploited.

Moreover, to the extent we have monopolies in America, it’s because of government. Just think of the Postal Service. Or Social Security. Or the air traffic control system. Those are all things that should be handled by the private sector, but they exist because of government coercion.

Now that we’ve reviewed the theoretical argument, let’s look at how antitrust laws are grossly inconsistent in practice. Professor Mark Perry of the American Enterprise Institute pointed out that it’s possible for companies to get in trouble with antitrust bureaucrats regardless of the prices they charge.

If your company’s prices are too close to the same as your competitors’ prices, government bureaucrats will come after you and charge you with price-fixing and collusion as 35 auto parts manufacturers found out recently… If your company’s prices are too high, government bureaucrats will come after you and charge you with price-gouging, as five airlines found out recently… And finally, if your company’s prices are too low, government bureaucrats will come after you and charge you with predatory pricing or selling products below cost, as the grocery chain Meijer found out recently after opening stores in Wisconsin.

Now put yourself in the position of a pricing manager at a company. What are you supposed to do if bureaucrats can come after you no matter what price you charge?!? This makes no sense.

And it sparked my memory. Back when I was a college student in the 1970s and first learning about free markets, I remember coming across a short film, The Incredible Bread Machine, that argued in favor of economic liberty.

It was accompanied by a poem that told the story of an entrepreneur named Tom Smith who invented a technology to produce cheap bread for the masses. That was good news, but then the price of bread rose after an increase in business taxation and that led to accusations that the entrepreneur was exploiting his “market power.”

And that’s when the antitrust bureaucrats got involved. Here’s the relevant section of the poem, and you’ll notice that 1970s satire is eerily similar to today’s antitrust reality.

So, antitrust now took a hand.
Of course, it was appalled
At what it found was going on.
The “bread trust,” it was called.

Now this was getting serious.
So Smith felt that he must
Have a friendly interview
With the men in antitrust.
So, hat in hand, he went to them.
They’d surely been misled;
No rule of law had he defied.
But then their lawyer said:

The rule of law, in complex times,
Has proved itself deficient.
We much prefer the rule of men!
It’s vastly more efficient.
Now, let me state the present rules.

The lawyer then went on,
These very simpIe guidelines
You can rely upon:
You’re gouging on your prices if
You charge more than the rest.
But it’s unfair competition
If you think you can charge less.

A second point that we would make
To help avoid confusion:
Don’t try to charge the same amount:
That would be collusion!
You must compete. But not too much,
For if you do, you see,
Then the market would be yours
And that’s monopoly!”

Price too high? Or price too low?
Now, which charge did they make?
Well, they weren’t loath to charging both
With Public Good at stake!

In fact, they went one better
They charged “monopoly!”
No muss, no fuss, oh woe is us,
Egad, they charged all three!

Here’s the 1975 film version of the Incredible Bread Machine. The poem begins shortly after 30:00, though I suggest watching the whole video for its historical value, as well as the commentary at the end by Milton Friedman.

P.S. On another topic, I can’t resist sharing this man-bites-dog passage from a recent editorial in the New York Times.

…the next government will have to do more to make the country more productive, and that includes…cutting pensions, streamlining regulations, privatizing state-owned businesses.

No, this isn’t a joke. The NYT actually endorsed pro-market reforms to shrink the size and scope of government.

That’s the good news.

The bad news is that the editorial was about Greece rather than United States.

But at least there’s hope that the editors are becoming more rational, particularly when you also consider that the New York Times recently published columns showing the superiority of funded pension systems over tax-and-transfer programs like Social Security and revealing that feminist-supported government intervention in labor markets hurts intended beneficiaries.

To be sure, a few good pieces hardly offset the NYT‘s long track record of economic illiteracy, but a journey of a thousand miles begins with a first step.

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Having just done a blog post where I explained that government should stay neutral in fights between labor and management in the private sector, let’s look at a real-world example to understand why.

The millionaire owners and millionaire players from the National Football League are locked in a labor dispute. This is somewhat understandable since there are ten of millions of dollars of profit available and both sides obviously have an interest in getting the biggest slice of that income.

I don’t care who wins, but government has no role in this squabble (or in discussions about college football championships).

In a free society, people have the right to sign contracts. But freedom also means they have a right to not sign contracts. Indeed, these principle of self-ownership and control over property are key defining characteristic of liberty.

That’s why it is disappointing that the players are trying to get the government to tilt the playing field in their direction. Led by big-name stars (for PR value), the players are going to court in hopes of getting the government to use misguided and coercive antitrust laws to hamstring the negotiating position of owners.

The market should determine the outcome of this dispute, however, not the sordid world of government and politics. The players do not have a right to jobs with NFL teams, just as NFL teams do not have a right to force people into playing football.

Yes, it is a “restraint on trade” for NFL owners to not sign contracts, but it is also a “restraint of trade” for top athletes to choose not to play. But this simply illustrates why antitrust laws are so foolish and so inconsistent with the freedom of contract.

Here’s a blurb from the Associated Press report.

…quarterbacks Tom Brady, Peyton Manning and Drew Brees were among 10 players who sued the NFL in federal court Friday, accusing the league of conspiracy and anticompetitive practices that date back years. Their lawsuit asked the court to prevent a lockout. …They filed a request for an injunction that would keep the NFL and the teams from engaging in a lockout. Invoking the Sherman Act, a federal antitrust statute from 1890 that limits monopolies and restrictions on commerce, the players said they were entitled to triple the amount of any damages they’ve incurred. …The players accused the 32 NFL teams of conspiring to deny their ability to market their services “through a patently unlawful group boycott and price-fixing arrangement or, in the alternative, a unilaterally imposed set of anticompetitive restrictions on player movement, free agency and competitive market freedom.” The collective bargaining agreement with the league was expiring Friday.

One caveat. The title of this post says there is no role for government, but that’s not completely true. The courts have a role as neutral arbiters if there is a dispute about whether one side or the other has failed to live up to the terms of a voluntary contract. Though I suppose my caveat has a caveat since the two sides also could pick a private arbitration service to be the neutral judge of any dispute.

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