Jessica's great, but I'd prefer AOC! Better still may Brandon Johnson.
Brain Death at the FTC and FCC
Net neutrality and Amazon show why Congress needs to kill agencies as well as creating new ones.
By Holman W. Jenkins, Jr., WSJ
Oct. 6, 2023 6:11 pm ET
Lina Khan, in her famous Yale Law School paper of half a decade ago, sketched an argument by which Amazon is bad, never mind what existing antitrust law and precedent say. Now that she’s head of Joe Biden’s Federal Trade Commission, all the fervor is gone. Her lawsuit last week was a bureaucratically listless and perfunctory invocation of existing law and precedent against the online retailer, eliciting not a modicum of enthusiasm even from the usual antitrust cheerleaders in the media.
Amazon controls a third of online sales and a single-digit share of all retail sales. Its business is smaller than Walmart’s. How does it become a monopoly? Only through the tired trick of inventing a new category, online superstore, which it can be accused of monopolizing. Yet as not a single critic failed to point out, consumers don’t buy thousands of goods at a time. They buy one or a few. Because consumers have no trouble comparing prices at non-superstore retailers, even those specializing in a single product line, Amazon can’t usually get away with charging even a penny more than competing online retailers do.
Seeing how badly its argument was flying, the FTC then let out that Amazon had once used software to test if price hikes would stick. What business doesn’t? The need to test if price hikes will stick again reveals only that Amazon is no monopolist.
Between the lines what the lawsuit really lacked was the slightest indication that it was offered in good faith. It wasn’t offered, say, merely to supply a Biden campaign anti-big-tech talking point while the precocious Ms. Khan increasingly focuses on acclimatizing herself to the perks and fawning attention that come to a Washington agency head.
The universe obviously is trying to get our attention. The same week saw her counterpart at the Federal Communications Commission, Jessica Rosenworcel, commit a similar act of null interventionism, restarting a pointless fight over net neutrality.
In its Obama heyday net neutrality was a rulemaking in search of a justification and even more so now that ubiquitous high-speed broadband has eliminated whatever incentive might have existed for internet service providers to slow traffic selectively or attempt (mostly mythically) to charge popular websites for a “fast lane.”
But listen closely: Washington activist cliques are practically wetting themselves not because Ms. Rosenworcel’s proposal would serve any useful purpose. They just want to have an expensive and highly abstruse fight, the seventh in 25 years by one expert count, over the legal limits of FCC internet regulation.
Maybe this kind of bureaucratic zombieism is all we can expect from our elites as they await the 2024 election, with its turning-over-the-chessboard-again potential. Or maybe it signals something deeper about century-old agencies that have lost any public-spirited purpose and exist now only to create conflict to keep themselves and their very large retinue of camp followers in rent money.
How sad for Ms. Rosenworcel, 52, and especially Ms. Khan, 34. They’ve reached the likely pinnacles of their Washington careers yet find themselves little more than gilded manifestations of what economists call the negative marginal product employee—whatever their good intentions, the world is a poorer place when they do their jobs.
This problem is systematic because Congress doesn’t sunset agencies created for one era even though they are likely to be obsolete 109 or 89 years later, to describe the FTC and FCC, respectively.
Recall the feckless Trump administration lawsuit against the AT&T-Time Warner merger, a product of unpatriotic bureaucrats at the Justice Department’s antitrust division exercising their power to harass a large U.S. business without any reason to believe doing so served the public interest (as a U.S. judge quickly found and an appeals court affirmed).
Recall the visible wilting of Obama FCC chief Tom Wheeler under the matter-of-fact questioning of a CNBC reporter at a Barcelona telecom trade fair in 2015. Days before, Mr. Wheeler had allowed hacky Obama White House aides to overrule his own carefully crafted, consensual approach to net neutrality because Democrats wanted an issue to rile up the young in the 2016 election.
The sequel in that case is also telling. To their credit, Trump FCC Chairman Ajit Pai and the courts undid the damage as quickly as Mr. Wheeler did it. Internet investment soon revived. We got the faster fixed and wireless speeds that Ms. Rosenworcel so head-scratchingly now wants to jeopardize all over again. The moral is one this column has preached for 20 years. Those who come to Washington to take over our tired, old agencies often do their best work in protecting America from our tired, old agencies.
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Appeared in the October 7, 2023, print edition as 'Brain Death at the FTC and FCC'.
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