近時のアメリカ合衆国における情報サービス規制をめぐる議論について・再論 ―ケーブル事業者であるComcast Corporationによる差別的なネットワーク運営実務の終了を命じたFCCの命令を取り消したアメリカ合衆国連邦控訴裁判所の判決を中心に―

On August 20,2008, FCC made a decision to order Comcast Co叩oration to end its prior discriminatory network management practices, and affiumed its authority to protect the Internet under Title I of the Communications Act of 1934. In this order, FCC states that it has discretion to choose between adjudication and rulemaking, and can exercise its ancillary jurisdiction over a broadband Intemet access service provider's unreasonable network management practices, even though it is not a common carrier under Title II of the Act. However, on April 6,2010, United States Court of Appeals for the District of Columbia Circuit vacated the order, on the ground that FCC had failed to tie its assertion of ancillary authority over Comcast's Intemet service to any 'statutorily mandated responsibility}. FCC has tried to reclassify broadband Internet access service as telecoumunications service, which has proved to be quite difficult. Goveument authorities should make the additional framework that is necessary to preserve the vibrant and open architecture of the Internet, and foster its progress in the future

インターネットの自由及び開放性の維持を目的とする2010年のFCC の判断について(1)

On December 23, 2010, FCC released its Open Internet Order 2010to preserve the Internet as an open platform for innovation,investment,job creation,economic growth,competition,and free expression. In this Order, FCC adopts high-level rules embodying four core principles: transparency,no blocking,no unreasonable discrimination,and reasonable network management. However, there are many problems remain to solve. FCC’s statutory authority to adopt the Order is not clear. The rules are vague, and FCC has to decide on a case-by-case basis and/or proceed incrementally. In addition, this Order provides less protection for mobile broadband than it does for fixed broadband. This Order may help to prevent the harms of open Internet violations by broadband Internet access providers. Nevertheless,the influence of companies that construct their platform in the Application Layer is not considered well. Government authorities should make the additional framework that is necessary to preserve the vibrant and open architecture of the Internet, and foster its progress in the future

欧州委員会による「デジタル時代のための競争政策最終報告書 」 (2019 年) (2・完)

On April 4, 2019, the European Commission published an expert report titled “Competition Policy for the digital era, Final report.” At the request of the EU Commissioner for competition Margrethe Vestag er, three outside scholars prepared the report to explore how EU competition policy should evolve in the digital age. They analyze the three main characteristics of the digital economy ( i.e. (a) extreme returns to scale, (b) network externalities, and (c) the role of data) and identify strong economies of scope in the digital economy, which foster the development of platforms and/or ecosystems, giving incumbents a strong competitive advantage that makes them “very difficult to dislodge.” The scholars also identify strong incentives for dominant digital companies to engage in anti competitive behavior. They conclude that the existing basic framework of EU competition law is sufficiently flexible and reliable to protect competition, and serve consumers in t he digital age. However, the scholars emphasize that it requires some adjustments to its various established concepts and assessment tools. With the rise of big technology companies like Google, Apple, Facebook, and Amazon (GAFA), and/or Baidu, Alibaba, and Tencent (BAT), governmental authorities all over the world are now facing the similar problems as mentioned above. They should cooperate in studying the issues and thereby design the additional regulatory framework that is necessary in the digital world

インターネットの自由回復を目的とする2017年のFCCの判断

On January 4, 2018, the Federal Communications Commission (FCC) released its Restoring Internet Freedom Order of 2017. The FCC announced that the purpose of this Order is to promote broadband deployment in rural areas, increase infrastructure investment throughout the United States, foster innovation on the Internet, and eliminate the digital divide. This Order abolished virtually all the protections for "network neutrality" introduced by the FCC’s Open Internet Order of 2015. The new Order repealed (1) three bright-line rules that prohibit blocking, throttling and paid-prioritization, (2) a general Internet conduct standard, and (3) the transparency rule. The FCC asserts that the new "improved" transparency rule together with competition among Broadband Internet Access Service (BIAS) providers and the antitrust and consumer protection laws makes these rules unnecessary, and the new Order lowers the cost of achieving these targets. In fact, as expressed in the letter to the ranking members of Congress from Internet pioneers and other leaders on December 11, 2017, the abolishment of these rules will bring an imminent threat to the Internet by killing the "virtuous cycle" that drives innovation and investment on the Internet--both at the edges of the network, as well as in the network itself. The new Order is not sufficient to prevent the harm from open Internet violations by broadband providers. In addition, the influence of companies that construct their platforms in the Application Layer is not well considered. These companies have constructed their "walled garden" on the public Internet and taken full advantage of information and knowledge that they can exploit. This trend is accelerating with the technological developments in big data, Artificial Intelligence (AI), and the Internet of Things (IoT). Government authorities should design the additional framework that is necessary to retrieve and preserve the vibrant and open architecture of the Internet, recover and maintain the free flow of information and knowledge, and foster the future progress of the Internet

2018 年キャリフォーニア州インターネット消費者保護及びネット中立性法 (1)

On January 4, 2018, the Federal Communications Commission (FCC) released its Restoring Internet Freedom Order of 2017. The FCC announced that the purpose of this Order is to promote broadband deployment in rural areas, increase infrastructure investment throughout the United States, foster innovation on the Internet, and eliminate the digital divide. This Order abolished virtually all the protections for "network neutrality" introduced by the FCC’s Open Internet Order of 2015. The new Order repealed (1) three bright-line rules that prohibit blocking, throttling and paid-prioritization, (2) a general Internet conduct standard, and (3) the transparency rule. The FCC asserts that the new "improved" transparency rule together with competition among Broadband Internet Access Service (BIAS) providers and the antitrust and consumer protection laws makes these rules unnecessary, and the new Order lowers the cost of achieving these targets. In fact, as expressed in the letter to the ranking members of Congress from Internet pioneers and other leaders on December 11, 2017, the abolishment of these rules will bring an imminent threat to the Internet by killing the "virtuous cycle" that drives innovation and investment on the Internet--both at the edges of the network, as well as in the network itself. The new Order is not sufficient to prevent the harm from open Internet violations by broadband providers. In addition, the influence of companies that construct their platforms in the Application Layer is not well considered. These companies have constructed their "walled garden" on the public Internet and taken full advantage of information and knowledge that they can exploit. This trend is accelerating with the technological developments in big data, Artificial Intelligence (AI), and the Internet of Things (IoT). Recently, some twenty-five state governments have tried to enact their own network neutrality laws. The California Internet Consumer Protection and Net Neutrality Act of 2018 is the "aristocrat," however, it still leaves much to be improved. Government authorities should design the additional framework that is necessary to retrieve and preserve the vibrant and open architecture of the Internet, recover and maintain the free flow of information and knowledge, and foster the future progress of the Internet

アメリカ合衆国の連邦議会の下院の司法委員会の反トラスト法、法、及び行政法小委員会による「デジタル市場における 競争の調査、多数派の職員/スタッフの報告書及び勧告」 (2020 年) (1)

On October 6, 2020, the majority staff of the U.S. House Judiciary Committee's Subcommittee on Antitrust, Commercial, and Administrative Law issued a report titled “Investigation of Competition in Digital Markets, Majority Staff Report and Recommendations.” The report is the result of a sixteen-month bipartisan investigation that was launched in June 2019. "The purpose of the investigation was to: (1) document competition problems in digital markets; (2) examine whether dominant firms are engaging in anticompetitive conduct; and (3) assess whether existing antitrust laws, competition policies, and current enforcement levels are adequate to address these issues." The investigation was clearly focused on the market power and the dominance of the big technology companies called “GAFA,” i.e. Google, Apple, Facebook, and Amazon. The Subcommittee staff concluded that GAFA posses "significant and durable market power due to several factors, including a high volume of acquisition" and their role as "gatekeepers" of key distribution channels that makes it possible to control access to digital markets. In addition, the staff found that GAFA engaged in a wide variety of anti-competitive conduct including self-preferencing and "killer acquisitions" of nascent and/or potential competitors to maintain their market power. Thus, the Subcommittee staff also provided recommendations "for areas of legislative activity to address the rise and abuse of market power in the digital economy, as well as areas that warrant additional Congressional attention." With the rise of big technology companies like GAFA, and/or “BAT,” i.e. Baidu, Alibaba, and Tencent, governmental authorities all over the world are now facing the similar problems as mentioned above. They should cooperate in studying the issues and thereby design the additional regulatory framework that is necessary in the digital world

アメリカ合衆国の連邦議会の下院の司法委員会の反トラスト法、法、及び行政法小委員会による「デジタル市場における 競争の調査、多数派の職員/スタッフの報告書及び勧告」 (2020 年) (2・完)

On October 6, 2020, the majority staff of the U.S. House Judiciary Committee's Subcommittee on Antitrust, Commercial, and Administrative Law issued a report titled “Investigation of Competition in Digital Markets, Majority Staff Report and Recommendations.” The report is the result of a sixteen-month bipartisan investigation that was launched in June 2019. "The purpose of the investigation was to: (1) document competition problems in digital markets; (2) examine whether dominant firms are engaging in anticompetitive conduct; and (3) assess whether existing antitrust laws, competition policies, and current enforcement levels are adequate to address these issues." The investigation was clearly focused on the market power and the dominance of the big technology companies called “GAFA,” i.e. Google, Apple, Facebook, and Amazon. The Subcommittee staff concluded that GAFA posses "significant and durable market power due to several factors, including a high volume of acquisition" and their role as "gatekeepers" of key distribution channels that makes it possible to control access to digital markets. In addition, the staff found that GAFA engaged in a wide variety of anti-competitive conduct including self-preferencing and "killer acquisitions" of nascent and/or potential competitors to maintain their market power. Thus, the Subcommittee staff also provided recommendations "for areas of legislative activity to address the rise and abuse of market power in the digital economy, as well as areas that warrant additional Congressional attention." With the rise of big technology companies like GAFA, and/or “BAT,” i.e. Baidu, Alibaba, and Tencent, governmental authorities all over the world are now facing the similar problems as mentioned above. They should cooperate in studying the issues and thereby design the additional regulatory framework that is necessary in the digital world