Antitrust Enforcement Kick Started the Wireless Revolution

POSTED BY Yuen Yi Chung on October 18, 2013

Have you ever wished that your Google map would magically work when you are hopelessly lost somewhere overseas? Beginning October 31, T-Mobile customers who have one of the company’s “Simple Choice” plans will be able to use unlimited data and text for free in any of the 115 countries in its “Simple Global” plan. The only fee T-Mobile is going to charge is voice calling, which will run at a low 20 cents per minute.

Facing heavy resistance from both the government and the public, AT&T reluctantly called off its $39 billion bid for T-Mobile back in 2011. AT&T CEO Randall Stephenson said in a prepared statement, “The AT&T and T-Mobile USA combination would have offered an interim solution to [the] spectrum shortage…In the absence of such steps, customers will be harmed and needed investment will be stifled”.  This controversial attempted merger would have made AT&T the largest wireless company in the U.S in terms of market share, and would have allowed it to become a monopoly once again after its first monopoly was dismantled in 1984.

The U.S Department of Justice had sought to block the merge in the name of preserving a vibrant and competitive marketplace. The government as well as critics speculated that consumers would have been the biggest losers in the merger because competition had kept T-Mobile’s prices one of the cheapest and innovative providers amongst national wireless players. T-Mobile has also stood against AT&T and Verizon on various regulatory issues, so if the merger had gone through, Sprint would have been the “odd one out”.

Maybe the Department of Justice was right. By preventing the merger, the government was able to avoid the need for intrusive regulation of the remaining giant firms. T-Mobile also proved Stephenson wrong. On top of its bold international expansion, T-Mobile announced that its 4G LTE network is now nationwide and claimed that their LTE network covers 91 of the top 100 largest markets by population. Amongst other changes that were quickly copied by some competitors, T-Mobile became the first major national provider to provide plans with no credit checks and it changed its phone unlock policy to accommodate a wide range of customers. Even Judge Louis Brandeis, the patron-saint of antitrust, would be proud.


EPU Re-Proposes Regulation of Green House Gas

POSTED BY Hunter Holman on October 18, 2013

Fossil fueled power plants are one of the largest sources of anthropogenic greenhouse gasses.  On June 25, 2013, President Obama announced that he would order the EPA to promulgate greenhouse gas emission standards for power plants utilizing fossil fuel technology in an effort to reduce the amount of greenhouse gasses emitted by this country.  Prior to this announcement, the EPA had already proposed standards for regulating greenhouse gasses in April 2012, but these proposals were never confirmed in the federal register due to the record number of comments the EPA received on the proposed regulation.  Subsequently, President Obama ordered the EPA to re-propose the regulation by September 20, 2013.

On September 20, 2013, the EPA re-proposed standards for greenhouse gas emissions from new electric generating units (EGUs)—primarily coal and natural gas-fired power plants.  These new source performance standards (NSPS) would only allow coal-fired EGUs to emit 1,100 pounds of carbon dioxide (CO2) per megawatt-hour of electricity and 1,000 or 1,100 pounds of CO2 per megawatt-hour of electricity (depending on the size of the unit) for natural gas-fired EGUs.  While these standards are less intrusive to natural gas-fired power plants, which release fewer emissions than coal-fired power plants, they would require new coal-fired power plants to reduce their CO2 output significantly.  The EPA projects that an average coal-fired power plant emits 1,800 pounds of CO2 per megawatt hour of electricity, which means that similar new power plants would need to reduce their CO2 output by 40% to meet these proposed standards.

In order to accomplish this reduction, new coal-fired power plants would likely need to incorporate technology that will reduce their CO2 emissions.  One such technology is carbon capture and sequestration (CCS).  This technology is used to separate CO2 generated by fossil fuel power plants from other emissions, which is then stored, typically, by injecting it into the ground.

One of the concerns with this technology is that it is not economically feasible because the equipment and process is very expensive, and it can consume as much as 30% of the energy generated by the power plant.  The EPA maintains that CCS is technologically feasible and that it has been successfully implemented many times before.  To ease the economic burden of implementing CCS technology, the EPA has provided two avenues for complying with the proposed regulation, one of which would allow new facilities the ability to distribute the cost of this technology over a longer period of time.  The first option of complying with the proposed regulation measures compliance using a rolling average of emissions over a 12-month period. This would require a new power plant to meet the 1,100 pounds of CO2 per megawatt-hour of electricity standard for each year of operation.  The second option measures the amount of emissions over an 84-month period, which would allow the facility the flexibility to exceed the proposed standard while the technology is incorporated, but this option ultimately requires the facility to meet a lower standard of 1,000 to 1,050 pounds of CO2 per megawatt-hour at the end of the period.

At first glance this regulation seems to provide a significant barrier to energy generation in this country, particularly the coal industry.  However, as the EPA argues, this proposed regulation seems to merely codify within the federal register the current market shift of the energy industry: moving away from coal and towards more efficient and costly fuels for energy generation such as natural gas.  The cost of natural gas is projected to be lower than the cost of coal for the foreseeable future.  Because of this, it is more likely that natural gas-fired power plants will be built in the future rather than coal-fired power plants, making this proposed regulation merely an assurance that the energy industry does not needlessly revert to older and dirtier methods of generating electricity.

Critics of this proposed regulation suggest that it would effectively prohibit construction of any new coal-fired power plants because the cost of incorporating CCS technology and bringing CO2 emissions down to the requisite level would be infeasible.  The Clean Air Act restricts the EPAs standard setting authority by requiring the standards to be achievable through the best adequately demonstrated system of emissions reduction.  The relevant question here is whether CCS technology has been adequately demonstrated.  If the proposed regulation becomes the new standard, the D.C. Circuit Court could be asked to answer this question.  The D.C. Circuit has stated in the past that in order for a technology to be adequately demonstrated it must be reasonably reliable, reasonably efficient, and reasonably costly.  One of the pertinent questions when determining if a technology meets these requirements is whether or not the technology is primarily theoretical or experimental, or whether there have been instances of its successful use, even if the industry has not adopted the technology as the norm.

Another question the D.C. Circuit may have to address is whether the EPA is forcing the adoption of CCS technology on those who wish to build new coal-fired power plants.  If so, the Clean Air Act would forbid the proposed regulation.  The EPA may not typically require a new source, a power plant, to adopt a particular technology to comply with new source standards.  If this proposed regulation is adopted and challenged on these grounds, how the court answers these questions will largely depend on how costly and efficient CCS technology is when the challenge is brought, as well as what alternatives are feasibly available at the time.

This new proposed regulation is not the standard yet, but as it is now, the proposed regulation is more symbolic than anything.  It is unlikely that any new coal-fired power plants will be built in this county any time soon because it is a more expensive fuel source than natural gas.  For that reason alone this proposed regulation would not significantly alter the energy market in this country.  However, the invaluable part of this proposed regulation is that it is a step towards closing the door on coal by requiring the level of emissions from fossil fuel EGUs to be lower, thus making it more cost effective to invest in cleaner forms of fuel such as natural gas.

See It: Comcast’s Bold Move to Promote Television Deals on Twitter

POSTED BY Nicole Cocozza on October 18, 2013

In an era full of social media, cable television service providers are becoming extinct.  In order to keep up to speed with the social media age, cable television providers need to change direction in the way they advertise their services to the public.  One service provider in particular, Comcast, has decided to incorporate their cable television service with a popular social media network, Twitter.

Comcast is a global media and technology company with two primary businesses, Comcast Cable and NBC Universal.  Currently, Comcast is trying to promote a deal with Twitter that will allow customers to reach certain television shows through Twitter.  The unique feature promoted by Comcast is called “See It”.  See It will allow Comcast customers to log into their account and access certain clips of television shows by displaying a See It icon at the bottom of Twitter post.  This special See It feature will allow customers to watch an on-demand version or record the show.  The See It feature is not only beneficial for Comcast, but also a brilliant decision by Twitter.  Twitter is allowing for more promotion of television series and connecting with networks.

The partnering of a social media network and television service provider is a bold move by Comcast.  The combination of former and modern social entertainment can be beneficial, but also present legal downfalls such as unfair competition among service providers and social media networks.  Unfair competition among service providers can lead to lawsuits among cable service providers because this move by Comcast could potentially lead to financial harm to Comcast competitors i.e. Cox or Verizon Fios.  Also, other social media networks, such as Facebook and Instagram, may want to claim rights to Comcast’s See It app on their network, which may lead to lawsuits between Twitter and other social media networks, if Twitter were to desire exclusivity.   Another potential downfall among television service providers is trade libel.  Television service providers may decide to advertise false information about Comcast’s See It app.

Nevertheless, the combination of television service providers and social media networks is a courageous move by Comcast.  In order to keep up with a society that is rapidly invested in social media, television service providers need to make a change.  There may be a few legal downfalls by this move by Comcast, but if they do not change to keep pace with a social media society they may soon become obsolete.

Technology in the Courtroom: At the Blink of an Eye?

POSTED BY Veronica LaClair on October 18, 2013

It is no surprise to learn that every year within the United States and across the globe new technologies are created and integrated into the very fabric of society. From the development of computers in the 1950’s, to the explosive birth of Apple products within the last twelve years, the evolutionary progress of technology has been spectacular. What is even more impressive then these technologies themselves, is their acceptance and integration into everyday life and within the professional work world. One of the newest technologies to hit pop-culture is Glass, Google Glass.

Let’s start with a simple question: What are Google Glasses? Before this question can be adequately addressed a brief discuss as to some common misconceptions about what Google Glasses are would be extremely helpful. First, Google Glasses are not glasses. Although the housing frame for the technology does resemble a traditional glasses frame, the technology is not a pair of glasses. However, Google is in the works of developing a prescription prototype in which case the technology would double as a pair of glasses.  Second, “Google Glasses” is not the official product name.  The official product name is “Glass”. It appears that the people who believe the technology is glasses rather than Glass are referring to the technology as “Google Glasses.” Moreover, even those who know what the technology is are still not referring to it as “Glass.” It appears that people are referring to the product as “Google Glass,” in an attempt to associate the product Glass with its creator Google. Once Glass becomes openly available to the public, more common place, and more identifiable as a product of Google, there may be a move towards calling the technology Glass. However, it seems likely that Google Glass with remain the common street name for the technology for the time being.

Now let’s ask that question again: What is Glass? Glass is essentially a micro-computer processor mounted in a wearable head frame. Understanding the structural layout of the product would serve a useful purpose here. Imagine you are wearing a pair of glasses, without any lenses in them. The right arm of the glasses has an approximately three inch long by half inch wide by quarter inch deep box attached. This box is actually a computer processing system, much like what is in a smartphone, only smarter. Extending from this box is a rectangular piece of glass, slightly bigger than an average person’s thumb print, which curves in front of your right eye. This glass rectangle is the screen. From this structure the user is free to see the world around them as they normally would. At the command of wearer the technology can be activated, by touchpad or by voice, to carry out specific commands. “O.K. glass. Take a picture.” Will prompt a picture to be taken through a camera in the frame, in real time, of what the wearer is observing; The same can be done with video. The Glass can be prompted to Google, translate, open documents, find directions, etc. Almost anything a smart phone or personal tablet can do, Glass can do—hands free.

Glass is still in the experimental and trial phase of development, having launched an explorer program in February of 2013. The program called for bold and creative individuals to apply, via a Google+ application of fifty words or less and a fifteen second video, for the chance to sample the technology. One of those bold and creative individuals was Suffolk University Law School’s own Professor Andrew Perlman. Professor Perlman pitched the idea of “Glass in the Class,” and was given the opportunity to sample the technology, receiving his own Glass in June of 2013. As an innovator himself, Professor Perlman is fostering a new generation of attorneys who are both ready to practice law and able to do so in a technologically advanced world. Using the Glass to better interact with and education law students is proving a success. Students are able to text Professor Perlman questions and comments, which then appear on his Glass and can be addressed real time, without any delay in class time. This system allows students to better formulate question before they ask them, ask questions anonymously, and allows Professor Perlman to answer questions when he feels the answers would be most helpful.

Taking Glass into Class is a successful step forward, but is taking Glass outside of the classroom and into a courtroom or within the legal community a viable option? Professor Perlman said one foreseeable option is to use the Glass to aid in depositions. The use of Glass for depositions would allow remote access between parties and recording of the testimony in real time. Using Glass in this way would save time and money, and would prevent a team of people from having to travel to a singular deposition location. Glass in the courtroom might prove more difficult in application. Although Glass is a useful technology, it will most likely “not have a transformative effect, on the way that lawyer’s practice law,” says Professor Perlman. The technology is already out there—smart phones, apple technology, and the likes—which would better serve to improve daily courtroom functioning. The idea that hands free technology in the courtroom would serve as a giant leap forward for litigants is not outweighed by the possible pitfalls of Glass in a courtroom setting. One possible concern would be courtroom privacy regulations. Glass has both the ability to record and stream live, both of which can be done incognito and may serve as possible deterrents from using the technology within a courtroom.  Glass technology is “more evolutionary than revolutionary,” with respects to courtroom application claims Professor Perlman.

Since Glass is not commercially available as of now, there is no real way to determine whether or not it will have a future in courtrooms. Legal scholars, such as Professor Perlman, have their experience and expertise to weigh in, but only time and precedent can write the applicable ending to this story. At some point a person with Glass will enter a courtroom and the judge will have to make a decision on how to address the technology and the extent to which it can be used within their courtroom. Until that day the selected few that are able to explore Glass, including Professor Perlman and his Civil Procedure lecture students, will push Glass technology forward.

Clones Creating Conflict: Should Cloned Horses be Treated Equally?

POSTED BY Andrew Clark on October 18, 2013

Advancements in the field of reproductive technology, in particular the science of cloning, have exploded in the 21st century.  With the development of new technology, comes the development of legal issues pertaining to these discoveries. On May 24, 2013, the United States District Court for the Northern District of Texas, Amarillo Division addressed an issue regarding cloning horses in the Abraham & Veneklasen Joint Venture v. American Quarter Horse Association case.

This case arose when the Plaintiffs, breeders of American Quarter Horses, were denied registry, in the American Quarter Horse Association (AQHA), for their cloned offspring. The AQHA is a non-profit association that is self-funded primarily by memberships, which totals 281,000 members. The Plaintiffs filed suit against the AQHA alleging Sherman Antitrust Act §1-2 violations. The Plaintiff’s case turned on AQHA Rule 227(a), which states:
Horses produced by any cloning process are not eligible for registration. Cloning is defined as any method by which the genetic material of an unfertilized egg or an embryo is removed and replaced by genetic material taken from another organism, added to/with genetic material from another organism or otherwise modified by any means in order to produce a live foal.

The district court granted an injunction forcing the AQHA to register cloned horses and their subsequent offspring. The court concluded Rule 227(a) did violate both Federal and State anti-trust laws stating that AQHA committee members “had an incentive to decrease competition by excluding elite clones” and “excluding clones deprives the marketplace of independent centers of decision making”.

Current laws have had to continually adapt to remain pertinent and effective with regards to developing technology. Here the court made the right decision regarding registration of cloned horses. The AQHA denying the registration of clones seems to have a self-serving motivation fronted by various concerns; such as, the impact of cloned horses on various competitions.  There are many aspects beyond genetics that make a horse successful in specific disciplines. Much like raising children, the environment and training methods used have more of an effect on the success of a horse, than the horse’s genetic makeup. Just because a horse is genetic clone of another does not mean that it will behave like its cloned relative or be as successful as its clone. Although this case does not answer all the legal questions regarding cloning technology, it lays a foundation for applying existing law to future these legal problems.

Independent Video Game Developers: In Particular Need of Legal Assistance and Particularly Unable to Secure It

POSTED BY Micah Kesselman on October 18, 2013

Video games, a relatively niche industry only a decade ago, has quickly grown into one of the largest entertainment sectors in the world and, as recently as a year ago, was projected to expand to an $82 billion dollar market by 2017. Families now game together. People watch competitive video game tournaments live over the Internet, raking in ad revenue from hosting services and sponsorship deals from competitors who travel across the globe to participate in these multimillion-dollar competitions. The face of entertainment has rapidly and unquestionably been changed by the rise of this subset of the entertainment industry.

Media and analysts have widely, and thoroughly, covered this shift. The advent of the independent developer, however, has started to shake up what is already a young industry. What was originally a rare and newsworthy event, a small team of dedicated and hardworking developers pushing a product to market to create their own careers, has become a nearly commonplace event over the course of only a few short years. It has come to the point that the monoliths of the video games industry have begun to embrace this quirky subset of a subset of the entertainment industry. Realizing the astonishing success of games such as Minecraft, Microsoft, Sony, Square-Enix, and many more have provided self-publishing venues to independent developers. Crowd funding platforms like Kickstarter and Indiegogo allow start ups to acquire funding more easily than ever before. On Kickstarter, games account for 7,152 of the launched projects, while simultaneously pulling in more than $182 million of crowd sourced funds – more than any other category, with Film & Video coming in a respectable second at $173 million.[i]

Some of these projects are conceivably nothing more than testing the waters for a market[ii]; many others can have teams, as small as two or three individuals, all specializing in development roles.[iii]  This gives cause for concern—as entrepreneurs in the software and entertainment industries, video game developers are vulnerable in virtually every single domain of the general field of intellectual property. While large companies, with their veritable armies of lawyers and limitless funds, can thoroughly protect themselves, the independent developer may need to hit it big before they are able to properly guard their legitimate interests or stave off the much feared creatures known as IP trolls. However, even those that have hit it big had relatively humble beginnings.[iv]

When developers are in these early stages, they are not only vulnerable to extrinsic predatory forces, but can also face the more run of the mill issues associated with a business being conducted without any kind of legal counsel – falling victim to terrifyingly lopsided contracts, choosing among the distribution platforms and their respective licenses, and a myriad other legal issues. What results is a class of entrepreneurial entities that, though someday may be able to afford legal services, are incredibly vulnerable at a critical point in their growth. There is no easy solution to this dilemma—basic filing fees may be beyond the budget of these developers, much less the payment for representation—but basic knowledge of some of the issues can only help independent developers.

Further exploration of such topics is certainly merited and will be seen in my later blog entries. For the time, this entry is simply intended as a basic overview of the issues which a new subset of a relatively new industry faces.

[ii] For example, projects such as Camelot Unchained, which have respected and influential industry names behind them.

[iii] In contrast to the above, other projects like PULSAR: Lost Colony are developed by skeleton teams, asking for relatively little funding.

[iv] Furthermore, it took Minecraft over 6 months of availability for it to hit the 100k user mark.

California Enacts Law that will Allow Minors to Erase Their Digital History

POSTED BY Caroline Carollo on October 4, 2013

Minors are spending significantly more time online than ever before, and they are not always aware of the consequences of posting personal information about themselves and leaving a digital footprint.  Kids often act impulsively with the content they post on social media sites, and these posts become part of a searchable, permanent record that can follow them for the rest of their lives, impacting college applications and job applications.  As a result, the state senate president of California stressed the need to protect minors in this unforgiving digital era, proposing that adolescents should be given the right to remove reckless pictures, videos, or messages that they have posted online.

On September 23, 2013, the governor of California signed SB 568, a new law that will require websites, mobile apps, and online services aimed at minors to allow minors to delete or remove the information they post.  Website providers will be required to notify minors that removal is an option, and they must provide clear instructions on how a minor should request removal of the content that he or she posted.  However, website operators will not be required to delete that content which has been reposted by a third party before the author of the post has it removed.  Moreover, this law will prohibit the advertising of harmful products that are illegal for adolescents to use or purchase, such as alcohol, tobacco, and guns, on websites that specifically target minors. The provisions of SB 568 will become effective as of January 1, 2015.

While such a law is a good way to give internet users more control over their online identities as well as a “second chance” at creating a positive image of themselves, there are some flaws that will affect its efficiency. First, SB 568 will only apply if someone is under the age of 18 and lives in California.  The fact that it is a state bill will make it difficult to navigate and enforce; the law suggests it seeks to regulate all websites and online services, including those that are not under California’s jurisdiction.  Many websites with online users that live in California will not have their servers based in California, which leads me to believe it is unlikely that these websites will comply with the requirements of SB 568.  One might think the solution in this case is simple: block these websites that are not complying with the law from California-based IP addresses. However, this law only applies to minors, so taking away everyone’s access to these websites would not be fair or feasible.  Moreover, this law would not protect adults that want to erase something from the internet that they posted when they were minors.  While I understand the law is designed to protect children that may not be mature enough to understand the consequences of leaving a digital footprint, it seems unfair to deny an adult from doing exactly what the law allows minors to do—delete content he or she posted when he or she was under the age of 18.

Additionally, the removal requirement of SB 568 will not apply if the distasteful content was posted online by a third party.  This means that a minor will not be afforded protection under the law if his friend, or worse, his enemy, is the one that posted the embarrassing content of him online.  There is also the issue of a third party taking screenshots of content that a minor posted online, or of reposting that content. This would also seem to fall beyond the online provider’s, and the law’s, control. Furthermore, even though a minor can request that his or her post be deleted from a website, there are no requirements that the actual data on the servers be deleted.  Although there are good intentions behind it, there seem to be too many “holes” in this new law.