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STATEMENT OF COMMISSIONER MICHAEL K. POWELL,
CONCURRING IN PART AND DISSENTING IN PART

Re: Memorandum Opinion and Order, Applications for Consent to the Transfer of Control of Licenses by Time Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner, Inc., Transferee (CS Docket No. 00-30)

The merger before us is one of the most significant in history. It promises to open a new chapter in communications, combining a host of assets and expertise that will likely bring new products and services to consumers. As one would expect, the very same things that engender excitement and promise with this combination also raise anxiety and trepidation among competitors that the market will be dominated by this new entity, to the detriment of competition and consumers.

The merger is also unique because it is difficult to review using traditional metrics. The greatest public benefits as well as the putative harms lie principally in the future, thus making any analysis somewhat speculative and amorphous. Our challenge is to base a decision soundly on evidence that presently exists, on an understanding of the business dynamics of an Internet-centered market, on a grasp of past experiences and on reasonable (and carefully limited) assumptions about the future. This is no easy task, but the key is not to let our imaginations run away with us, given the absence of strong evidentiary moorings.

Unfortunately, in this Order, we do take excessive counsel of our fears, or, more accurately, the fears of AOL Time Warner's competitors. Therefore, I concur in approval of this merger but dissent in several respects. (1)

I write separately to underscore the following points: (1) that our license transfer process continues to pull the Commission away from its core responsibilities and competencies; (2) that the anticompetitive analysis used to support the Instant Messaging (IM) condition is flawed; and (3) that the sweeping declaration that IM interoperability is somehow intrinsic to the public interest is not based soundly on the record, but is simply the sentiment of the Majority. Such a far-reaching judgment, if merited at all, should be reached only through a more comprehensive regulatory proceeding with the notice and comment procedures set out in the Administrative Procedures Act.

I. THE LICENSE TRANSFER PROCESS IS STRAYING FROM THE COMMISSION'S MISSION.

I have had many previous occasions to discuss our approach to license transfers (i.e., mergers) and have expressed some concerns about it, focusing primarily on our tendency to adopt conditions that were divorced from the perceived harms. (2) In contrast, I would like to compliment the drafters of this Order (primarily, our hardworking Cable Services Bureau staff) for making a valiant attempt to identify specific harms and crafting conditions in response to them. Regrettably, in places, the final product strays considerably from this limited approach.

Our review process has two fundamental problems. First, it is increasingly morphing the FCC into an antitrust authority, duplicating the analysis of other more competent authorities. Of course, we have independent authority to review these combinations, but we have wide latitude to decide how searching and how broad such a review need be and I believe we have moved much too far into the domain of other government institutions, namely the Antitrust Division of the Department of Justice and the Federal Trade Commission.

Second, we increasingly use these reviews as substitutes for regulatory process. I believe we are losing focus on our institutional charge. I am of the view that the FCC's focus should be on compliance with the current regulatory regime and a forward-looking focus on the appropriate regulatory treatment of the industry as a whole. In contrast, the antitrust authorities' focus is squarely on the merger-specific anticompetitive harms of a given combination and not on regulation. Increasingly, this distinction is blurring. I find that the Commission is willing to pursue broad-reaching industry-wide regulatory questions in the context of an adjudicatory proceeding, the record of which is limited to the facts solely involving the applicants. Our merger "conditions" more often look like rules, reflecting judgments that, if true, affect the entire industry and not just the parties. As such, they should be entertained, if at all, in a broader-based proceeding. The IM condition imposed in this order is an ideal example of this drift.

II. THE MAJORITY'S ANTICOMPETITIVE ANALYSIS FOR INSTANT MESSAGING IS FLAWED.

The discussion supporting the IM condition, which would require interoperability if the applicants provide video-oriented advanced, IM-based, high-speed services ("video AIHS"), reveals what a melange our review has become. On the one hand, it is a classic (though flawed) anticompetitive analysis, in which the Commission justifies an IM condition based on AOL's dominance in the IM market. Yet the analysis frequently wobbles, trying to cure shortcomings by resorting to grand declarations that IM interoperability is somehow intrinsic to the public interest--a breathtakingly broad pronouncement that crashes through the confines of this particular merger, with broad implications for all communications and Internet services.

The decision to impose an IM condition rests, in part, on the conclusion that AOL enjoys virtually insurmountable market power in the existing IM market and will leverage that power into the next generation of IM-based products. I find the anticompetitive analysis on which this conclusion based unpersuasive and, indeed, flawed.

A. No Traditional Indicia of Market Power

1. No Clear Market Definition

It is the elemental step in a competitive merger review to define the market--both in terms of the product and the geographic scope. Defining the scope of the market is essential for measuring market power. It is the metric used for determining the number of competitors and is the denominator used for calculating the merging parties' share of the market and subsequently its market power. It is the foundation of a well-grounded analysis.

With respect to IM, however, the Order does not cleanly define the market, presumably because the analysis vainly tries to anticipate harms relating to a loose collection of largely hypothetical, not-yet-existent services. Indeed, it eschews the need to define the market with any precision. (3)

A sound competitive analysis cannot proceed without some attempt to pin down the market, even where, or perhaps especially where, services are new and novel and share characteristics with many other products and services. This foundational discussion is absent from this Order, and would likely prove fatal if an antitrust authority tried to bring such a case in court.

2. Inconclusive Market Share Data

Admittedly, the Order tosses around some impressive market-share numbers in an attempt to demonstrate, or at least to give a feel for the idea, that AOL is dominant. The Order concedes, however, that there is no solid accepted basis for measuring IM users. It is difficult to compare one company's market share to another's given the lack of uniform criteria. The numbers cited are largely those proffered by the proponents of a condition mandating interoperability for text-based IM--a condition that even the Majority is unwilling to impose.

The most objective data on the record is a study by Media Metrix, recognized as the world leader in the measurement of Internet and digital media use. (4) Tellingly, the study shows very substantial growth by the two largest competitors of AOL (i.e., Microsoft and Yahoo!) as compared to slowing growth for the AOL service. Moreover, the study reports that, combined, Microsoft and Yahoo! have nearly the same market share as AOL. This study, though arguably the best objective evidence of market share, market trends and market power is barely mentioned in the Order. (5)

B. Classic Tipping is Unsubstantiated

In the absence of sound market definitions and market data, the Majority turns to a more theoretical construct to show that AOL may be in a position of "unassailable dominance." (6) The Majority essentially employs a market "tipping" analysis in an effort to make this case, attempting to demonstrate that the IM market has nearly tipped, or will tip when AOL combines with Time Warner. The Majority avers, however, that it expresses no opinion on whether its conclusions can be read as a finding the market has tipped. Tipping analysis is emerging as a tool to examine markets that exhibit strong network effects and can be employed to consider the anticompetitive dangers with respect to IM. However, theory is only predictive and must yield when the facts stubbornly belie the theory. That is the case with IM.

A market is said to tip when consumers find the largest provider of the real or virtual network so much more valuable that consumers increasingly select that provider and increasingly abandon all other providers. (7) Thus, in theory, tipped markets can lead to one provider rapidly surfing these network effects to a point that competitors are unable, no matter how efficient or innovative, to compete effectively with the market leader. Under these circumstances, the benefits to consumers of joining or not leaving the dominant provider's network so far outweigh the benefits of using rival networks that consumers increasingly choose the dominant provider and increasingly avoid rival providers. Not all markets exhibiting strong network effects will tip, however. (8)

Had the Majority persuasively demonstrated that the IM market had tipped, and that AOL Time Warner would assuredly dominate the market for any future IM-based services, an IM condition might be warranted. Instead, the Majority takes a middling course--using tipping analysis to find that AOL Time Warner may well be in a position of "unassailable dominance," (9) while trying to avoid concluding the market has in fact "tipped." (10) Whatever the semantics of its conclusions, the Majority's market tipping analysis is a critical analytical underpinning for the IM condition. (11) Thus, I believe it worth some extended discussion.

Tipping is a very interesting theoretical phenomenon regarding network markets and has been the source of much discussion in antitrust literature. Despite its appeal, however, there is little consensus on how to measure when a market has tipped, and at what point government intervention is warranted. Tipping theory is at once seductive and elegant, perhaps too much so. My concern here is that it can be used to justify premature, unwarranted government intervention, even where there are counter-indications that the market will remain competitive on its own, as I believe is the case here. (12)

Many of the accepted indicia of a tipped market--and, indeed, of market power generally--are just not present in the IM market, despite AOL's large market-share. I detail some of these factors to underscore the weakness of the Majority's market assessment:

No sign of competitor collapse. Network effects can be both positive and negative. That is, while a company might grow subscribers, market share, and market leadership quickly, network effects can also combine to destroy other companies just as rapidly. In fact, if a market has tipped one would normally expect to see exponential growth by the leader and a precipitous fall off by its competitors. (13) Here, we see the opposite; although AOL's customer base has continued to grow, AOL's competitors have been growing at a much faster rate. (14) Indeed, although AOL essentially created the market for IM only a few years ago, competitors have garnered a sizeable portion of the market in considerably less time. (15) Many of AOL's competitors have surpassed AOL with respect to IM innovation and have joined the battle by bringing their own unique assets to bear. (16) Microsoft is integrating its product into the world's leading browser as well as its successful Hotmail e-mail service. Yahoo! has created an applet called Yahoo! Companion that attaches to the browser and has made it a part of its My Yahoo! services, the leading Internet portal with a very substantial subscriber base.

Very low barriers to entry. The Order takes the view that AOL's Names and Presence Directory (NPD) technology is an essential input and that AOL has an insurmountable lead by virtue of its large NPD. While I agree an NPD is an essential input (indeed, this may be nothing more than another way to describe what IM is), I am at a loss to see why AOL has an insurmountable advantage, seeing that other providers can easily develop or acquire the key assets. Names and Presence Directory technology is not particularly sophisticated to develop or acquire. The record does not suggest the technology is difficult to reproduce or that AOL has any control of the technology through intellectual property rights. Many competitors seem to be able to develop and employ products using the technology without much trouble.

The Order essentially argues that the NPD is not simply a database of users. Yet if the presence detection functionality is easily acquired, then the only missing ingredient is simply a large user base to take advantage of the network effects. Many Internet providers have access to large databases. Microsoft and Yahoo! have very large subscriber bases, as does Citibank and Amazon.com, among others. I see no reason, for example, why Citibank could not offer IM services to all its customers to have real-time customer support for its members. Or, why Amazon could not offer an IM product to its base of users to facilitate discussions with fans of Robert Ludlum's books. Or, why an IM provider could not market its products to distinct communities of users, such as colleges and universities. The IM product has any number of creative and innovative uses, depending on what network, base of users, or communities you attach it to.

Underlying the Majority's analysis is the clear view that IM is the new phone system--that it will be a mass market, public network (like the public switched telephone network), allowing anyone to talk to anyone. I am not convinced that this is the proper conception of the service, as IM's most compelling and sustained use may be to serve as a tool for intimate communications with a well-defined, limited community (rather than with everyone in the world), or as an adjunct to some other product or service. Further, unlike the Majority, I find it cavalier to conclude or even suggest that IM is the essential platform for real-time interactive services. There are many technologies vying as solutions for real-time interactive service and our endorsement of one is naïve. Sure, it could turn out that the Majority has guessed correctly, but I would remind them that even the surest bets for the "next big thing" (i.e., the technology that will be most popular) have missed the mark. (17)

Nascent Market. AOL created this market and, until recently, has had it to itself. Other providers have only entered in the last year. There remains huge growth potential for the entire market. AOL does not have a high percentage of a mature market, it just has the most customers in a new and growing market. Depending on the size that the IM market ultimately becomes, AOL could be overtaken, without any competitor winning a substantial portion of existing AOL customers. Indeed, the fervor with which AOL's competitors have pursued the imposition of IM conditions would seem to suggest a very large and lucrative market for IM, rather than one whose growth stagnates at or near the size of AOL's current customer base. Moreover, there is great potential for competitors to add features and functions to compete with AOL and win these customers. The network effects, which are not isolated to AOL Time Warner, provide the possibility for strong competitive growth as well if a competitor can put together a base of users.

Consumers not locked-in. Usually, with markets that are believed to have tipped, you find a lock-in of subscribers. That is, it is very difficult to get them to switch to competing services. Here, however, one finds very few of the traditional lock-in problems:

No cost to acquisition. If a consumer invests a substantial amount of money in a product or service, he may be unwilling to abandon that investment lightly. Similarly, if the process of acquiring a product or service is laborious or costly in terms of time, a consumer may be less willing to go through the same process to switch products or providers. IM costs nothing and is easily downloaded onto any computer with an Internet connection. Virtually no investment in time or money is required to acquire IM from any provider.

No learning curve. Another lock-in effect is present when a user must invest a lot of time in learning how to use a product. A consumer is not easily convinced to switch to another product if he must start over and learn a new system. Economists sometimes call this "path dependence." (18) The classic example is the "QWERTY" standard typewriter keyboard. This keyboard was reportedly designed purposely to be inefficient in order to prevent users from typing so rapidly that they jammed the typing mechanism. Having learned to use this "inefficient" keyboard, however, few people want to learn to type again, in an entirely new way. Thus, they are "locked in" to using the keyboard they have already learned to use. Here, despite the Order's suggestions to the contrary, there is no real dispute that any of the IM products can be downloaded and used within a matter of minutes, without any significant training. Thus, this ease of access and mastery ensures that users are not locked in to any given IM product based on any steep learning curve.

No incompatibility. A customer might not wish to switch to a competitor's product if it would be incompatible with her system. For example, one who owned a Microsoft Windows-based PC, could not switch to an Apple operating system without purchasing an entirely new computer, because of the incompatibility. Here, all IM products can be run on the same machine, and at the same time. Users can run both products and talk quite easily with two networks of people. Perhaps a teenager speaks with her close friends on one service and her soccer teammates on another, and her parents on still another. Indeed, there is evidence that people use multiple IM services purposely and see benefit in operating in this fashion, rather than insisting that IM work like a telephone, that allows anyone to call into you using one platform. (19)

Losing your buddies. The theory of tipping in the Order makes much of the fact that a user would have to re-enter his buddy lists and get his buddies to change products in order to switch services. Specifically, the Order hypothesizes that the burden of switching IM services will be insurmountable because that would require a user to get his AOL buddies to switch to the new service, even though those buddies may have their own unique buddies that also currently use AOL. This is true, but I find the onerousness of this exaggerated. Fundamentally, I do not accept that IM is necessarily the equivalent of the public switched telephone network and that a user is compelled to stay with the network that has the most users. I think IM is more of an intimate communications tool, in which people maintain fairly discrete lists of buddies to whom they wish to speak. The record contains no evidence that the average user possesses buddy lists so large it would be prohibitive to move them or re-enter their names. A simple message from a user to her friends, imploring them to change, may be relatively easy and effective.

C. The Majority's Novel Behavioral Theory

The Majority's behavioral theory is a vain and circular attempt to compensate for the weak evidence to support their IM condition. Undeterred that traditional tipping analysis is undermined by the factual record, the Majority conjures up a new behavioral theory, that rests entirely on the supposition that because AOL has not, to date, been willing to interoperate with its competitors, that itself is proof that AOL has nearly insurmountable market power. A carrier it seems should always prefer to interoperate with other providers in order to extend its reach and increase the value of its network. If a provider refuses to interoperate, the theory goes, the only explanation is that the provider believes that the market has tipped in its favor and that it need not interoperate with other providers. Therefore, since AOL has yet to interoperate, one can conclude that it believes the market has tipped (or is impermissibly dominated by AOL). Besides this theory having the leathery taste of bootstrap, it is undermined by the record:

First, it is an over-statement to say AOL has refused to interoperate. It has maintained both publicly and in this proceeding that it wishes to and will interoperate once it can tackle a number of concerns in developing a standard. (20) I recognize that such a statement could be self-serving, and the Commission is entitled not to credit AOL's sincerity. But I have problems with a theory that rests so heavily on a leading provider's refusal to interoperate as a basis for concluding the market has nearly tipped or is dominated by that provider, where the provider is not, in fact, refusing to interoperate under any circumstances. I am not prepared to read so much into AOL's less than fulsome participation in the Internet Engineering Task Force (IETF) for the relatively short period that effort has been underway, nor can I place that much weight on AOL blocking companies that entered their servers without consent or negotiation.

Second, the behavioral theory assumes that market dominance is the sole reason a provider would not interoperate with its competitors. A provider may be able, however, to enhance the value of its network in other ways than by granting non-subscribers access to its network. Moreover, a provider may not be able to afford the cost of expansion or maintenance of a larger network. Its business plan may call for a more private or intimate network, with higher quality, reliability and privacy and not a mass market telephone-like model. Who knows? But it is hard to accept the notion that market tipping is the primary reason that AOL would decide not to interoperate.

Indeed, AOL itself proffers a different reason for why it has yet to interoperate with other providers and that is privacy and security concerns. (21) AOL has a business model according to which it sells "community." In facilitating that community, it places a premium on protecting the consumer's experience and privacy. (22) Surely, increasing unwanted exposure of its subscribers to unwanted IM contact from others is not necessarily nefarious. Additionally, it does appear that some security issues do in fact presently exist, which is one reason the Commission was not comfortable with mandating immediate interoperability with other providers. (23) Lending some support to AOL's argument that it does not interoperate with other providers for reasons other than its desire to maintain market dominance over its competitors is the fact that AOL has not integrated its own IM product (AIM) with ICQ, so that they could interoperate.

Third, the behavioral theory also assumes that all the non-dominant providers will wish to interoperate. We have gotten ever-changing representations of the degree to which such providers do interoperate, but it is clear that for a substantial part of the relevant period, AOL's competitors have not interoperated themselves and, to this day, the two largest competing IM services, Microsoft and Yahoo!, do not interoperate, nor do some other members of the IM Unified coalition. This suggests there are issues to be worked out before they interconnect, and/or that the Majority's behavioral theory is less than perfect in its predictive value.

In sum, though creative, the behavioral theory espoused here does not explain away the tangible evidence, discussed above, that contravenes the conclusions reached in the Order.

E. The IM Condition Itself

The IM condition is minor and not fairly derived from the analysis. The Majority has chosen to require interoperability of some future IM video product. The only problem is that these products, in large measure, do not yet exist, and thus there is not a market, let alone a market monopolist. Without a clear product, we cannot define a product market, nor can we assess the competitiveness of that market. Moreover, this product may or may not develop in the marketplace. The product may or may not be developed by AOL. I believe in innovation markets and sometimes cautiously accept protecting such markets through government intervention. In this case, however, I lack any confidence that we know how IM will evolve, or if identifiable harm will result.

It is no answer to say that our action does no harm and may do good. Our actions may very well affect innovation, by restricting AOL's incentives to innovate, and by favoring competitors, who can innovate without interoperating with AOL, thus restricting AOL in a market for future services. Under the Majority's hasty establishment of interoperability as being in the public interest for AOL alone, other players can develop new products without any regulatory restraints, while an effective competitor remains shackled. Rather than preserving a competitive market, we may do nothing more than tip the market to another player. To impose a condition at this stage without incurring these risks would take a wizard--I guess a Wizard of AIHS!

I believe video AIHS has been crafted by the Majority in an attempt to manufacture merger specificity where there is none. The anticompetitive analysis runs to the existing IM product. AOL alone operates IM and it did so when Time Warner was just a glint in its eye. Normally, what this should mean is that a condition on the merger is unwarranted. Undeterred, the Majority proceeds with a condition by inventing a product that requires assets from both the merging parties. Video AIHS, a product baked with ingredients from Time Warner - a little content, a little cable broadband - and presto you have a heretofore unseen IM Video product and your merger specificity problem is solved. "Behold, the great and powerful AIHS! "

III. IT IS INAPPROPRIATE TO ESTABLISH INTEROPERABILITY AS A REGULATORY PARADIGM IN THIS PROCEEDING.

B. A Misguided Regulatory Leap Into the Internet Space

This Order bends over backwards to give the impression that we are not regulating the Internet by imposing a condition on IM. Even more clever, it asserts that this condition will avert the need to regulate, because it purportedly will kick open a robust competitive landscape and thereby avoid intervention later to tackle the effects of a dominant provider.

Perhaps. But all the qualifications in the world cannot escape the fact that this agency is asserting and exercising jurisdiction over a service and product that springs directly from the Internet, and the imposition of a condition, no matter how modest, is a regulatory act.

The Order asserts that the Commission has jurisdiction under Title I of the Communications Act. That Title does give this agency very broad authority over communications services, which easily encompasses much of the activity that takes place on the Internet. Indeed, without more, Title I could be interpreted as empowering the Commission to regulate chat rooms, e-mail services, peer-to-peer services such as Napster, and even the Internet browser market.

With regard to Internet-like services, the fact that we have always had Title I authority has not meant it was prudent to exercise it. Indeed, from the earliest days, the Commission has carefully drawn a distinction between communications services that it defined as "basic" or "telecommunication services" and "enhanced" or "information services." (24) The distinction was made as a matter of policy, not power, to limit or avoid regulation and to rely on competition for innovative information services, while regulating as common carriers the providers of basic or telecommunications services. This distinction took on greater import with the rise of the Internet, which was seen as the mother of all "information services." In addition, this distinction is the basis for a parade of pronouncements by members of this very Commission, that we do not, will not and shall not regulate the Internet. (25)

I have long been of the view that the telecommunications/information services distinction is, in the long run, untenable. (26) Digital, packet-based technologies will increasingly blur and obliterate the ability to make any rational distinction between the transmission of information and the information itself. Therefore, I am not critical of looking for ways to step beyond the distinction. I do, however, criticize the Majority for taking that step and thereby walking away from decades-long policies of declining to regulate services in this jurisdictional category, without any meaningful explanation, or even consideration of this significant turnabout. Rather, the Majority asserts that IM fits within a category under our jurisdiction, and lightly dismisses the need to discuss the nature of the service without conceding the traditional deregulatory implication of this categorization. The result is a regulatory foray across a border consistently held to be inviolate. This step is a very big one and should not be made in such a breezy manner and in the context of an adjudication, particularly to impose such a minor and questionable condition that rests on such a questionable evidentiary basis.

Taking the analysis and the remedy together, it is evident that the real driving force behind this condition is a preference by the Majority for interoperability as the market paradigm for IM services, indeed, perhaps for all Internet-based communications. The Majority declares that the public interest standard somehow compels interoperability, yet have no basis for that finding in the statute or the record. More startling, the Commission, with no particular technical, or business competence declares that elements of IM make up an "essential input for the development and deployment of many, if not most, future high-speed internet-based services that rely on real-time delivery and interaction." (27)

There may be a case for asserting our jurisdiction over IM services, and then finding that they must interoperate as a matter of law, though I doubt it. But such a grand conclusion should only be reached after very careful and thoughtful deliberations and full comment by a wide range of interested parties, which can only be achieved in a rulemaking proceeding. The record here and the limited comment are woefully insufficient for considering and anticipating the reverberations of our conclusions. This merger, involving only two members of the industry is not an appropriate vehicle for taking our authority where the Majority does today.

B. Achieving Interoperability Through Market Forces

Even assuming the merits of interoperability, which may be substantial, there is still a very central question: whether interoperability can only be achieved by government-intervention, or whether market forces will produce the desired result. I am concerned that in new and innovative markets, the government will be too easily seduced to intervene prematurely, given the initial excitement and promise (if not hype) of innovative offerings, the rapid pace of change in the market, and competitors' natural anxiety (if not panic).

Increasingly, the variables of digitalization, broadband and the Internet are combining to spurn entirely new products and services for communications. These innovation markets are marked by the fact that they are in their infancy and present challenges to understanding them. For example, there is usually scant experience with the new markets that these forces are just now spawning. The products in these markets may be technically novel, making it difficult to comprehend, and easy to exaggerate, or underestimate, their significance or the ability to offer competing services. And business models, business relationships and terms and conditions for the market have yet to form fully. In short, there is typically a period of extensive experimentation in developing markets. During this period, the lucky innovator will always be racing to take advantage of having created the market and to gain and maintain market leadership. Competitors, likewise, often will be struggling to respond to a new threat. Increasingly, one of their responses, even in the largely unregulated Internet realm, is to seek the assistance of the government either to intervene directly and impede the market leader, or to use the threat of regulation as business leverage with that player.

Given the infancy and necessarily speculative nature of these markets, it is easy to be seduced into believing that an ounce of early government intervention will prevent these markets from catching an anticompetitive cold. This view emphasizes how quickly a provider can gain market share and market dominance. Yet it is often overlooked that in the network effect, innovation environment players often fall and die a fiery death just as easily as they ascend (see the 2000 NASDAQ market), and the government should be careful not to let its imagination run away with it.

That said, the more important question, even when there is some general agreement about an operating or market paradigm such as interoperability or open standards, is whether the terms and conditions for those regimes are better developed in the market through negotiation and market responses, or by a regulator. Given the experience of "regulatorily-derived" terms and conditions (its plodding process, its high regulatory costs, its risk of distorting efficient development, its political compromises), rarely should we leap to regulatory approaches without compelling circumstances and strong confidence that the conditions are clearly absent for market resolution through competition, business negotiation and innovation. Moreover, it is hubris to believe that regulators can (better than businesses) craft the optimal terms and conditions to govern the fundamental rules for market operation, particularly where innovation is at a premium and new and novel technologies are at stake. The beauty of market mechanisms has always been that the give and take among competitors and consumers produces an optimal set of terms and conditions. To say that these mechanisms will not work with respect to video AIHS before we even know what these services will comprise seems to indulge regulators' fears, not to mention our eagerness to "look tough" at the expense of sober reflection on the inconclusive record before us.

The concern with premature intervention is also great where viable business models are still being explored. The Internet is a wonderful space, but producers are still struggling mightily to find services and approaches that will allow them to prosper. I am concerned about the government labeling aspects of market activity as anticompetitive before we even have a fix on the elements of a viable business. Notions such as proprietary assets and exclusivity can surely rise to anticompetitive levels, but they also are often the keys to profitability and viable business that allow producers to serve consumers effectively. The struggle for brand protection and strong copyright protections in the Internet space by established businesses is animated by that very same sort of concern.

Regulatory intervention can also divert companies from efforts in the marketplace to battles in the halls of government. When the government appoints itself referee, it provides a venue to which competitors can run to gain market leverage, and to appeal even the most minor market disputes. This puts the government in the game on an ongoing basis. I think companies and regulators delude themselves into believing a regulator can act surgically--a sharp quick cut--and then stay out. One searches past experiences in vain for such an example, and I am skeptical of our skill with the knife.

For these many reasons, I cannot support the Majority's decision to impose an IM condition based on this record.


1     In addition to dissenting from the Majority's Instant Messaging condition, I object to the Majority's decision to impose broadband open access conditions that may conflict with and prejudge issues in the Notice of Inquiry proceeding regarding broadband Internet access. See In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, GEN Docket No. 00-185, FCC 00-185, Notice of Inquiry 25-42 (rel. Sept. 28, 2000) (examining potential definitional, policy and regulatory cable open access issues). I concur in the conditions regarding Time Warner's relationship with AT&T, though I believe our concerns were substantially addressed by the Department of Justice consent decrees involving AT&T and MediaOne and the Federal Trade Commission consent decree involving AOL and Time Warner. See United States v. AT&T Corp., 2000 WL 1752108, *3 (D.D.C. 2000); see also In the Matter of America Online and Time Warner, 2000 WL 1843019 (F.T.C. Dec. 14, 2000).

2     See, e.g., In the Matter of Applications of Ameritech Corp., Transferor, and SBC Communications Inc., Transferee, For Consent to Transfer Control of Corporations Holding Commission Licenses and Lines Pursuant to Section 214 and Section 310 (d) of the Communications Act and Parts 5, 22, 24, 25, 63, 90, 95, and 101 of the Commission Rules, CC Docket No. 98-141, FCC 99-279, Memorandum Opinion and Order, 14 FCC Rcd 14712, 15197 (1999) (Separate Statement of Michael K. Powell, Commissioner, Federal Communications Commission) [available on the World Wide Web at <http://www.fcc.gov/commissioners/powell>]; Statement Of Michael K. Powell, Commissioner, Federal Communications Commission, Before The Subcommittee On Telecommunications, Trade And Consumer Protection Of The House Committee On Commerce On "The Telecommunications Merger Act Of 2000" (Mar. 14, 2000) (expressing personal discomfort with "a standard that places harms on one side of a scale and then collects and places any hodgepodge of conditions--no matter how ill-suited to remedying the identified infirmities--on the other side of the scale).

3    Order 151 ("[W]e find that the area of our concern is 'NPD [Names and Presence Directory] services' - interactive communication services which . . . depend on an NPD for real-time communication between and among users. . . . A more precise definition of the relevant market is not necessary here, where the Commission can accurately assess the competitive impact of the merger without such a detailed analysis.").

4    Media Metrix, a widely regarded Internet traffic measurement consultancy, reported in a November 2000 press release that although AOL Instant Messenger is still the dominant IM application in the Internet space, "Yahoo! Messenger and MSN Messenger Service each have accumulated approximately half the number of users as AOL Instant Messenger and have become the fastest growing instant-messaging applications in terms of overall users." See Press Release, Media Metrix, Yahoo! Messenger and MSN Messenger Service Are Fastest Growing Instant-Messaging Applications In The U.S. (Nov. 16, 2000) [available on the World Wide Web at <http://us.mediametrix.com/press/releases/20001116.jsp>]. AOL Instant Messenger had accummulated 21.5 million unique users by August 2000; for their part, Yahoo! and MSN, respectively, had grown their services to 10.6 million unique users and 10.3 million unique users. Equally interesting, to my mind, Media Metrix noted that approximately one-third of AOL Instant Messenger residential users also used at least one other competing IM application. See id.

5    Microsoft, one of the two significant IM competitors, "dismissed" the Media Metrix IM findings. See FTC Prepares Vote On AOL-TW Deal, Critics Seek More Conditions, Communications Daily, Dec. 12, 2000.

6     Order 175.

7    See Carl Shapiro & Hal R. Varian, Information Rules: A Strategic Guide to the Network Economy 174-76 (1999).

8     Id. at 187; see also William J. Kolasky, Network Effects: A Contrarian View, 7 Geo. Mason L. Rev. 577, 577 (1999).

9    Order 175.

10     To be clear, I do not dispute that the IM market could tip at some undetermined point in the future. But as I describe in greater detail, the underlying facts are inconclusive as to whether tipping has occurred, particularly with respect to the future hypothetical services contemplated by the Majority's IM condition.

11     Presumably, no IM condition would be needed if it is demonstrated, as I do below, that it is still quite possible that market forces will enable some competing firm to prevent AOL from becoming a dominant provider of the advanced IM services contemplated by the majority's condition.

12     Kolasky at 577.

13     Shapiro & Varian at 174-77.

14     See Press Release, Media Metrix, Yahoo! Messenger and MSN Messenger Service Are Fastest Growing Instant-Messaging Applications In The U.S. (Nov. 16, 2000) (Launched in 1999, both Yahoo!'s and MSN's IM product offerings have become the "fastest growing instant-messaging applications in terms of overall users" over the period of August 1999 to August 2000) [available on the World Wide Web at <http://us.mediametrix.com/press/releases/20001116.jsp>].

15    Id.

16    See, e.g., Yahoo! Companion (on-line description of Yahoo! content and feature on browser) (visited Jan. 11, 2001) [available on the World Wide Web at <http://edit.yahoo.com/config/download_companion>]; Yahoo! Messenger (on-line description of Yahoo! IM capability and integrated functionality like free Internet phone calls, Yahoo! Chat client, alerts for your stocks and Yahoo! Mail, news, weather, stock quotes, etc.) (visited Jan. 11, 2001) [available on the World Wide Web at <http://messenger.yahoo.com/>]; MSN Messenger Service (same) (visited Jan. 11, 2001) [available on the World Wide Web at <http://messenger.msn.com/>]; Press Release, Microsoft Corporation, MSN Reviewers Guide, January 2000 (visited Jan. 11, 2001) [available on the World Wide Web at <http://www.microsoft.com/presspass/newsroom/msn/guide/0100guide.asp>].

17    I am fond of recording bold technology predictions about the various industries over which the Commission has jurisdiction that, over time, proved generally overstated or absolutely incorrect and off the mark. For example, the New York Times, on the occasion of the 1939 World's Fair and the introduction of the black-and-white television, predicted that television "will never be a serious competitor for radio because people must sit and keep their eyes glued on a screen; the average American family hasn't time for it." And, in 1876, a Western Union internal memorandum forecasted that "[t]his 'telephone' has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us." Many of these failed technology predictions are now compiled in The Experts Speak. See Christopher Cerf & Victor Navasky, in The Experts Speak: The Definitive Compendium of Authoritative Misinformation 225-231 (Villard 1998).

18     Kolasky at 579.

19     According to Media Metrix, over 30% of both AIM and ICQ users already use at least one other IM or chat application. See Press Release, Media Metrix, Yahoo! Messenger and MSN Messenger Service Are Fastest Growing Instant-Messaging Applications In The U.S. (Nov. 16, 2000). See also id ("Instant-messaging applications are proving to be very popular with consumers . . . But their different features and lack of interoperability cause users, especially heavy users, to adopt more than one brand in order to keep in touch with all their friend and colleagues."). If the costs or difficulties of using multiple IM services were truly significant, presumably people would have begun to focus on only one IM provider, rather than continuing to use more than one.

20     See, e.g., Ex Parte Letter to Deborah Lathen, Chief, Cable Services Bureau, Federal Communications Commission, from George Vradenburg III, Senior Vice President, Global and Strategic Policy, America Online, Inc. (Sept. 29, 2000) at 1, 7-8 ("AOL is committed to pursuing industry-wide IM interoperability for the benefit of consumers, not competitors.")

21     Id. at 7-8.

22    See, e.g., Unsolicited Bulk E-mail (on-line statement of AOL's anti-spamming policy) (visited Jan. 11, 2001) [available on the World Wide Web at <http://www.aol.com/info/bulkemail.html>]; AOL's Privacy Policy (on-line statement of AOL's privacy policy) (visited Jan. 11, 2001) [available on the World Wide Web at <http://www.aol.com/info/privacy.html>].

23     For example, my discussion with my colleagues leads me to conclude that even the Majority would acknowledge there would have been many security problems associated with mandating immediate interoperability for text-based IM. For example, if AOL had to publish its operating protocols and accept and deliver all outside IM messages, hackers and users of unscrupulous IM providers would be able to masquerade as other users. AOL IM users would receive messages from people that they think are their buddies, but in fact are advertisements, spam, or possibly even messages from predators. Also, AOL users could find that hackers have been sending false messages in their names, creating its own set of problems. AOL today deals with these issues chiefly by using live monitors, to whom its users can report problems. It is not clear that AOL would be able to do this with messages that come from outside its system.

24    See In the Matter of Amendment of Section 64.702 of the Commission's Rules and Regulations, 77 FCC 2d 384, 428-40 (1980) (Computer II).

25     See, e.g., Remarks of William E. Kennard, Chairman, Federal Communications Commission Before the Summer 2000 Session of the National Association of Regulatory Utility Commissioners (July 24, 2000) ("[p]erhaps the FCC's most important decision--we decided to leave the Internet unregulated"); Remarks of Chairman Kennard Before the National Press Club, Telecommunications @ the Millennium: The Telecom Act At Four (Feb. 8, 2000) ("The Commission wisely withheld regulation of most advanced services. Similarly, we refused to apply legacy-style regulations to the new service of cable access to the Internet, relying instead on market incentives to keep multiple paths open to the Internet."); Remarks of Susan Ness, Commissioner, Federal Communications Commission Before the IRTS, The Net Effects on Communications Policy (or how the Internet and Convergence are Revamping Regulatory Regimes) (June 7, 2000) (in reference to technological developments, "[t]he FCC's policies of fostering competition, while taking a hands-off approach to the Internet and information services, have facilitated many of these changes").

26     In the Matter of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, FCC 98-67, Report to Congress (rel. Apr. 10, 1998) (Statement of Michael K. Powell, Commissioner, Federal Communications, concurring) [available on the World Wide Web at <http://www.fcc.gov/commissioners/powell/statements].

27     Order 128.