OA125: Net Neutrality and Antitrust, Part One

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Thomas: Today's episode is brought to you by eSight Eyewear, the revolutionary electronic glasses that let the legally blind actually see. Visit everyonedeservestosee.com to find out more.

[0:00:14] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn?

[0:00:31] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said.

[0:00:43] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow, you, sir, are a mouthful.

[0:00:57] The jury is instructed to disregard its own testimony. Your honor, the prosecution rests. Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the law offices of P. Andrew Torrez, LLC. For entertainment purposes, is not intended as legal advice and does not form an attorney-client relationship. Relationship. Don't take legal advice from a podcast.

0:01:30 Thomas: Hello and welcome to Opening Arguments. This is episode 125. I'm your host, Thomas Smith, that

[0:01:37] over there is your other host, Andrew Torrez, I think, if I have that right. How are you doing? I'm great, my mood has just improved greatly with that, uh, with that lovely introduction, so I think it's, how are you? I'm doing well, I'm a little discombobulated, apparently. I think it could be because, you know, it's Tuesday, and yet we've

[0:02:03] got a rapid response breaking news episodes, I think I'm just a little out of sorts, but I can understand that, that's not the holidays, the schedule, the, yeah, everything, yeah, that makes sense, because we are going to talk about net neutrality.

0:02:16 Thomas: Everybody, everybody has been asking us about that. I'm glad that we've got the relevant data now, where you're going to break that down, and then we're going to talk about antitrust. I have some questions about the AT&T Time Warner thing and the CNN part of that, I don't know if, if you're going to tell us, uh, once again, if that's Yodel Mountain worthy or anything, but, but we'll see. And yeah, so it's antitrust and it's net neutrality, and they're actually kind of related. So I can't wait to hear about that. But it's a breaking news Tuesday. I know that's not the normal thing, and I think that's why I forgot the name of my co-host,

[0:02:54] Andrew Torrez. What did I say? Andrew Torrez.

0:03:00 Thomas: Our laywer. At least, you know, in my defense, you type laywer all the time and it's your own job, so I

[0:03:07] I typed, I do, I type, I type labor all the time, and um, I also type E-P-S-I-O-D-E. Yeah, that's a, that's a common one.

0:03:20 Thomas: So let's get on with today's, and uh, we'll talk about net neutrality. Here we go.

[0:03:29] We all live in the age of information, we're sitting on the most perfect beach in the world, and all we can think about is, where can I hook up my quantum? Andrew, net neutrality, this question, a listener question from every listener, what's happening, what, uh, are we losing it, are we, what's gonna happen with our porn? First off, uh, that's, that's the question on everyone's mind. I mean, I mean, no, sorry,

[0:03:54] our streaming content. Yeah. So I assigned some homework from our Twitter account, which was to have everybody

0:04:01 Andrew: Go back and listen to Opening Arguments episodes 64 and 65. That was the first time we discussed net neutrality. And in particular, that was the Choose Your Own Adventure episode. And we talked about the consequences of one aspect of what's been lumped in with net neutrality, which is classifying internet service providers as Title II

[0:04:25] common carriers, right? And that's still something that you see. And my view on that is that that's a much more nuanced question than a lot of net neutrality proponents have

[0:04:37] been saying, right? So here's what happened, right? In 2015, the FCC, Federal Communications Commission, classified ISPs as Title II common carriers. As a Title II common carrier, that means they are exempt from regulation by the FTC, the Federal Trade Commission, and then the internet would be entirely regulated by the FCC. And as part of that 2015 order, that order promulgated three types of rules. The first were called clear rules, and those rules were no blocking, which is to say no ISP can block lawful content, application services, or non-harmful devices over the internet. The second was no throttling.

A person engaged in the provision of broadband internet access service shall not impair or degrade lawful internet traffic on the basis of content, application, or service, or the use of a non-harmful device, subject to reasonable network management. And then the third is the no paid prioritization, right? This is the, you can't buy a faster lane. And the specific rule says, paid prioritization refers to the management of a broadband provider's network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either in exchange for consideration, monetary or otherwise, from a third party, or to benefit an affiliated entity. So, pretty strong, that's, that's

[0:06:12] the, the first class, what, what we're labeled as clear rules. Yeah, yeah, the second, can I just clarify,

0:06:18 Thomas: So there's no, the throttling part, both applies to, like, me, like, they can't throttle my access, and does it also apply to, like, they can't throttle, like, Netflix

[0:06:30] or something, like, on the other end? Yeah, that's exactly right, so it says the throttling, is that shall not impair

0:06:36 Andrew: Or degrade lawful internet traffic, okay, so either way, absolutely right, yeah, that it can be from the ISP, uh, from edge providers to consumers, from the consumer with respect to their access lane, you know, this was the uh 2015 suit against AT&T, that they were unadvertisedly slowing down consumers' access when

[0:07:01] they reached, uh, certain. Right. So, yeah, it applies to both of those. And so those are the, those are the clear rules.

0:07:10 Andrew: The second set of rules were called no interference with edge providers. This is another important aspect of net neutrality. And the rule said, any person engaged in the provision of broadband internet access service shall not unreasonably interfere with or unreasonably disadvantage, one, end users' ability to select, access, and use broadband internet service or the lawful internet content, applications, services, or devices of their choice, or two, edge providers' ability to make lawful content, applications, services, or devices available to end users. And the idea there is that way, Comcast, if you had Comcast internet service, they wouldn't be allowed to interfere with edge providers that were owned by other massive conglomerates and block you

[0:07:59] from receiving them in order to prioritize their own edge providers, right? One news service or one streaming service. And then the third rule was the transparency rule. And I'm going to tell you that rule has been maintained. So we're not going to go into it. Everybody agrees on all sides of the issue, that person engaged in the provision of broadband internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its services, sufficient for consumers to

[0:08:30] make informed choices regarding the use of services. Well, these all sound like great rules that everybody should agree on, and they're enforced. End of story. Good night. Yeah, you'd think so, right? End of episode. I'm

0:08:43 Thomas: Walking out the door. This is all a great idea. There's no reason to not do this. We

[0:08:49] already did our happy episode on Thanksgiving, so this is a less happy episode. In May of 2017, under new FCC chairman Ajit Pai, the FCC voted 2-1 to reverse

0:09:02 Andrew: That order. And I'm going to link it in the show notes. That May 2017 vote had seven items that it put on the agenda. And one of them was eliminate what they called the vague internet conduct standard, right? That was the no interference with edge providers that I just read to you. And then also on the agenda was seek comment on whether to keep, modify, or eliminate the bright line rules set forth in the Title II order,

[0:09:34] right? That was the no blocking, no throttling, no paid prioritization, right? So they said, look, we're definitely getting rid of the rule prohibiting interference with edge providers. And so now ISPs will be able to interfere with edge providers. But we want to get comment on whether we should also get rid of wildly popular basic clear rules on net neutrality, right? Blocking, throttling, paid prioritization. So how did that go? Yeah, great. No, less great. On Wednesday, the 22nd, the

[0:10:11] FCC released a 200 plus page document, which is delightfully entitled Restoring Internet Freedom. Kind of an interesting view of freedom.

[0:10:23] And this 210-page document proposes eliminating the bright line rules as well. I love it. We're getting tax freedom, which means, you know, corporations

0:10:36 Thomas: Get just no taxes. And then we're getting health care freedom, which means the freedom to not have any health care. And finally, we're getting Internet freedom, which means horrible Internet. It's great.

0:10:49 Andrew: Which means, I mean, let's be really, really clear here. I mean, this is the sort of classical liberal definition of freedom, right? Which is to say it only counts as a restraint on your freedom if it's the government that does the restraining. So when it's a private organization that does it, it's perfectly fine. So it leads to absolutely absurd results. We've talked about this before in our episode making fun of libertarians. But seriously, libertarians carry around, some of them anyway, Penn Jillette does this, they carry around a little metal copy of the Constitution Bill of Rights that they keep in their jacket pocket so that it triggers the alarm when you go through the metal detector at the airport. Right, because, and look, like, I'm, I'm no fan of the, you know, security procedures at the airport. I don't, I don't want to be

[0:11:39] on record for that, but, but again, if it were a private company which said, before you get on our plane, you have to be wanded, or you have to put all your stuff through an x-ray machine, or you have to pass through a metal detector, but that's not an interference with your freedom, right? So it literally depends on, you know, is the guy

[0:11:58] wearing the uniform, does it have a government patch, or does it have a private, even if it's a total

0:12:04 Thomas: Monopoly they don't seem to care like even if There's no other way you could travel at all, but to have this private corporation like searching you, then it's fine. But if it's the government, sorry.

[0:12:16] Yeah. Well, because again, remember that most of this philosophy, you know, dates back to

0:12:22 Andrew: The 17th and 18th centuries. And so, right, like the idea is, yeah, if you had a weird like haberdashery,

[0:12:29] right, that had these bizarre rules when you came in to buy a hat, then the free market hypothesis says, well, somebody else will start, you know, a haberdashery without those rules. And like, I, you know, maybe that's true, but when you're talking about something where the cost of entry is buying a fleet of hundred million dollar aircraft, right? Like the idea that you could look at it and go, I'm going to start my own airline that doesn't have these intrusive safety, right? I mean, that's just not. Not, yeah.

0:13:01 Thomas: I'm gonna start my own internet. Here we go, everyone, let's start our own internet, we can compete. Yeah, well, all we

0:13:07 Andrew: Have to do is start our own ISP company, right? Like we don't have to start the our own internet, we just have to buy billions of

[0:13:13] dollars worth of servers and satellites, and you know, so and then, and, and by the way, we will have to do this and eliminate what is very plainly in our shareholders' economic best interest, right, which is interfering with edge providers to steer people to the edge providers that we own. So, yeah.

[0:13:32] Um, there is, in a 210-page document, would you like to take a guess at the number of paragraphs that are devoted to why they're eliminating the bright line conduct rules, the

[0:13:44] bright line, that was the one where it's, can't prioritize different edge providers, right? No prioritization, no blocking, like

0:13:50 Thomas: The actual reasoning? I'm, I'm going to guess they, like, don't even talk about it, it's just like, oh, like,

[0:13:56] they, yeah, so you're going with zero? I'll, well, I'll go with, like, one, maybe, like, they'll just say, oh, it was vague, and then that's it. Yeah. One

0:14:02 Andrew: Maybe is in fact the correct answer, on page 133.

[0:14:08] Paragraph 235 says, we eliminate the conduct rules adopted in the title two order, including the general conduct rule and the prohibitions on paid prioritization, blocking, and throttling. We do so for three reasons. First, the transparency rule we adopt, in combination with the state of broadband internet internet access service competition and antitrust and consumer protection laws, obviates the need for conduct rules by achieving

[0:14:33] comparable benefits at lower cost.

0:14:35 Andrew: Second, scrutinizing closely each prior conduct rule, we find that the costs of each rule outweigh its benefits. Third, the record does not identify any legal authority to adopt conduct rules for all ISPs, and we decline to distort the market with a patchwork of non-uniform limited purpose rules. That's it. That's their explanation. Um, and, and I, I have to say, again, as somebody who reads this kind of stuff for a living, right, like, that's a lot of nonsense, right? Like that's a lot of jargon nonsense that

[0:15:06] makes no sense right like it is um I you know stating as a fact we're achieving comparable benefits at lower costs, and then as rule, as, as point one, and then, we find that the costs of each rule outweigh its benefits, is just another way of restating that, without describing

[0:15:24] what those costs are. Yeah. Was there like a report or a economic evaluation, some numbers? No, none of that. No. What there is, is there is a statement that says this will quote, reverse the decline in infrastructure, investment, innovation, and options for consumers put into motion by the FCC in 2015. I don't know what that is supposed to mean, right? Like I certainly have not noticed a decline in innovation or consumer options for being on the internet. And I don't know, I mean, we are now, we've gone beyond the libertarian definition, right? Right. Like you cannot distort the word option to have it mean what they think it is going to be. Right. Like you can't. Right. By definition, what this will do. Right. So this will do, this will range from doing nothing. Right. Like maybe the backlash will be so great

[0:16:22] that ISP providers will not block. Yeah. Well, you know, maybe they won't. Right. So at best, this will do nothing. But if they do anything, what this order permits them to do, by definition, will reduce consumer options, because we're talking about not allowing consumers

[0:16:40] to get to certain edge provider websites, right? That's what it permits them to do, and I just don't. Yeah, I'm trying

0:16:46 Thomas: To think of the only argument. Could it be they're saying, like, maybe it'll fragment it so, like, oh, mom and pop startup can just provide you with Bing, the search engine. Like, that'll be the one thing they'll have, and then they'll, they'll have super, you'll have super fast access to Bing, and then other companies won't have, I don't know, I'm trying to think, like, different options.

0:17:11 Andrew: I can't, I can't come up with, with, with, what, I mean, I honestly can't, right? Like it says, the, the phrase you will see over and over again, uh, in this document, and in, uh, on the agenda is

[0:17:24] light touch regulation, right? Um, that is a phrase like freedom, that is sort of being bandied about by both sides, right? Like both sides say, we want light touch regulation, right? And the question is, what does it mean to have light touch regulation, right? And so proponents of the 2015 open internet

[0:17:49] order, which is what's coming under assault here, this, that's the net neutrality order, say that's light touch regulation, right? Like, look, we don't, we don't have a whole lot of of specific guidelines, but we say there are things that you can't do if you're an internet service provider, right, a couple of things,

[0:18:07] clear rules, uh, that are very, very difficult to segregate out, uh, and which have to deal with the fact that these internet service providers are vertically, vertically integrated companies, right? Like they own or invest in edge providers. They have the networks, they own the lines, they own everything from

[0:18:27] top to bottom. And so, you know, you want, the reason that even the current FCC doesn't want to make the public statement of, we don't want any regulations, right? They say, we just want a light hand with the regulations. And the FCC is saying, No, the existing regulations are too onerous and have led to a decline in

[0:18:53] infrastructure investment.

0:18:55 Andrew: And again, I mean, I can read the justification paragraph says, for almost 20 years, the internet flourished under a light touch regulatory approach. See, there's that phrase. During that time, the internet underwent rapid and unprecedented growth. ISPs invested $1.5 trillion in the internet ecosystem, and American consumers enthusiastically responded. Business developed in ways that government officials could not have fathomed even a decade ago. The internet became an ever-increasing part of the American economy, offering new and innovative changes to how we work, learn, receive medical care, and entertain ourselves.

[0:19:27] themselves, that's what they should, and honestly, the argument is, after 2015, that stopped. Yeah, and again, man, remember the internet? Gosh, we used to have it, it was awesome, that all ended under Obama. Yeah, and again, uh, you know, people live in a, in a universe of alternative facts, so, uh, maybe they can convince, I don't think anybody wants this, like, there's no, who have you seen? Well, I can tell, cable companies, right? Yeah, at AT&T wants, right, right.

0:19:59 Thomas: Right, but, but even, like, like, uh, if you remember the, the Republican health care bill, like, as

[0:20:05] much as they tried to do the fake news, like, oh, this is actually, this bill that takes away health care and repeals taxes is actually somehow giving you health care. It didn't totally work. Like, the approval rating was still really low. But, you know, will they be able to pull one over on voters with this? I don't know. It seems like it's a pretty easy campaign message to say, hey, Trump took away your internet. Like, he, he made it so that the, the big companies that he was going to drain the swamp of can't, you know, he made it so they can charge you more for certain things, or throttle certain things. I, I can't imagine anyone saying, like, yeah, well, I love that I have to pay more for Netflix, otherwise it shuts off, you know, like, I have to keep pumping quarters into my TV so that I can, like, still stream this show.

[0:20:58] the the only thing I can think of is that that segment and it's it's It's obviously over a majority of

0:21:04 Andrew: The American public, but that segment of the population already hates Trump, right? Like, I mean, you're talking about when you look at the only identifiable subgroup that still supports Trump, right? That is white evangelical Christians over 50. Yeah, and CEOs,

[0:21:23] like AT&T CEOs, like that's it. Yeah, and right, and the 12 men, and they're almost all men who run the 12 largest corporations in this country. Outside of those 12 people, right, who stand to gain financially from this, that subgroup is the group that's least likely to publicly identify as being on the internet, right? They're the least likely to be, you know, to have a Netflix

[0:21:48] subscription. They might have a Christian Pureflix subscription. I, but I feel like they're the most likely to not tell, uh, the surveyors that they're actually, uh, watching porn. Yeah, we, we, we have, we, we have actual data on that. Uh, this, our, our friends, Mark and Dan over at the how to heretic relay this to me that the hotel, cause you can get actual monitoring data on who orders pornography on their TV sets from hotels. And the highest group of that is in utah per

[0:22:19] capita, and it spikes during Mormon General Conference Week. So, you know, there is there is certainly some, uh, there's certainly data that suggests, right.

0:22:32 Thomas: That, you know, but the Mormons haven't been huge fans of Trump. Actually, it's it's the yeah, no, that's true, evangelical. So we'll have to see, but I, but I, I swear, even even them, I don't know how, if you explain, or even just get an internet meme going of what this is going to mean, I don't know how they could

[0:22:51] support it. It just seems impossible to me. It's more like just not noticing, right? Right, right. No, I think

0:22:57 Andrew: That's right. And so now I want to pivot to the what we can do part of this, okay? Because from May until now, what we could do was participate in the rulemaking process, process

[0:23:10] through the notice and comment period, right, and 22 million people filed comments on this proposed rulemaking. Oh, so they changed their minds, they read all the comments, they're like, you know what, this is a bad idea, 22 million people, that's a lot of people, so we've reconsidered the end. All right, yeah, well, actually, they did change their mind they changed their minds to, instead of think about whether to eliminate the bright line rules, to definitely eliminate the bright line rules. I am positive that those 22 million comments were not, uh, "You know what we need to do is get rid of the bright line." Yeah, that strikes me as implausible. "Hey, FCC, I just feel

0:23:47 Thomas: So badly that these companies are not making enough money, can you please find it in your hearts to please get rid of these restrictive rules so that they can finally make a profit is that, that's probably what most of them were. They're just mom and pop, just everyday average Joe, sending in a message like

[0:24:05] that. Yeah, probably. But so now, here this is is going to happen. This vote, the votes are there.

0:24:11 Andrew: The commissioners who back this are pro-deregulation, and it is going to pass. It's on the agenda for December 14th. There will be a minority report issued, but it's going to pass. And so what that means is that

[0:24:30] what's going to take effect immediately is that ISPs will be reclassified out. They will no longer be considered Title II common carriers. And so jurisdiction over enforcing internet rules will switch from the FCC to the FTC, the Federal Trade Commission. And in particular, they will be covered by the FTC Act of 1914, which we're going to talk a little bit more about in the next segment, and 15 U.S.C. 45, which says unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce are hereby declared unlawful. And so you might recall from our OA64-65 episodes, you can bring a 15 U.S.C. 45A

[0:25:20] lawsuit against an ISP for throttling your data without disclosing to you that they're going to do that. And in fact, that was the lawsuit Choose Your Own Adventure, FCC versus AT&T – FTC versus AT&T that we discussed in that episode. So that's where consumers need to put their focus right now, is lobbying the FTC to promulgate rules that will protect net neutrality from the basis that a lack of net neutrality, that these types of issues throttling, interference with edge providers, discrimination on the basis of content, paid access lanes is an unfair method of competition in or affecting commerce, or an unfair or deceptive act or practice in or affecting commerce. I won't lie to you, it's the Trump FTC just like it's the Trump FCC, and these or these agencies are staffed with people who believe as an article of faith that less

[0:26:28] regulation is is better, and no regulation is best. Why did they even need to go through any of this

0:26:34 Thomas: If their ultimate thing was the FTC should do this? Wouldn't that be the only thing they should say? It should

[0:26:40] be. Yes, I don't get it. Um, and and and the reasons I mean, there are there are a couple of reasons for is it like, just in case that part somehow doesn't go through, they still want to be assholes and get rid of the internet. Well,

0:26:53 Andrew: And there's a more specific reason, which is we have talked about how the Congressional Review Act allows the Congress to disapprove of agency regulations within 60 working days of their being promulgated. But there are previous regulations, and in this case, there are two separate, what are called memoranda of understanding, MOUs, between the FTC and the FCC, that basically say, hey, look, we're trying to figure out this common carrier thing. We understand that it's a little bit ambiguous. So we agree that the FTC and the FCC should work together to protect consumers and the public interest. And so therefore, we're going to do that to make sure whatever is within the respective jurisdictions of those agencies to protect consumers on the internet. And the most recent was a November 2015 memorandum of understanding.

I'm going to link it in the show notes. And that was not disapproved of under the CRA. And so that still has guiding effect, right? Right. Like courts can take that into account in lawsuits in saying, OK, look, like here's how the agency is saying it interprets its own rules. So so the ultimate end of all of that is, yeah, if this were merely kind of benign neglect, they would just say we're going to repeal Title two. We're not going to classify ISPs as common carriers anymore. FTC, you can take over. But I think the fact that there are all of these historical documents that would still have some effect, some interpretive effect in litigation, I think they wanted to, you know, scorch the earth and salt the ground to make sure nothing would ever thrive there

[0:28:46] ever again. Yeah. Well, hopefully you're able to load this podcast after, who knows if we'll be on

0:28:52 Thomas: The list of ISPs that they don't want to, or whatever URLs that they don't want to provide fast

[0:28:58] service to. So we'll see how this goes. Well, but you but you will get the AT&T version of. Oh, yeah. OK.

0:29:04 Thomas: Is there anything anybody can do? What what can we do at this point? Because I know John Oliver did. He was probably responsible for most of those 22 million comments. So that didn't work.

[0:29:16] Now. Now what? Yeah. Now what we need to do is lobby the FTC to generate

0:29:23 Andrew: Internet open. It's equivalent of open Internet rules and say, hey, the FTC has no they have no promulgated standards. Because you may recall, right, that was what we talked about in OA 64 and 65. Their prior standards were struck down under the CRA. And so there's nothing there to give guidance on how to interpret the consumer protection provisions of the FTC Act with respect to discrimination

[0:29:55] on the basis of content on the internet. How does that work timing they can do that so let's say this goes through

0:30:01 Thomas: And it's going to go over to the FTC, is there any like, delay, is there any like, protective period of, like, "Well, let's keep things how they are," or is it just like the minute that happens, every internet provider can can screw us until the FTC figures something out? Yeah, it's the latter. Okay, all

[0:30:20] right well it It is. And and again, you know, it it as you point out, this is something for which I I think and I hope that there will be political consequences. How do we how do we how do we is it just the president that could reappoint and just change who's in these commissions, or can Congress can 2018 help us with that, or is it just

0:30:45 Andrew: Nope. Nope. They're executive agencies. The president controls the appointment hiring and firing process.

[0:30:51] So, yep. No, this is truly an elections have consequences kind of moment. And, you know, look, there's not a lot of silver lining out there. But if you want, one of the things that I see and again, you know, a lot of that is interacting with fans of

[0:31:10] the show but even outside of that is, you know, people who say, well, I had no idea that all of these agencies did all of this stuff, and they all reported to the president, and the president has basically unilateral authority to promulgate executive orders and staff them with people to do this

[0:31:29] sort of thing. Like, I just didn't know it was like this. And, you know, at least now people know it's like this. That's not a lot of comfort, but it is the reality on the ground. So, you know, that's the two things that I would say is a takeaway away. Number one, uh, it's it's time we, if we want to, if you want to bring the fight to re-reclassify ISPs as Title Two common carriers, uh, the the time to do that is, you know, after the next election.

[0:32:00] But in the meanwhile – so I would say give up on that one, segregate it out, take the bright line rules and publicly lobby and request that the FTC develop standards and guidelines that are consistent with those bright line rules in order

[0:32:19] to protect consumers over the internet. They they can do this, and look, there's not going to be again, it's not going to be a receptive audience, uh, but it can't be worse than the existing FCC. So, you know, that's, um, that's that's where we are, that's where the battleground is shifting now from from the FCC

[0:32:38] to the FTC. Oh, man. Okay, well, I, uh, I'm so annoyed at this, I can't

0:32:44 Thomas: Believe it we'll have to keep an eye on it uh do what Andrew says, everybody. Call your local FTC. Wait, no, that's not how to... Knock on doors of the FTC. I don't know how to get to them. We'll figure that out.

0:32:59 Thomas: All right, Andrew, now we have to talk about the AT&T and Time Warner merger. I think this is somewhat related, but they're trying to... the DOJ is trying to block it. Was this the thing where, uh, it's alleged that Trump is kind of waging war on CNN, or or is that a conspiracy? Yes,

[0:33:18] yes, that is well, it, that is the allegation. Okay, so, uh, what I'm going to do, because this

0:33:24 Andrew: This part, I'm going to give sort of the background of antitrust rules. We're not going to get into, uh, the specifics of the allegations in this particular case, uh, but I want I'm going to link it in the show notes I want everybody has

[0:33:37] homework to read this case so that we can revisit it on Friday, because There is this really interesting situation now where liberals, people who are otherwise opposed to massive mega conglomeratization of businesses, creating a handful of businesses that are too big to fail, are all of a sudden finding themselves, uh, on the other side, right, being pro the merger of AT&T and Time Warner, and and the basis for that is the, is the allegation that, uh, that this is being done to punish Time Warner because Time Warner owns CNN and

[0:34:21] CNN obviously has been factual in its reporting, which, which is, uh, which has led Donald Trump, well, I don't want to have this be too much, much of a love letter to CNN, CNN certainly has its flaws, but, uh, oh yeah, yeah, no, absolutely, I mean that's, that's why I stopped, but like, it, it is the idea that CNN is a, is a propaganda, uh, right, right, right, entity is just, uh, is Is preposterous, so I, I get it, I certainly get the scrutiny, let's, so let's talk about the background and then see kind of how this fits in with what antitrust laws are

[0:34:59] And, and what a responsible Department of Justice ought to do, right? So let's give Trump's DOJ the Benefit of the doubt for purposes of this episode only, right? Until everybody reads the lawsuit that was filed.

[0:35:11] And then we'll talk about the specific lawsuit and how it fits in with these general principles on Friday. So what's Antitrust, right? Antitrust is three separate laws that were passed. The first is the Sherman Antitrust Act of 1890. That is codified at 15 USC one and the next couple of sections, one through seven. And it says every contract combination in the form of trust or otherwise or conspiracy in restraint of trade or commerce among the several states or with foreign nations is declared to be illegal.

So the government has the power to prevent – and that combination in the form of trust, the reason this is called antitrust is that historically the devices used under the law to Create, uh, mega corporations in the 19th and early 20th centuries were trusts, that law has changed, uh, and today the primary device is the merger, right, which is why it's described as a merger even when a 10 billion dollar company acquires, you know, a three million dollar company and absorbs it in and fires 90 of the, the absorbing company, right, the absorbed company, because it is the merger laws that that permit that, but historically it were the trust laws, and so giant corporations were

[0:36:33] were called trusts. And when you were opposed to that, you were anti-trust. And that's why the Laws are what they are. It's kind of a weird system because today we think of trusts as a particular device that is used to segregate assets from the assets owner. So there's your history lesson. The Sherman Antitrust Act said you can't have combination in the form of trust or otherwise, that means merger, or a contract to restrain trade in commerce by and between the states or with foreign nations. So anything that interferes in restraint of trade, whether by contract or whether by merger, became against the law with the Sherman Antitrust Act.

0:37:19 Andrew: Next was the FTC Act of 1914, 15 U.S.C. 41 through 58. We talked about that in the opening segment. The FTC is a consumer protection agency, and it prohibits unfair methods of competition in or affecting commerce and unfair deceptive acts or practices in or affecting commerce. And then finally, and that's what this particular lawsuit alleges, is the Clayton Antitrust Act of 1914-15, USC 12-27, which says no person engaged in commerce or in any activity affecting commerce shall acquire directly or indirectly the whole or any part of the stock or other Share capital.

And no person subject to the jurisdiction of the FTC shall acquire the whole or any part of the assets of another person engaged in commerce or any activity affecting commerce, where in any line of commerce or activity affecting commerce in any section of the country, and this is the key phrase, the effect of such acquisition may be substantially to lessen competition or to tend to create a monopoly. Monopoly. So you see how these are three different ways of kind of getting at one problem, right? Which is when you have monopolistic practices or when you have companies that are going to get together to potentially form a monopoly, we have differing

0:38:40 Andrew: Laws that we can bring into play, but all of which have the same goal, even if they have different standards, right? So you see that Clayton Antitrust Act 15 U.S.C. 18 standard is the effect may be substantially to lessen competition or to tend to create a monopoly. In practice, that's a higher standard of proof than just is this an unfair method

[0:39:05] of competition, right? You have to prove in court that the effect is to maybe substantially to lessen the competition or tend to create the monopoly. And you'll notice that the Clayton Antitrust Act doesn't differentiate between different kinds of monopolies. Right. So we have vertical monopolies and horizontal monopolies. And, you know, that's that's your. Yeah, I went to

0:39:31 Thomas: Business school for that. That's really tall versus really wide. No, it's up the supply chain versus like, so if you monopolize every step of like the production process or whatever it would be for a given industry versus if you just have all of the, own all of the companies that do one thing. So I don't know if that's the, it's been 10 years, no, 11 years since that, but since I learned that, but I believe that's what it is. Yeah,

0:39:56 Andrew: No, that's exactly right. And I will say that the horizontal monopoly, right owning all of the service that is being provided in one particular sector. That tends to be what the public thinks about.

0:40:08 Thomas: So like if you bought every single like auto manufacturer or like, yeah, versus vertical would be like, well, you've got whoever makes this component and whoever makes this part and whoever makes this, like all the way up the supply chain owning one way, but you don't own every company

[0:40:26] that does one of the things. You You just own enough of the supply chain to control it. That's exactly right.

0:40:32 Andrew: And the economic thought was always that there are pro-competitive reasons for wanting a vertically integrated company, right?

0:40:44 Andrew: So one of the first vertically integrated companies that was really, really successful, the reason why people of my generation overwhelmingly tended to own the Commodore 64 as the first personal home computer, and not any of the competitors is because Commodore owned the company

[0:41:10] that produced the MOS6502 CPU. And that CPU was an 8-bit CPU. It was used in the Commodore 64. It was used in the Atari 800. It was used in most of the competitors to the Commodore. But they could source it from themselves cheaper than other people could source it from outside. So for like the Apple, the Apple two line of computers also

[0:41:35] use the 6502, but they were five times as expensive as the Commodore for a lot of other reasons. But there's nothing wrong with Commodore owning MOS semiconductors and using

[0:41:48] that vertical integration to achieve an efficiency, an economy of scale. Going to produce tens of millions of Commodore 64s, better for us to own the manufacturing company that makes the CPU at the heart of this computer than for us to have to buy it from MOS, right? And then second source it. So the idea was there's at least a reason for thinking about why we want companies to be vertically integrated, whereas having companies be horizontally integrated, having having them control all of the consumer goods in a particular sector, that's what sort of strikes us as that's a restraint on trade, that reduces consumers' competitive options. And then I need to tell you, the Democrats record, if you think about this in today's terms, right, the Republicans are pro-business and Democrats are pro-consumer. The Democrats record on antitrust, in particular with respect to horizontal monopolies, is

[0:42:50] not what I would consider aggressive. No, we've talked about this before, because I agree with that. Nobody seems to care about this on either side. It's frustrating. And so, for example, we've talked about how I worked on the ExxonMobil merger, right?

0:43:02 Andrew: Oil and gas that was approved by the Clinton administration. The Obama administration approved with no serious constraints, the merger between Marriott and Starwood, which owns Sheraton. So Marriott owns Sheraton

[0:43:18] now. And that covered for a large part of the country that covers the overwhelming majority. I think you said last time that the current philosophy is the number one and the number three biggest companies can merge because there's the number two or something like that. Yeah. And oftentimes as a condition of the merger, right, it will specify, oh, hey, we need to give parts of companies

[0:43:43] five, six, and seven to number two. Yeah, to make it even bigger. It's like duolopolies or whatever. Exactly. So really good example of that is in the U and again, this is, this is a late Obama administration when Anheuser-Busch acquired InBev, right, to alcohol manufacturer. As part of their acquisition, they acquired SAB Miller, right? Right. And S.A.B. Miller gave up ownership of the Miller brands of beer by selling its 58

[0:44:14] percent stake in Miller Coors to Molson Coors. So. Right.

0:44:20 Andrew: So it's a it's a classic example of this. You had, you know, a giant conglomeration between two massive beverage manufacturers. And they said, look, we're not going to allow Anheuser-Busch to own all of the Anheuser-Busch brands. Right. Right. Budweiser and Bush and also own Miller and Coors. I mean, that is that that is 100

[0:44:45] percent of beer will become of right of American domestic mass produced lagers. Right. After that divestment, AB InBev's share of the of the market is 45

[0:44:58] percent. Right. So that's still staggering. Right. Right. One out of every two beers sold in this country is sold, the money from that flows to AB InBev. And I would add, for comparative measure, it was a $100 billion acquisition, AB of Anheuser-Busch of InBev. And their divestiture of the 58% stake in Miller Coors was a $12 billion sale. Right. So literally exactly 12%. So that's horizontal monopoly and the status of that regulation. Vertical integration has

[0:45:35] been largely untouched in 30 or 40 years. Untouched by the government or untouched by? Untouched by the government, right. And so, you know, a good example of, I guess a more timely example than my Commodore 64 example, I can't resist, was when Google purchased Motorola in 2011. And Google did that to start making Google phones, right? Like Google is not a manufacturer. They were like, oh, hey, look, like we're going to have a Google themed phone. We want to own a manufacturer in order to do that. We're going to buy up Motorola. And they did. The last major vertical monopoly that was the subject of litigation and regulation in

[0:46:19] this country was the breakup of AT&T, which was approved by consent decree in 1982 and entered into effect January 1, 1984. And so again, right, Ronald Reagan's FTC, Ronald Reagan's Department of Justice, and, you know, just sort of shows how far we've come. The issue with AT&T was concerns about vertical integration. Because back at

[0:46:50] the time, AT&T provided local telephone service. They provided long distance service.

0:46:58 Andrew: They owned the actual phones that were on your wall, right? Right. Like you may recall, you know, seeing in some 1970s movies, wired phones on people's walls. You didn't

[0:47:10] buy your phone. You actually leased those from the phone company and they owned the company that made them. It was a company called Western Electric. They own the lines. Right. That so it was truly vertically integrated all the way up and down. There was a delightful I actually looked for this in preparation for today's episode. And despite the fact that it is 41 years old, it is not publicly available.

[0:47:34] So if you have if you have Netflix, you can watch Lily Tomlin on the September 18th, 1976 episode of Saturday Night Live, in which she does this

[0:47:47] delightful commercial in which she says, hey, gracious hello from us here at the phone company.

0:47:53 Andrew: We serve everybody, everybody, and uh, for sometimes, you know, for no apparent reason, your phone goes out of order, you get charged for a call you didn't make, uh, because the phone system consists of a multi-billion dollar matrix of space age technology that's

[0:48:05] so sophisticated even we have no idea how, how it works, uh, but that's, that's not our problem, that's your problem, isn't it? So the next time you want to complain about your phone service, why don't you try using two Dixie cups with a string? And then the

[0:48:17] tagline that, uh, is stuck with me is the, "We don't care, we don't have to." The phone company, right? And that, and that was literally, like, that was the thought, again, even in Reagan's America. Yeah, it was that, that, that there's something wrong when, when a company owns, owns everything, such that they don't care, right? Comcast is a great example. Routinely voted one of the, you know, worst companies on earth from, you know, in terms of customer service and pricing and everything else. And yeah, like, you know, in your area where there's no

[0:48:54] other competition for cable, right? Yeah, we don't care, we don't have to. Today's episode is

0:49:00 Thomas: Brought to you by eSight Eyewear. Guys, I was absolutely blown away when I read about this sponsor because I didn't even, honestly, I questioned whether or not this could be real. But it turns out it is. It's this revolutionary technology. It's electronic glasses that let legally blind people actually see. It is one Time Magazine's best invention of 2017. It's an engineering breakthrough. I am so blown away that this exists. And it's been covered by the Wall Street Journal, Wired, CNBC, NBC, ABC, CBS, so many more. It's the only clinically validated wearable technology of its kind. It's designed specifically for the legally blind.

The technology has been the subject of an extensive clinical study led by Johns Hopkins University, University of Michigan, University of Toronto, as well as other leading low vision research institutions. Guys, it helps the legally blind to see what more could you ask for. It's incredible. I took a look at their Their website, everyonedeservestosee.com is the easy to remember URL. I took a look at some of the testimonials. I just wanted to read this one because it seems so cool. Jesse says, eSight has dramatically improved my education. I passed my first semester at college with a 3.1 GPA, and without eSight, I have no idea how I could have done it. With eSight, I not only

0:50:20 Thomas: See the board better, but I can actually use the device's camera to take pictures of it. End of quote. That is so cool. This is the future. That is so amazing. Jesse was able to see when he couldn't before, and also take pictures of the board to remember the notes. Really cool, exciting product. If this is something that you think might help either you or anyone in your family, anyone that you know, definitely check out everyonedeservestosee

[0:50:47] .com and learn more about it. AT&T. We don't care. We don't have to. We're the phone company. So the Justice Department actually first filed suit against AT&T way

0:50:59 Andrew: Back in 1949. That lawsuit took seven years to resolve, and there was a consent decree that basically AT&T won in its entirety. The consent decree in 1956, how's this for prescient, required that the company could not enter the computer market. Hmm. So because they owned Western Electric, it said, hey, you can't make computers. Well, in 1956, right, the market for computers was a little different than the market in the late 1970s. And so the government filed suit again in 1974. Again, Republican Gerald Ford administration, It was considered, it was continued under Jimmy Carter, and then continued again when Reagan took office. So another illustration of how it is not normal to just come in and sort of clean house and repudiate lawsuits that your predecessor

[0:51:57] president has filed. But so here's what the government was after. They said, look, we want to break up the vertical aspect of AT&T. We know, right, There's nothing we can do with respect to the natural monopoly for the provision of local

[0:52:16] services. But what we want to do is prevent them from owning all of the means of production that go along with that. And AT&T didn't want that. AT&T wanted to continue to own Western Electric. They wanted to own Bell Labs, which that Bell, that goes back to Alexander Graham Bell, right? That was the

[0:52:43] think tank – think tank is the wrong word because of the political consequences.

0:52:50 Andrew: But basically, it was the company started by Alexander Graham Bell to come up with innovations, right? And AT&T wanted also to enter the computer market in the late 1970s,

[0:53:02] right? So this – my Commodore 64 anecdote is not entirely anachronistic here. And so AT&T made a proposal and it said, hey, look, let us keep our vertical integration and let us enter the personal computer market, get rid of that provision of the 1956 consent decree.

[0:53:21] And in exchange, we will give up local telephone service. So we will segregate out local telephone service from long distance. We'll still provide the long distance. We'll still own the lines and we'll still own Western Electric and Bell Labs, but we're going to give up local phone service. And in 1982, the government okayed that plan with some modifications. So what they did was they created seven regional holding companies, which

[0:53:53] were referred to as baby bells. I'm going to talk about each of those super briefly. They also got the bell trademark, Right? The little blue logo with a stylized bell in it, which was dated back to the founding of AT&T. They got the Yellow Pages, which, um, again, you probably have no idea what Yellow Pages are.

0:54:12 Thomas: Oh no, I know. They're still delivering them for absolutely no reason. Like, I'll still just have this brick

[0:54:18] of useless paper have they stopped that yet I mean we'll see yeah that was a very lucrative

0:54:25 Andrew: Business pre-internet. And the regional companies got, uh, Yellow Pages, and they got 50, 50%, just under 50%, they have 47% of the ownership of Bell Labs. And then those baby Bells

[0:54:37] were divided up, each serviced a different region of customers. So you had 9X. Like the circuit courts. Yeah, yeah. And so 9X serviced New York, New England, Pacific Telsus, which was the Pacific coast, Ameritech, which is kind of the heartland, Bell Atlantic, my area, the Eastern seaboard, Southwestern Bell Corporation,

[0:54:57] the American South, Southwest, Bell South, which is what we think of as the solid political, all those red states, and US West, which was all the unpopulated void states in between Missouri and California. Immediately, one of the really interesting things about the AT&T breakup is that almost everybody on every side of the political spectrum agreed

[0:55:26] that it was a good thing, right? It was kind of weird. It was, again, the result of a consent decree rather than successful litigation or government action. So AT&T agreed to do this. And

[0:55:38] in the immediate aftermath, what happened was exactly what the pro-free market economists would hope would happen, right? Which is AT&T was effectively subsidizing their local service by charging people more for

[0:55:57] long-distance service. And so you probably don't remember this. I do. In the late 80s, it was, as this transition was taking place, it was common for, you had a very low monthly rate that you paid for unlimited local calls, but long distance was expensive. And it was one of those, like, you know, I remember, you know, having friends that I've met, it was like, okay, well, you're gonna make a long distance call, like no more than

[0:56:29] five minutes and you're charged by the minute. And it was super expensive. And the reason for that was AT&T's philosophy was they wanted everybody to use the phone. And so they subsidized, they artificially lowered the rate of the people paid for their local service by charging higher rates for the long distance service. And again, true monopolistic

[0:56:55] pricing there, right? Because where were you going to go, right? Like they were the phone company, they didn't care, they didn't have to. So as soon as that was severed, right, then you had competition on both ends, right? So you had the local phone service rates went up, but they had an incentive to try and bring prices down because people were not used to paying higher prices for their local phone service. And that was what really gave rise to Sprint and MCI and others that began

[0:57:26] competing to provide long-distance service. And so in the early 90s, you had extensive competition for choosing your long-distance service provider. And, you know, I remember, you know, there were the same kind of promotions that you see now on choosing your internet provider, right? Or choosing your internet and mobile data provider, right? But it

[0:57:52] really, so everybody kind of agreed that this was a good thing. And then just to kind of wrap up the history and get to where we are, the Telecommunications Act of 1996, again, Bill Clinton president, Republican Congress, allowed the regional baby bells to start to acquire each other. It's

[0:58:10] like undoing what they did. Yeah, absolutely undoing what they did. So Southwestern Bell renamed itself as SBC Communications in 1995. They bought a bunch of the Babybels, including Pacific Telsus, renamed themselves SBC Communications. Then they acquired AT&T in 2005.

[0:58:34] Hoist by their own petard. Exactly, right? The AT&T venture that essentially the model they decided to gamble on was we think hardware is going to be more important than service, which made a lot of sense in 1970s, the early 1980s, and obviously in the benefit of hindsight, not so much. So the local service providers became incredibly profitable. SBC reacquired AT&T, purchased, merged into AT&T in 2005 and took

[0:59:13] over the name of AT&T, became AT&T Inc. And that's where they've been ever since. The new AT&T acquired Bell South. So AT&T now owns the original Southwestern Bell. It owns Bell South. It owns

[0:59:33] Ameritech, which is in the Midwest, and it owns Pacific Telsas. So it owns almost all of the baby Bells. Verizon owns 9X and Bell Atlantic. Uh, and, and so you have this kind of, uh, massive duopoly right now with respect to AT&T and Verizon in terms of the integration of, uh, local long distance communications, hardware services we're in the we're we're almost back to the pre-1984 world If AT&T were to acquire Verizon, that would put us

[1:00:10] back. That would completely undo everything. I'm sure it'll happen in this White House.

1:00:16 Andrew: So with all that in mind, the question is, so should AT&T, which owns all of that stuff and also is a massive internet service provider, right? We haven't talked about that aspect, but that's gone hand in hand, right? With the provision of long distance service, that remained a core AT&T business. There was some competition from satellite providers, but we were able to undo that because AT&T was able to acquire DirecTV. So they own DirecTV. They own a tremendous amount of ISP lines. They own satellite internet. Should they continue that vertical integration by being able to acquire Time Warner, which provides a substantial amount of content over the internet? That would be the background. That's the question that I would ask,

[1:01:06] independent of, right, is this, does Donald Trump have a feud with CNN, right? How do you feel about essentially undoing the AT&T breakup and now sticking on top of that, this

[1:01:18] massive amount of content that is delivered over AT&T equipment to AT&T customers? And that's where we're going to pick it up on Friday. Oh, all right. Little cliffhanger there.

1:01:31 Thomas: So we'll have to see. But thanks for that history lesson involving something called a telephone. I don't, wasn't, you should have defined your terms a little more. I'm not sure what that is, but okay. It's like when my, you know, when my cell phone is plugged in, that's like what a telephone, something like that. I don't know. Yeah.

[1:01:49] Yeah. It's kind of like that. It's so funny how different things used to be. I remember the, I remember the portable telephone, which was just, it had the big antenna and you could take it six feet away from the base that it lived pretty much. I remember

[1:02:01] that. We had a variety of, uh, cordless, uh, phones in my

1:02:07 Andrew: House growing up. Uh, and the, the antennas on them, uh, I'm going to use

[1:02:14] the passive voice because I was about 10 at the time would break. Fake. Um, yeah, yeah, with with repeated use and they were like the old telescoping radio antennas on on cars if you've ever seen those in

[1:02:26] old movies. Like you had to pull out this big metal antenna and they would bend and, and yeah, and you could just about wander through a two-story house, uh, and the, and the quality would degrade the minute you went up the

[1:02:39] stairs, but uh, but at least you weren't on the uh the coiled pigtail line. Good times.

1:02:45 Thomas: Good times. And with that, uh, we've got to go to our favorite part of every episode, which is Patron Thanks. And, uh, we give our Patron Thanks to JT Star, Mike Hogan, Satan Swampy Asshole, I think that might be a repledge at, less, or or else, uh.

[1:03:04] I've heard from Safe Satan Swampy Asshole on my show, I don't know. Yeah, no, I think it's a real good, so, so thank you. A special thanks to those who come back. Right, Hivik, thank you Hivik's, uh, S Sirdesai.

1:03:16 Thomas: Chapman, Jon Ownbey, and Maxwell Skipworth. What a, what a rich, uh, British, uh, Maxwell Skipworth, uh, the second, I hope there's a, the second.

[1:03:29] There. Thank you guys for being new patrons. Yep. And thank you to Tim Marsh. Thank you, Drew Curry.

1:03:35 Andrew: Thank you, Raymondspecilties.com Custom Survey Gear. Thank you to an interesting

[1:03:41] combination of letters. I'm not kidding. This is F-H-V-J-X-R S-T-P-H-Y-F-E-E. That cannot be pronounced without, I guess, my taking advanced Klingon. But.

1:03:54 Andrew: Uh, I'm hoping that that was someone listening to the show who was so mad at something that they just pounded the keyboard, came up with those letters. But thank you. We will read your letters on the air. Uh, thanks to Ben. To.

[1:04:06] timothy stoll and thank you to casey with a k excellent uh hope you guys enjoy the bonus content oh

1:04:12 Thomas: My gosh, we're right up at the end of the month again, so I guess there's more Law'd Awful Movies and, uh, in a, in a Q&A to come. So, yep, with that said though, let's go to our weird bar exam. Uh, I, I don't know about this one, we'll see. That the questions are so much different now that I'm, I'm having trouble getting into the mindset of the questioner. You know, it's not, I, I feel like I really had a rapport earlier with the other.

[1:04:37] one. But we'll see. Maybe I still pulled through. Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:45 Andrew: So, Thomas, this question was about standing. And this was involved a 10-tucky statute that enabled in-state residents to get free college while out-of-state residents had to pay the non-resident tuition rate. And, um, and the question was, uh, when the state moves to dismiss the case, should that motion

[1:05:10] be granted? And you eliminated, uh, basically three answers for, For your last chance. You, you, you first eliminated C, a no answer. No, because amicus curiae briefs have been filed. Uh, that's a really, really good elimination. Nation, um, the fact that amicus curiae briefs

[1:05:29] are filed in a case, uh, has no effect on mootness. You cannot, uh, preserve uh, an advisory opinion, uh, just by filing amicus briefs. If that were the case, then, uh, Jill

[1:05:42] Stein could have, uh, brought her recounts in Michigan. Right, like you would have just, you know, you could, you could get courts to render advisory opinions all the time. You would just be like, okay, we're gonna bring this lawsuit, and, you know, I'm gonna contact my friends at the Alliance Defending Freedom and tell them to, uh, to file an amicus brief that says they're really, really interested in it.

[1:06:00] So, so good, good elimination on C. Thank you. And then you eliminated, uh, you eliminated the yes answers.

1:06:06 Andrew: Yes, because Sebastian is now a three-year resident, and yes, because Sebastian lacks standing, I

[1:06:12] think, and you said it's really, really difficult, like the same thing, so I didn't know, like, if that was where I was gonna go with it, I didn't know which one to, yes. Yes. Um, and, uh, there is the differentiation there is really hairline, uh, and would not come into play in this case. Standing includes, uh, the doctrine of mootness, right? So in other words, you may have standing at the beginning of a case and then lose it because the controversy becomes moot, uh, which is what A is implying, right? It's implying, yeah, he had standing, but he's he's now been there

[1:06:50] three years, so now he doesn't. Oh, so mootness is slightly different than standing? Is that what you're saying? Yeah, it's a little bit different because you can lose it. It's better to have loved and lost than never to. Precisely.

1:07:02 Andrew: So you eliminated both of the yes answers. That leaves no, because there is a live controversy. And I am pleased to tell you, your winning streak continues. Jeez, I'm on a roll. There is a live controversy. Sebastian has standing. Case is not moot. Um, and, uh, and the, and here, uh, because, uh, Sebastian has become a three-year resident, uh, if it were just him in his individual

[1:07:27] capacity, uh, you, you might have an argument, uh, that, that the case is now moot. Uh, but the class action is being brought on behalf of all folks who were similarly situated, uh, and their claims are not moot. There are lots of people who are out of state, uh, and the court has an interest in hearing their claims, uh, you, you pointed out this goes beyond the scope of

[1:07:51] the problem, but this is, uh, I think bonus points to you times. Um, you, you, you pointed out that Um, there may be a problem with Sebastian continuing to serve as a class representative, and that is a federal rule 23 requirement, which we have discussed on the show. Way beyond the scope of the problem, I think.

[1:08:10] You're giving me credit, I did not even, do I don't remember saying that? That sounds, I thought you did, but in any event, yeah, no, definitely good, uh, 1.5 points there we go, uh, so, uh, so congratulations, you got it right, uh, and for the right reasons, so, uh, well, there you go. All right, thanks Sharon for feeding me the easy questions.

1:08:31 Thomas: Yeah, they're a little different, but, uh, but yeah, it seems like I'm doing okay. So what am I at now, 50 or

[1:08:37] what, how many have we done, 52? 31 of 51. Oh, okay, well that's easy to remember. All right, well Uh, oh, and we'll have to throw it to the time machine, Andrew, future Andrew, who is

[1:08:49] uh, this week's lucky winner. Yeah, this week's lucky winner is Frank Dollar Hide, I believe.

1:08:55 Andrew: This is a two-term winner, uh, he is at Son of Sam Hayne, S-O-N-O

[1:09:02] -f-s-a-m-h-a-i-n on Twitter, who says D, because Tentucky is a Tenpublican state and they have a fetish for carrying things to terms, thus court cases get

[1:09:15] seen through to the end. Oh, I like that. I hopped aboard your time machine to be here for this one, because that's a great answer. Yeah, thank you, Frank. Uh, everyone, uh, give a Son of Sam Hayne a follow on Twitter. That person deserves unending fame and fortune. That is a great answer. I totally

1:09:34 Thomas: Agree. All right, well, that's our show. Uh, thanks so much, Andrew, for the nice quick turnaround on the Newsworthy Tuesday, above and beyond, I think you earned extra credit too, so, oh, thank you. Uh, and then thanks everyone for listening. Thanks most of all to our patrons at patreon.com slash who literally make the show happen. Thank you. Check that out. And we'll see you on Friday for another back-to-back Newsworthy rapid

[1:10:00] response episode. So we'll see you then. Stop breaking the law, asshole!

[1:10:08] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

[1:10:57] This podcast is a production of Opening Arguments Media LLC. All rights reserved.

1:11:05 Thomas: That over there's your other host and your

[1:11:10] That's probably the first time, yeah, that's probably the first time I've ever messed up this part of the show.