By day, J. Gregory Sidak teaches at the Georgetown University Law Center and consults for Criterion Economics, which he founded.
Recently, Dr. Sidak submitted to the Federal Communications Commission the last of several declarations opposing approval of the plan by radio satellite provider Sirius to buy its sole competitor, XM. He summarizes his conclusions in an online National Review article.
Blawgletter couldn’t help noticing that, in the third supplemental declaration, Dr. Sidak presses a startling charge:
[A] serious antitrust problem facing XM and Sirius . . . has escaped notice in analysis of the proposed merger by journalists and equity analysts, and in public comments filed at the FCC. Professor Sidak explains that XM’s and Sirius’s public statements that they will not provide channels on á la carte basis unless the government approves their merger is a breathtaking admission of critical antitrust significance. "It is an agreement not to compete over the pricing and unbundling of currently bundled content," he explains. "Rarely do price-fixing cases contain such conclusive evidence of a meeting of the minds between two competitors to refrain from competing with one another."
But we wonder: Competitors in a duopoly agreeing not to compete? Plausible. Quite. Conspiring publicly — indeed, using the government itself as the vehicle for committing felony? Emm, ur, let us think about that one.
[Several hours pass.]
Okay. We believe it. Why? Because we think that deregulation in telecommunications has forced what once went on in private out into public view. The FCC retains an oversight role, but the good old "filed rate doctrine" no longer provides complete cover for anticompetitive conduct on which regulatees develop a Vulcan mind meld through the alchemy of announcing, filing, amending, and supplementing tariffs.
Like Poe’s The Purloined Letter (1844), they hide in the open.
Barry Barnett
