BREYER'S LEGACY — During his time on the Supreme Court, Justice Stephen Breyer authored and signed onto a slew of significant antitrust and regulation opinions that loom large over the cases against Facebook and Google today. His departure from the bench will mean the loss of serious antitrust expertise — a development that will sadden some traditionalists and cheer progressive antitrust activists that say change is long overdue. — Pro-corporate views: Breyer's views on corporate power shifted somewhat over the years, but antitrust experts point to his decision to sign onto Justice Antonin Scalia's 2004 opinion in Verizon v. Trinko as an example of his tendency to side with big business. A federal judge last year heavily leaned on that opinion, which defended monopolistic behavior, to dismiss the FTC's case against Facebook. "Breyer as a justice was fairly conservative on antitrust and regulatory issues," Sandeep Vaheesan, legal director at the anti-monopoly group Open Markets Institute, told MT. "I think his retirement will be good for antitrust going forward, specifically when it comes to holding monopolies accountable." Last year, Breyer authored the opinion that gutted the FTC's power to force companies to pay back consumers. (Facebook used that opinion to argue that the FTC lacked authority to pursue an antitrust case against the social media giant.) But he was also the author of the dissenting opinion in Ohio v. American Express, arguing that the court should have concluded that American Express' contracts with merchants were anti-competitive. That court decision was pivotal to the Apple v. Epic Games trial. Breyer's departure "makes the court more likely not to take antitrust cases," said Berin Szoka, president of tech-funded think tank TechFreedom. The court often leaned on Breyers' extensive antitrust background in court decisions, he added. — Google vs. Oracle: Breyer authored the opinion siding with Google in Google v. Oracle , the years-long copyright case that set new precedent in how U.S. copyright law applies to the tech industry. That decision was largely heralded by the tech industry. — What this means for the Senate: The much more imminent question is what Breyer's retirement will mean for the Senate Judiciary Committee's antitrust work. The selection of Breyer's replacement is likely to engulf the committee in a frenzied nomination process over the next few weeks or months. Nevertheless, committee aides, who spoke on the condition of anonymity in order to discuss ongoing conversations, told MT that right now there's no plan to delay future markups (such as next week's markup of the Open App Markets Act) or further action on the Senate's antitrust bills. "The Committee's plans will proceed," a Democratic aide with the Senate Judiciary Committee told MT. "We can both walk and chew gum at the same time!" TODAY: FCC TO KICKSTART 'BROADBAND NUTRITION LABEL' RULEMAKING — Commissioners will today vote to open a rulemaking that proposes eventually requiring broadband providers to clearly disclose to consumers just what they're paying for, including more upfront info about the thornier features of broadband service plans, like data caps and introductory rates. November's bipartisan infrastructure law directed the FCC to take action following more than a decade of pressure for this kind of expanded transparency. — Although the rule is still early in the FCC process, supporters say a "broadband nutrition" label could be a future boon for consumer awareness. But internet service providers will also want to shape what they're required to share. "The ISPs employ many regulatory attorneys and they do a very, very good job," Jonathan Schwantes, a senior policy counsel at Consumer Reports, told John. He described his own plans to aggressively push for the FCC to require the label: "It's a step beyond what's statutorily required, but we're going to advocate that this should be on every bill." New America's Open Technology Institute, which first suggested implementing these labels in 2009, cautioned against industry suggestions that the labeling rules be voluntary; OTI's Josh Stager said that would be contrary to statute. Asked about today's vote, broadband group USTelecom argued consumers already have the information they need to shop between competing ISPs and that U.S. broadband prices are declining in general. "We look forward to working on these measures, but the key is not to impose rules that are burdensome or counterproductive to consumers and providers," added the trade group, whose members include AT&T and Verizon. — White House is watching: President Joe Biden, in his competition executive order last summer, urged the FCC to kickstart such a rulemaking, and name-checked the issue at Monday's meeting of the White House Competition Council, which FCC Chair Jessica Rosenworcel sits on. Consumers will soon see "clarity in the actual price you'll pay for high-speed internet services," Biden promised at the meeting. But time for caveats: We're still a ways off from seeing these labels applied. After today's vote, the FCC's next step would be collecting rounds of feedback about how to structure the label and figuring out when to require its display and how to vet a given label's accuracy. Because today's vote is only to open the rulemaking, don't expect big fireworks or pushback just yet. SPEAKING OF BROADBAND … Commerce Secretary Gina Raimondo will testify Tuesday before Senate appropriators about how to implement the $48 billion in broadband dollars that the infrastructure law slated for her department, according to the office of Sen. Jeanne Shaheen (D-N.H.). The session will take place before the panel's Commerce-Justice-Science Subcommittee, which Shaheen chairs. — A little reminder: Shaheen was one of the lead negotiators who put together the law's $65 billion for broadband, in tandem with Raimondo and Sen. Susan Collins (R-Maine), who also sits on this subcommittee. As appropriators, these senators are now tasked with determining what resources to give the department and its National Telecommunications and Information Administration, which will helm the infrastructure law's broadband investments and is currently on a hiring spree. — Shaheen wants to ensure broadband funding is "distributed as intended," she told John in a statement. "There is bipartisan determination in Congress to enhance our high-speed internet capacity, and I believe we can continue to get important work done here."
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