Saturday, 22 July 2017

Highlights of second day's play

The second day of the Commerce Commission's Competition Matters conference led off with Richard Feasey's keynote address on the latest tectonic shift in the telco markets - where the underlying physical infrastructure will still be owned by what's left of the old traditional telcos but will be largely a 'dumb and blind' set of gear, operated and run by a new generation of internet service providers. He talked about the implications for regulation, especially around the incentives for the infrastructure owners to keep upgrading the gear, and how hence and otherwise governments were taking a closer interest in how to keep the networks in reliable shape.

Linked to that, he also felt that competition was playing a smaller role in the sector, partly because it hadn't delivered all the (maybe unrealistic) expectations placed on it earlier, and partly because competition has a fairly fragile hold on the public and policy mindset at the best of times. I'm not entirely sure he's being fair to the potential scope for competition - well, I would say that, wouldn't I - when even tough competition nuts like the 'last mile' of copper access to your house may be yielding to things like fixed wireless. In this area, however, you'd be mad to make any strong futurist predictions.

The consumer protection end of the competition policy spectrum isn't usually my bag, so the panel discussion 'Browser beware' on the risks of online buying and selling was unexpectedly interesting. John Dixon QC spoke about how the law is adapting precedents set in pre-digital days for modern circumstances, which was an unlikely springboard for the witty speech John actually gave (complete with domestic rhinoceros). Anne Callinan also spoke to the law, particularly around whether it can catch digital behaviours as occurring "in New Zealand", and left me (and others) wondering why the extra-territorial reaches of the Commerce, Fair Trading, and Consumer Guarantees Acts aren't lined up with each other. And Jon Duffy spoke about how platforms like his TradeMe try to keep trade legal and honest, partly by working with the myriad of product regulators (such as Medsafe) and partly on their own initiative (like making car dealers disclose when imported cars have been write-offs in their home country).

Then we got to choose from the menu. I went to Professor Michal Gal on 'Competition policy in small markets'. She went through the research showing how small and remote economies suffer competitive disadvantages of scale, and some of the responses they can adopt (particularly exporting, and especially high-value niche exports). From a regulatory point of view, she said, a small economy is going to be in a tight spot (and as commenter Professor Ralph Winter pointed out, will be also suffering from diseconomies of scale in the regulatory resources available): there'll always be pressure to allow mergers to get closer to scale levels of efficiency, but potentially at the expense of reduced domestic competition.

She was certainly no fan of a 'national champions' approach, and she suggested - an idea I'd never thought of, but seems sensible - that if nonetheless you're backed into the corner of allowing uncomfortable levels of industry concentration for efficiency reasons, maybe you ought to mitigate the domestic competition issues with behavioural undertakings (which as you likely know the Commission can't currently accept). And she also said that in that high-concentration case you'd be even more concerned to ensure that 'abuse of dominance' provisions are effective: s36 policy analysts within MBIE, please take note. She's also a big fan of 'market studies', and indeed her journal article survey was one of the resources I quoted in my little quest to assist the case for introducing them in New Zealand.

My next choice was the panel on challenges in telco markets. A short post can't do justice to a very full session so I'll just pass on a couple of thoughts. Professor Stephen King had some (typically?) provocative ideas: why, he wondered, are we all relaxed about the vast store of data the credit card companies hold about us, but when Google holds it, it's suddenly a federal case? And do we - us competition wonks - even know if the highly personalised pricing online companies can show us poses any competition problem at all? Sure, we absolutely hate it when we rumble someone making off with all our consumer surplus, but is it an overall welfare problem? And I was taken with the work of Dr James Every-Palmer QC -  here's a bit of background on his Law Foundation project - who's been beavering away on whether regulation is ready for today's world of rapid tech change, and he's found a nice way to approach it by generalising from the impact of the smartphone.

And then I opted for George Yarrow's 'Regulation in small markets'. My heart sank at the beginning when I found that it was going to be largely about Guernsey and a bit about the wider (but still tiny) Channel Islands group: what's the good of a sample of one from the set of micro-states? I needn't have worried: an excellent general principle came out of it. I'm not sure whether the wording came from George or from Andrew Riseley, general counsel on the regulation side of the Commission, who was the commenter on George's presentation, but what smaller country regulators should do is LNBTW - a Limited Number of Biggish Things Well. And Andrew suggested that in our own #8 fencing wire way, we'd been doing that. Two good examples: the 'initial pricing principle' in telco regulation, where we use the price of a service overseas as a quick (and in my view effective and practical) first stab at the local regulatory price, and 'default paths' for electricity lines businesses that avoid the whole intricate company-specific price control machinery.

We reassembled for the final plenary panel session, 'The anti-competitive potential of industry groups', where the Commission's Katie Rusbatch used a clever hypothetical example (New Zealand nuclear power companies getting together in response to news of a levy on their industry) to explore what is or is not okay to talk about or agree on. The short answer is, be very careful - even (as Professor Spenser Waller suggested, and not entirely in jest, either) to the extent of making an ostentatiously dramatic exit from iffy industry meetings. There are airlines all over the world ruing that they didn't do the same when the agenda got to the item on air cargo surcharges. And don't think it couldn't happen to you. The industry association economist who gets up and does the supply and demand forecasts for next year almost certainly doesn't mean to facilitate collusive output management, but it may not look like that in the High Court.

Another really good conference: it's been a very useful initiative by the Commission, and highly popular. Too popular to be held in Wellington, maybe - I gather the constraint on attendance (and the resulting waiting list, and the fairly crowded room at Te Papa) is the absence of any larger venue. I suppose the good news is that Wellington, unlike some cities, hasn't lumbered itself with yet another white elephant conference centre. But the bad news is that it can't quite handle this size of event, either.

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