Skyfone revisited

Last week's Law and Economics Association of New Zealand (LEANZ) seminar in Auckland, 'Lessons from the Sky/Vodafone Merger (from an Economist and a Lawyer)', paired Victoria's Dr Bronwyn Howell (the economist) with Russell McVeagh partner Sarah Keene (the lawyer), and a highly productive evening it proved to be. Both presentations are now up on the LEANZ site (Bronwyn's, Sarah's).

Bronwyn led off: she was convinced that the Commerce Commission was wrong to decline the merger (all the details of the Commission process are here).

The Commission's view was that the merged entity would leverage Sky's market power in content into the market for broadband supply, foreclosing rivals' ability to compete. I could see the logic, though as in many of these cases you do wonder whether the up-front consumer benefits (eg from deep bundle discounting) are worth more than the costs of any later potential squeeze on competition. I'm not wholly convinced, for example, that the ACCC was right to stop the Aussie supermarkets giving their shoppers big discounts on petrol.

Bronwyn argued first of all that the Commission's foreclosure concerns did not take into account that Sky and Vodafone had already been bundling since 2009 on a contractual basis, yet foreclosure hadn't happened. I'm not sure this was a killer argument, as I'd wonder whether the contractually available bundles were earth-shatteringly attractive, either to consumers or to internet service providers (ISPs). For example, for some of the time since 2009 these contracts came with restrictive 'key commitments'  for the ISPs - restrictive enough, in the Commission's view, to have likely breached s27 of the Commerce Act.

But Bronwyn followed up with other arguments. She argued that the markets had been wrongly defined as markets for single products (content and broadband) when the right market was a market for bundles. And if you looked at bundles, she said, then there are different ways of approaching the competition implications of bundling, depending on the types of bundling. In models that best describe what has been on offer in New Zealand, foreclosure looked either unlikely or impossible.

Better still, she actually modelled, using a simulation, how some of these bundle markets would play out, and demonstrated that far from being an uncompetitive leveraging to foreclosure, total welfare could well be greater with bundling than without. I really liked this: we get too little simulation and too little econometric analysis in merger (and other regulatory) decisions, even though the availability of data and the quality of the modelling tools are getting better all the time.

Sarah's legal perspective was less on the merger itself (where Russell McVeagh had represented Spark in arguing against a clearance) and more about what it implied for merger policy more generally.

She had three big points. One was that the legal test for a "likely" post-merger substantial lessening of competition (SLC) - a legacy of the Woolworths/Warehouse cases - is too low. As she said, "In practice it means, “is there sufficient evidence to support a prima facie case of a risk that a substantial lessening of competition might arise”?" And it certainly came as a surprise to the non-lawyers in the room that "likely" does not mean "more likely than not".  She preferred something more like the Aussie Metcash test, which talks about a "commercially relevant or meaningful" SLC  rather than a theoretical but remote possibility.

The second was that binary clearances/declines are blunt instruments and that we would be better off with a system that allowed for approvals subject to behavioural undertakings (which the Commission currently can't accept, under s69A of the Act). Everywhere else we'd normally compare ourselves with can either accept undertakings, or has regulation in place to prevent content lock-ups like Sky TV's portfolio of premium sports rights. Going by the questions afterwards - and my wife's similar reaction when I told her about the seminar - content lock-ups also bothered quite a few of the attendees.

And her third point was about the time it took to get to finality - "Time kills deals" - and how current processes around (for example) confidentiality and disclosure could be reviewed to get the timetable more aligned with marketplace requirements.

Sarah's presentation reminded me that there's now a fair bit of Commerce Act stuff accumulating in the new government's competition in-tray. The relevant bits of the Labour Party election manifesto proposed reviewing the Commerce Commission "to determine greatest areas of need and potential for enhancing its capabilities"; a code of conduct for the supermarkets (like what the Aussies have); reviewing s36 (abuse of market power), which again the Aussies have already dealt to; and criminalising cartels. Sarah would add revisiting s47 (the likelihood of an SLC) and s69A (behavioural undertakings). And as well as supporting s36 and cartel criminalisation I've suggested freeing up the Commission to do market studies, and removing the shipping lines' over-friendly cartel treatment. I spent a fair bit of the last government's period in office bemoaning the slow progress of reform: I hope this new one gets a faster move on.

In any event another very interesting seminar. Well done to both speakers, to the organisers - Andreas Hauser for an earlier outing over the fences in Wellington, and Richard Meade for the Auckland one - and to Russell McVeagh for hosting and sluicing. These events wouldn't happen but for generous corporate hosting.

And they wouldn't get very far without your membership subs, either. So pop along to the LEANZ membership page and hand over your $75, or $50 for students, and get set for 2018.

What did we learn?

Earlier this month I posted what I hope will be my last tiki tour of some Special Housing Areas (SHAs) near our place. And at the time I said I'd have a go at trying to put some figures on the effectiveness or otherwise of the whole SHA experiment.

I've had a look, and there's good news and bad news.

The bad news is that, using MBIE's latest Auckland Housing Accord Monitoring report (available here, with all the previous ones), I can't tell whether the SHA experiment made a difference.

There were 5,527 building consents in the SHAs over the October '13 to June '17 period covered by the report. That made up 16.4% of the total 33,639 consents issued. But whether you should think about this as 'big' or 'small' isn't obvious, because you don't know how many of these SHA approvals would have happened in any event, and were merely shifted from one box (ordinary consent) to another (SHA consent).

You can't tell whether there was any net addition from the SHA initiative. Nor can you tell (although this was one of its objectives) whether the SHA consent process sped up development. To date, 3,105 dwellings have been completed in the SHAs: the report says "The 154 Special Housing Areas are expected to eventually supply over 66,000 dwellings or sections over 20-25 years". At the risk of sounding snarky, this doesn't look like lightning progress towards that target.

I'm prepared to believe that SHAs may have facilitated some particular, large projects. As the graph below shows, more than half (56.6%) of all the SHA consents were in just 8 of the 154 SHAs (the 8 with more than 300 consents). If they were instrumental in getting the Hobsonvilles underway, excellent. But again it's hard to know whether the counterfactual is that Hobsonville would have gone ahead anyway, or faster without jumping through the SHA hoops.

If I was facing a firing squad and had to guess to save my life, I would guess that the SHAs were an intrinsically nifty idea (faster consents for helping with social objectives) but that (a) the planning streamlining may have been more apparent than real (b) the dollar give-up by developers to meet the social objective became too expensive in a roaring bull market and (c) some developers weren't going to be swayed by anything (SHAs included) until they saw how the Auckland Unitary Plan played out. Goodish plan, somewhat sidelined by events. Story of all our lives.

And the good news?

People gave a new idea a go, in an area that badly needed moving along. It was an experiment. And we need more experiments like it, in housing and across the board. Not that our oppositional political structures are well suited to running them: we haven't exactly got a system that tolerates "mistakes" or "failures", when in reality they're nothing of the kind. They're opportunities to find out what works and what doesn't.

In that light, though, if you're going to run experiments, as you should, you have to figure out beforehand, in some detail, how you'll know whether the experiment was a success or not. Sometimes it's obvious - the laboratory explodes - but often it isn't. In the case of the Auckland Housing Accord, progress towards consent targets was not an adequate metric. It needed some sort of control group comparing SHA and non-SHA volumes and speeds. My little trek around Browns Bay but writ larger, and with a budget. And it would have been useful to get inside developers' heads to see exactly what mattered most to them.

Market power?

There's a fair head of steam building overseas to "do something!" about the allegedly overweening market power of the FAANGs - Facebook, Apple, Amazon, Netflix and Google.

Some of it is entirely respectable analysis. Last year, for example, President Obama's Council of Economic Advisers came out with an influential report, 'Benefits of competition and indicators of market power', which was well argued and reasonable. This graph from the report, for example, has got a lot of airtime (including an outing at this year's Competition Law and Policy Institute annual workshop).

As it shows, there's a small group of companies, which includes the FAANGs, who are doing far, far better than everyone else and bagging quite remarkable rates of return on their equity (ROEs). It's not surprising that they've attracted attention from people genuinely concerned about how they have achieved these results, about what they are doing with the market power they've created - the classic being the European Commission's big fine last month on Google for allegedly illegally discriminating against competitors in online advertising - all the way down to assorted ambulance-chasers following the money. There have even been proposals that some of these companies need regulating like utilities: there's a Wikipedia entry, for example, on the idea of 'Social media as a public utility'.

It hasn't helped that some of these firms have at times got right up the noses of competition authorities, with Facebook's 2014 purchase of WhatsApp being a good example. As part of the EU merger approval process, Facebook said that it  was technically impossible to merge WhatsApp's customer data with Facebook's. It wasn't, and they did. The Commission fined Facebook €110 million "for providing misleading information"; Facebook said it was inadvertent.

But there is also some pretty poor 'diagnosis' of 'a problem' floating around. Somewhere on Twitter recently I got pointed to the latest annual Trade and Development Report, published in September by UNCTAD, the United Nations Conference on Trade and Development. While it sounds like a tedious Leninist tract - "Market power and inequality: The revenge of the rentiers" - Chapter VI actually contains an interesting empirical go at measuring the quantum of allegedly "excess" profits being earned at these superstar companies.

Their approach as they said on p124 was

define a benchmark that captures typical firm performance in given market conditions. The idea is to measure the gap between actually observed profits on the one hand, and typical or benchmark profits on the other. A positive gap between these two variables means that some firms are able to accumulate surplus or “excess” profits.

Sounds reasonable enough in principle, and rather resembles an OECD exercise recently which attempted to measure excessive mark-ups.

Their key result is shown below: as they summarise it (pp124-5), "the share of surplus profits in total profits grew significantly for all firms in the database until the global financial crisis, from 4 per cent during the period 1995−2000 to 19 per cent in 2001−2008. It increased again to 23 per cent in the subsequent period", with bigger increases again for the 100 biggest firms (by equity). Recently, we are asked to believe, 40% of total top 100 firms' profits are "surplus" or "excess".

The only trouble is that the whole thing falls apart when you unpack the methodology. Their measure of benchmark profit is the median rate of return on assets (ROA), which they say (p124) is "a widely used accounting measure of profitability". That's your first clue right there that something's naff: economists - and this is an economics-focussed chapter - would not normally, em, come to the aid of an accounting measure of profits if its hair was on fire.

The UNCTAD people at least had the gumption to apply their median ROA sector by sector since cross-sector ROAs are essentially meaningless. But even then I doubt if their database was sufficiently granular to do the job properly (I couldn't find out how many sectors they used, either in the report or on the UNCTAD website). Even if you got down to a  'shipbuilding' sector, say, if half the firms are making fishing boats with lowish amounts of fixed assets, and the rest are making battleships in enormous facilities, the higher ROA on fishing boats is going to spit out 'excess' profits where there may be none.

The whole ROA exercise still tells you nothing about the proper focus of inquiry, ROE: the battleship builders could be the more profitable. And there are other issues. In particular, there's no inherent logic in using the median sectoral ROA as the benchmark. You could well have - and likely do in many industries - have a small group on the efficiency frontier earning normal profits (or even excess profits) with a long tail of relatively inefficient firms earning sub-normal returns. The right level for identifying 'excess' profitability could be the 80th or 90th percentile or even above.

"Clearly", the UNCTAD report said, "these results need to be interpreted with caution". Indeed.

As it happens the report (p122) mentioned - but didn't subscribe to - an alternative explanation:

Schumpeter pointed out that temporary surplus profits, or rents, could play an important role in facilitating technical progress by compensating innovative entrepreneurs (as opposed to imitators) for risk-taking and initiative. Importantly, these entrepreneurial rents – now generally referred to as Schumpeterian rents – do not require protective regulation such as, for example, IPRs [patents]. They are the result of “thinking ahead of the curve”. According to Schumpeter... .since imitators would eventually catch up, such rents or surplus.profits would be only temporary.

So, on the one hand, UNCTAD with its view (as put in the Chapter VI press release): "the vicious cycle of market power begetting lobbying power has meant that the economic underworld of corporate rent-seeking is becoming legitimate". On the other, Schumpeter: consumers all over New Zealand finally getting video choice at a decent price (Netflix), with thriving social lives (Facebook) and good e-commerce (I'm a big fan of the Amazon-owned Book Depository). And some of us will have to have our iPhones prised from our cold, dead hands.

Which view sounds the more reasonable to you?

...and then the wheels came off

It was all going so well.

The Commerce Commission had pinged a whole series of real estate agencies for price fixing. The claim was that, after Trade Me tried a big jack-up of its house listing rates, the real estate companies had colluded to stop absorbing the previous, lower cost and to collectively pass on the new charges to house vendors.

Seemed straightforward. As the judge put it at [19] in the Online case, for example

Prior to the agreement, the status quo was that the cost of standard Trade Me listings was commonly absorbed by the real estate agents. In the normal course, any move to a vendor-funded listing arrangement against that background would most likely have resulted in some real estate agents electing to negotiate, thereby retaining competition in the market. Although Trade Me did not ultimately implement the per-price listing arrangement initially proposed, as a result of the Hamilton agreement the majority of Hamilton real estate agents implemented a vendor-funded model. This has been retained despite the implementation of the revised subscription model. The Hamilton agreement has brought a significant and lasting change to the market.

Sure enough one agency after another rolled over, conceded they'd contravened s30 of the Commerce Act, and agreed on penalties with the Commission, which were later ratified by the High Court.

They weren't small penalties, either: in the context of small to medium provincial businesses, even to my unsympathetic eye they were looking down the severe end. Alternatively, you could argue that the Commerce Commission was finally getting the courts to take price fixing more seriously. In any event, the Commission was enjoying a string of wins.

And then along came Justice Jagose in what I'll call Lodge & Monarch, the case where two Hamilton real estate agencies (and their principals) defended the charges. And they won.

The judge stepped through all the bits needed to prove a contravention of s27/s30.

Was there a "contract, arrangement or understanding"? Yes there was. It wasn't a cold, clear-eyed sit around a table process - the key meeting on September 30 2013 was actually a disorganised, talk-over-each-other general bitch and moan about Trade Me - but the judge found at [193] that

the defendants were part of a consensus giving rise to expectations each would not absorb the cost of Trade Me’s proposed per listing fees, and each (other than Success) would withdraw their standard listings from Trade Me by January 2014, subsequent Trade Me listings to be vendor funded. For the purposes of s27, the defendants entered into an arrangement, or arrived at an understanding, to those ends.

Did they "give effect" to it. Yes they did, as the judge found at [200]. The judge did not make a big thing of it, but the coordinated withdrawal of listings from Trade Me was highly suggestive.

Were the agencies "in competition with each other". Clearly yes. There was a little bit of argy bargy from the Commission about market definition, but nothing was going to affect  the obvious.

And then we got to the knobbly bit, "Fixing, controlling, or maintaining, of the price". Here are the key paras (my emphases):

[231] The defendants’ refusal to absorb the cost of Trade Me’s new fees says nothing about the price of their services to vendors. Nothing in the arrangement or understanding reached between the defendants constrains any freedom to charge any price to any individual vendor on any individual transaction, including by absorbing part or all of the cost of the residential property’s standard listing on Trade Me.

[232] Neither does anything in the arrangement or understanding ‘provide for’ such constraint: the only relevant constraint on an agency’s price-setting is the degree to which it is prepared to absorb, rather than to pass on, the expenses it incurs in the delivery of the service. Even if the comfort any agency drew from knowing of its competitors’ intentions made it less likely any proportion of those expenses would be absorbed, that does not ‘provide for’ price-fixing in s 30’s sense. “Providing for” means steps taken in advance of the direct fixing, controlling, or maintaining of the price as well as alternative means of achieving that result. But agencies retained their full pricing discretion, despite the arrangement or understanding.

End of story: it can't have been a price fix.

Lessons for the future, assuming the Commission doesn't appeal* and get it overturned?

The obvious one: despite the acquittal on the facts of this case, it remains highly dangerous to go near any discussion of price or pricing models with your competitors. The Commission may have been worsted on the battlefield on this occasion, but it was no accident that it ran a panel on 'The anti-competitive potential of industry groups' at its big conference this year.

And while it's tempting for people stuck in a Trade Me jack-up fix to argue, "Look, all of us going over to charging the customer for the new fee was always going to happen anyway, where's the beef?" - there were economists lined up in the background of Lodge & Monarch to argue along those lines - it won't do you any good. As Justice Jagose put it at [238]

Constraints on price-setting are deemed in breach of s 27. That the same price may have arisen in the counterfactual (ie, absent constraint) does not respond to the presence of constraint in the factual.

In the well-known air cargo cases, airlines were similarly hit with new, higher costs for the likes of airport security. Their shipper customers may also have ended up wearing the bill come what may. But it's not on (as the airlines did) to collude on a standard tariff. How much of a cost to absorb, and how much to pass on, needs to be your own independent decision.

*Update November 24 - the Commission announced it will indeed file a notice of appeal in the Court of Appeal because of "significant legal issues" arising from the case.

A good start

The new Public Policy Institute at the University of Auckland kicked off yesterday with a public lecture by Professor John Hewson on 'The most risky and unpredictable global outlook in my lifetime'.

You'll most likely know Hewson not as a professor but as the former leader of Australia's Liberal Party. As Leader of the Opposition he lost the "unloseable" 1993 Aussie general election to Paul Keating and in the unsentimental way of politics was rolled in 1994 by Alexander Downer.

He left parliament in 1995 - inevitable, perhaps, but a loss. He was ahead of his time with his Fightback! economic policies, but as his Wikipedia entry notes, "apart from supporting right wing economics, [he] also supported abortion, gay rights and working mothers", making him one of that critically endangered species, the economically literate and socially liberal politician. And irrespective of where you stand on Fightback!, it's clear that Hewson would have made a better party leader and Prime Minister than several of the EQ-less muppets that followed him.

His arguments about high unpredictability? Economists' analytical tools have broken down: printing money hasn't led to inflation, the Phillips curve has vanished, "impossibilities" like negative interest rates have materialised. Europe: common currency stresses haven't fully played out out, and he's pessimistic about the Brexit endgame. US: on top of everything else problematic, notably the Fed's challenge of normalising interest rates without knackering the US or global economies, there's  now Trump. Hewson had a great line, that what worried him most about Trump's 3.00am tweets was that Trump wasn't drunk at the time. China: debt, pollution, demographics, corruption, faked GDP growth, foreign policy adventurism. Everywhere: a breakdown of trust in established political processes. Geopolitics: North Korea in particular, where we're now at the mercy of an accident or miscalculation, but also elsewhere.

He spoke for nearly an hour without notes and (as the old TV panel game used to say) without hesitation, repetition or deviation: a class act. There was time for a few questions: I snuck one in, about what structural reform still needs doing in Australia. Lots, was the answer, across all policy areas, but only limited prospects of progress given the "Nope!" style of Aussie oppositional politics, for which he rightly fingered Tony Abbott. Another in the audience asked if Hewson saw any way of reducing the growing political polarisation we're seeing in a range of countries: short answer, no.

Not comforting, in sum, as a seasoned take on the global outlook. Personally, I'm more in "the world economy will muddle through" camp: the latest JP Morgan / Markit composite index of global economic activity continues to show ongoing (and likely accelerating) growth in the global economy, and if you take a look at The Economist's collation of the latest forecasts for next year you find that virtually every country of any consequence is expected to keep growing in 2018 (ex the haplessly mismanaged Venezuela). But equally I wouldn't be too surprised if some of Hewson's scenarios came to hand, either.

It was a lively start for the new Institute, which has also posted a first batch of policy briefings and which now provides some competition to AUT's established Policy Observatory and its set of briefing papers. I'm hoping for a bit of intellectual diversity, too: the market for academic hand-wringing over the evils of "neoliberalism" is already well supplied.

Special?

Almost two years ago now, I went and had a look at a Special Housing Area (SHA) that had been set up a few Ks away in Browns Bay. Oddly, there was nothing happening at the supposedly fast-tracked SHA, while all around it non-SHA apartment blocks were sprouting like mushrooms.

I went back three months later. Still nothing at the SHA (and nothing happening at another one on East Coast Road that I also went and sussed out). Still full speed ahead on the non-SHA sites, though.

And a year ago I went back yet again. Signs had just gone up on the Browns Bay SHA site saying a very smart looking apartment block was planned, but there was no sign of any construction. Nor at the other SHA on East Coast Road. Meanwhile the non-SHA projects were all progressing nicely.

And today - you guessed it - I went and had another shufti.

Here's the SHA in Browns Bay. Best you can say is that at least it's started, though as you can see it's only at the very earliest stage of construction.

Meanwhile the non-HSA apartment blocks on the same street are all finished. Here are two I snapped before, 'The Pines' at 25 Bute Road...

...and the 'Norfolk' at 19-21 Bute Road. Both already have people living in them, though The Pines is still looking for tenants for its streetfront office/retail space.

And at the other SHA on East Coast Road? Nada. Still looks the same as ever. It hasn't made the original target, which was to have 39 apartments finished by "the early part of 2017", according to the blurb on the Auckland Council SHA site (it's the 'East Coast Road, Pinehill' one in Tranche 4).

And finally I thought I'd go and look at another SHA, currently the site of The Brownzy pub on the corner of Beach Road and Bute Road. Nope: nothing underway there yet either, which is a shame as it's a decent-sized pozzie. The Council write-up ('Beach Road, Browns Bay', in Tranche 10) says it will eventually carry 66 homes, with the first ones available by the middle of next year. Can the developers wind up the (still operating) pub, knock it down, and put the new housing up in seven months? We'll see.

Let me finish by saying (as I've said before) that I'm not criticising the owners of these sites in any way. They can develop - or not develop - their own properties to whatever schedule they damn well like, and good luck to them. And as an economist I'm congenitally inclined to believe that they know their own interests better than any outsiders, and it's highly likely - subject to the current capacity shortages in the Auckland building trades - that they'll be making the most efficient use possible of these valuable properties.

But as for the Special Housing Areas as a policy experiment?

My working hypothesis is that they've been an almost complete dud. And I wouldn't rule out that they may even have been counter-productive, when you see the non-SHA sites have gone ahead at full speed while the SHAs have just been sitting there.

Guesses, sure. Small sample size, absolutely. And I'll try and put some numbers around the whole SHA scheme when I have half a mo, and see if I can substantiate what I suspect. But for now, who am I going to believe: the original hype, or my own lying eyes?