Podcast Summary: "When Does Self Regulation Become Collusion?"
Podcast: Is Business Broken?
Host: Kurt Nickish (Questrom School of Business)
Guests: Jonathan Kanter (former Assistant Attorney General for U.S. DOJ Antitrust Division), Tim Simcoe (Professor of Strategy & Innovation, BU Questrom)
Date: October 23, 2025
Episode Overview
This episode explores the blurry boundary between legitimate self-regulation by businesses and anti-competitive collusion. Host Kurt Nickish sits down with former DOJ Antitrust Division head Jonathan Kanter and Professor Tim Simcoe to discuss how self-regulation can serve the public–or, when misapplied, create monopolistic abuses and sidestep democratic oversight. The conversation focuses on big tech regulation, antitrust law, and recent high-profile cases, while weighing the role of government versus industry in shaping functional, fair markets.
Key Discussion Points & Insights
1. Self-Regulation vs Antitrust: Complementary or Opposed?
- Self-regulation: Businesses/competitors collectively agree on rules to govern their industry.
- Antitrust: Law and policy preference for market players to compete separately.
Jonathan Kanter:
"Self regulation often implies competitors or industry participants working together, and antitrust as a default promotes industry competitors working apart." [01:57]
Tim Simcoe:
"There are times when we think businesses may need to coordinate on some rules...They may work well together in the public interest at times." [02:29]
2. Big Tech and the Limits of Self-Regulation
- Tech platforms increasingly act as private regulators, setting critical rules (e.g. privacy, content moderation).
- These companies have built-in conflicts of interest: maximizing shareholder value vs. protecting the public good.
Jonathan Kanter:
"When the companies imposing the rules have conflicts of interest, that is when most of the anti competitive concerns arise." [03:13]
"We should not necessarily rely on self regulation as serving the public interest because those self regulating have a very different interest that is not necessarily fully aligned with the public." [05:07]
- Reputation and consumer pressure aren’t enough in "winner-take-most" markets—formal government guardrails are needed.
3. Real-World Case Studies: When Self-Regulation Tips into Collusion
- Realtors & Commission Setting:
Industry-wide commission agreements serve as textbook antitrust violations if they affect competitive terms.
[06:56] - Dental Boards & Market Entry:
North Carolina case where dental association blocked hygienists from entering whitening services market, claiming "safety"—a guise to prevent competition.
Tim Simcoe:"There's usually some sort of explanation given for why it's not a good idea for entry...which might lead to future competition for the group making the rules." [07:54]
- NCAA & Athlete Compensation:
O'Bannon v NCAA—nonprofit self-regulation used to restrict compensation, locking in incumbent power. [09:03]
Jonathan Kanter:
"If the companies…benefit from those rules, clearly they're going to have an incentive…to massage those rules so that they benefit and others don't, whether it's keeping people out of the market or keeping prices high." [10:33]
4. Deregulation, Private Power & the Need for Government Oversight
- With less governmental regulation, dominant firms can become 'regulators in disguise,' enforcing rules to fortify their positions.
- Consumer pressure fails in non-competitive markets; market power allows incumbents to impose terms with little recourse for the public.
Jonathan Kanter:
"Industry self regulation is a fiction." [11:52]
"Not unless there's a heck of a lot of competition so that people can vote with their feet...results in kind of the worst of all worlds..." [12:17]
- Environmental Example: Competition alone often fails for public goods like environmental protection.
Tim Simcoe:"It's not obvious we're going to have competition that leads to firms cleaning up the natural environment if they can get away with imposing those costs on someone else." [12:42]
5. The Current Regulatory Landscape: US vs Europe
- U.S. lacks modern tech/privacy regulations, relying on outdated statutes (FTC Act of 1914).
- Europe is moving ahead with formal regulatory frameworks like the Digital Markets Act.
Jonathan Kanter:
"In tech, right now we don't have lines on the road...we're kind of living in the Wild West." [14:44]
Tim Simcoe:
"We are in a system where it's going to be antitrust through the courts, whereas Europe has set up the beginnings of a regulatory regime..." [17:34]
6. Antitrust Successes and Limits
- DOJ’s double victory against Google (search and ad tech) demonstrated antitrust law’s applicability in tech—but winning liability is just the start. Remedies—often requiring technical or industry standards—reopen the question of how rules are set and by whom.
Jonathan Kanter:
"We took on a formidable opponent and we won in court decisively, but because we established ... that antitrust can work for a modern economy." [18:15]
Tim Simcoe:
"There’s going to have to be some kind of way of getting to an industry standard...but how do you organize that process in a way such that it's not simply dominated by Google?" [21:22]
7. What’s at Stake: The Everyday Consequences
- Without effective checks on private power, monopolies can shape broad facets of daily life: what we see and hear, our economic choices, even our news and political realities.
Jonathan Kanter:
"It's freedom...when monopolies run the economy, they impose rules on how we live our lives...It is why ... anybody who cares about power and regulation in the public sphere should care about ... the private sphere as well." [21:44]
- Decentralization of power, both political and corporate, is a vital public good.
Tim Simcoe:
"The fact of the matter is you need to have some rules to organize the kind of competition...There are really strong reasons to sometimes have the government be engaged...because it can get hijacked by private parties that have vested interests..." [24:46]
8. Public Action and Systemic Barriers
- Strong antitrust enforcement and proactive regulation require continuous political will and public attention.
- Systems of power, once entrenched, are very hard to dismantle; the burden to undo concentrated market structures only grows over time.
Jonathan Kanter:
"If we are asleep at the switch in terms of antitrust enforcement...we're going to be left with a regime or an economy that's going to be very difficult to fix quickly." [23:15]
9. Key Misunderstandings about Antitrust
- Antitrust prosecution is not regulation; it's about ensuring markets remain open, contestable, and dynamic.
Jonathan Kanter:
"Antitrust enforcement is not regulation...it's about preserving a competitive economy, hopefully so we don't need as much regulation." [26:05]
Memorable Quotes
- "Industry self regulation is a fiction." — Jonathan Kanter [11:52]
- "When monopolies run the economy, they impose rules on how we live our lives...it's freedom that's at stake." — Jonathan Kanter [21:44]
- "There are really strong reasons to sometimes have the government be engaged...because it can get hijacked by private parties that have vested interests." — Tim Simcoe [24:46]
- "Antitrust enforcement is not regulation...It's about letting markets work. You can't have competition without competitors." — Jonathan Kanter [26:05]
Notable Timestamps
- 01:57 – Antithetical nature: self-regulation vs antitrust
- 03:13 – Big tech as private regulators; conflict of interest
- 07:54 – Dental boards case: self-regulation as market exclusion
- 10:33 – How rule-setting tips into antitrust violation
- 11:52 – Concerns about relying on industry self-regulation
- 14:44 – U.S. regulatory vacuum in tech; comparison to "Wild West"
- 18:15 – DOJ victories against Google; proving antitrust can function in digital markets
- 21:44 – Societal risks: concentration of power impacts freedom and daily choices
- 24:46 – Need for government-managed regulation, dangers of deregulation
- 26:05 – Clarification: Antitrust enforcement vs regulation
Lessons & Calls to Action
- Vigilant public oversight is necessary; otherwise, private interests can become unaccountable regulators, eroding competition and public welfare.
- Robust, ongoing antitrust enforcement and periodic government regulation are both needed; neither alone is sufficient for healthy markets.
- Public understanding must move past the reflexive aversion to ‘regulation’—some managerial rule-setting is inevitable, and the question is who sets the rules and in whose interest.
- Competition and a fair market system require constant nurturing and are not easily restored once lost.
This episode provides a candid, deeply informed look at the practical and philosophical boundaries between self-regulation, collusion, and the responsibilities of both government and industry in the modern economy.