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Kavanaugh's 'major rules' theory could stymie future plans to cut CO2 emissions

Can ComScore Break Nielsen's Near-Monopoly On Ratings?

Most TV Everywhere Viewing Is Live TV In The Home

Consumer Insights Online Video User Overview

Public Companies Going Private

Kavanaugh's 'major rules' theory could stymie future plans to cut CO2 emissions

If confirmed to a lifetime appointment, Supreme Court nominee Brett Kavanaugh could lean on a bold legal theory to block future administrations from using the U.S. Environmental Protection Agency to regulate carbon dioxide emissions from the electric utility sector.

Following his July 9 nomination by President Donald Trump, environmental groups warned that Kavanaugh would tilt the balance of the Supreme Court if he replaces Justice Anthony Kennedy, a crucial swing vote in several cases defending the EPA's authority to issue air quality and CO2 rules.

That argument was advanced again Sept. 7 by Lisa Heinzerling, an expert witness called by Democrats on the Senate Judiciary Committee to testify on the final day of Kavanaugh's contentious confirmation hearings.

In prepared remarks, the Georgetown University law professor noted Kavanaugh has often ruled on the side of businesses seeking to overturn environmental regulations during his 12-year tenure as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Heinzerling also told committee members that Kavanaugh has put his own twist on a legal theory known as the "major rules" doctrine, which could strip agencies of the legal authority needed to tackle issues such as climate change.

The theory "holds that an agency may not issue a rule that has great political and economic significance without a precise and crystalline instruction from Congress," Heinzerling said. "This interpretive approach would, perversely, disable agencies in the very circumstances in which we need them the most."

'Major rules' doctrine

The "major rules" doctrine stems from a 2015 Supreme Court decision in King v. Burwell, in which the court upheld tax-related provisions in the Obama administration's Affordable Care Act.

Although the case was widely viewed as a loss for conservatives, the court also articulated a "major rules" exception to a precedent known as the Chevron deference. The longstanding precedent, first established by the Supreme Court in the 1980s, holds that courts should generally defer to federal agencies' interpretations of regulations that are ambiguous or silent on a particular issue.

But in King v. Burwell, the Supreme Court's outlined a "major rules" exception by stating that courts need not defer to agencies if the regulation involves an issue of major political or economic significance.

A year later, Kavanaugh dissented from a D.C. Circuit Court denial to rehear a lawsuit brought by telecommunications companies challenging the Federal Communications Commission's net neutrality rule governing internet service providers. According to Heinzerling, Kavanaugh in a written dissent staked out a more expansive position than the Supreme Court's "major rules" exception.

"For an agency to issue a major rule, Congress must clearly authorize the agency to do so. If a statute only ambiguously supplies authority for the major rule, the rule is unlawful," wrote Kavanaugh.

Heinzerling's analysis suggests that Kavanaugh's position, if established as Supreme Court precedent, could stand in the way of future attempts by the EPA to use its broad authority under the 1970s Clean Air Act to enact a nationwide CO2 reduction plan similar to the Obama administration's Clean Power Plan.

Moreover, Heinzerling noted that Kavanaugh would distinguish "major" rules from "ordinary" rules by considering "the amount of money involved for regulated and affected parties, the overall effect on the economy, the number of people affected, and the degree of congressional and public attention to the issue."

"He has already announced that rules governing the Internet and regulating greenhouse gases are off-limits under his theory," Heinzerling said, citing Kavanaugh's dissent from a 2012 court decision upholding an EPA rule that limits greenhouse gas permitting to the largest industrial sources.

'Not a skeptic of regulation at all'

Meanwhile, Kavanaugh suggested on Sept. 5 that agencies sometimes improperly lean on legal precedent to promote environmental objectives beyond the scope of the law. It is up to Congress, not the courts, to address those issues, he argued.

"We have to stick to the laws passed by Congress," he said on the second day of his confirmation hearing. "You make the policy, we'll follow the policy direction ... we don't rewrite those laws."

Kavanaugh also said he is "not a skeptic of regulation at all."

"I'm a skeptic of unauthorized regulation, illegal regulation, regulation that's outside the bounds of what the laws passed by Congress have said," he said.

Adam White, director of the Center for the Study of the Administrative State at George Washington University, came to his defense two days later.

"In an era where agencies are often eager to enact policies that Congress hasn't legislated, some of Judge Kavanaugh's critics favor those energetic agencies over Congress," White said. "Especially in recent cases involving agencies claiming immense new regulatory powers under the guise of decades-old statutes."

White said Kavanaugh's approach represents "administrative law at its best." The approach empowers "agencies to administer the laws efficiently and effectively, but always subject to the deeper fundamental commitments of our Constitution's structure and rights," White said.

Past predicts future?

Michael Gerrard, an environmental law and energy regulation professor at Columbia Law School, said in a Sept. 11 interview that examining Kavanaugh's track record can be even more illuminating than scrutinizing his legal theories.

Kavanaugh dissented with the majority of a three-judge panel on a challenge to the EPA's Mercury and Air Toxics Standards, or MATS, in White Stallion Energy Center v. EPA (No. 12-1100). In his dissent, Kavanaugh said the notion that Congress would authorize the agency to regulate without any consideration of regulatory costs was unreasonable. The Supreme Court later ruled that the EPA did not properly consider the cost of compliance when developing MATS.

In EME Homer City Generation v. EPA (No. 11-1302), Kavanaugh was also part of a panel that vacated the EPA's Cross-State Air Pollution Rule, known as CSAPR. In that decision, he found the rule required states to make emissions reductions beyond what was legally required. The Supreme Court later reversed the D.C. Court's decision, determining that the EPA's over-control of some states did not require the entire rule to be vacated.

"A court with a solid five-judge conservative majority that includes Judge Kavanaugh is likely to be more resistant to the innovative or expansive use of existing regulatory statutes, including environmental" rules, Gerrard said. "He interprets statutory authority exceedingly narrowly."

Technology, Media & Telecom
Can ComScore Break Nielsen's Near-Monopoly On Ratings?


The following post comes from Kagan, a research group within S&P Global Market Intelligence.

To learn more about our TMT (Technology, Media & Telecommunications) products and/or research, please request a demo.

Sep. 17 2018 — Advertising agencies are becoming increasingly frustrated with the inability of Nielsen Holdings PLC's Nielsen Media Research to convince the major media companies to embrace its new cross-platform measurement system, called Total Audience Measurement. This creates a huge opportunity for comScore Inc., formerly Rentrak.

ComScore is trying to reinvent itself following its delisting in 2017 — it was relisted June 1 — following an accounting scandal. The company's stock has fallen from $65 per share intraday on Aug. 17, 2015, to close at just $18.06 per share on Sept. 6. It currently has a total enterprise value of less than $1.2 billion, paltry in comparison to Nielsen Holdings' $12.9 billion.

In April, comScore named Bryan Wiener, previously executive chairman of Dentsu's digital media agency 360i LLC, as its CEO. On Sept. 5, the company announced that it hired Sarah Hofstetter to serve as president and head up commercial strategy, including sales and marketing.

Wiener and Hofstetter have worked together for two decades, most recently at 360i, where Hofstetter was CEO and chairwoman. The two executives' deep ties to the advertising community may be just what is needed to bring a competing cross-platform measurement system to the broadcast and cable network industries.

Cable network ad revenue grew for decades before stumbling, albeit modestly, during the last recession. More recently, despite a booming economy the cable network ad industry has faltered, in part due to cord cutting and cord shaving but also because current ratings do not include all of online viewing and out-of-home viewing.

Currently, the ratings only include online viewing within a three-day period, which includes the exact same commercial load as linear. Many media companies do not believe that online viewers will tolerate the huge ad load that exists on linear TV and do not include the same commercial pods that appear on linear TV when serving up the shows online.

Although negotiations between Nielsen Media Research and the major media companies have been going on for some time, many in the industry are tired of the delays in adopting a new system and are looking at alternate ways to measure viewing.

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Technology, Media & Telecom
Most TV Everywhere Viewing Is Live TV In The Home


The following post comes from Kagan, a research group within S&P Global Market Intelligence. To learn more about our TMT (Technology, Media & Telecommunications) products and/or research, please request a demo.

Summary: subscribers to telco operators were more likely to indicate they streamed TV Everywhere content compared to cable and DBS subscribers.

Sep. 17 2018 — Streaming live TV Everywhere to a mobile device inside the home is the TV Everywhere activity most often performed at 52% of multichannel TV respondents, according to data from Kagan’s MediaCensus online consumer survey.

While 58% of respondents surveyed in multichannel homes viewed TV Everywhere in the last three months, just 46% did so out of their home. Click here for the full Kagan report.

Viewing live TV inside the home was not only the TV Everywhere activity performed by the most respondents; it was also the most frequently performed.

Subscribers to telco operators were more likely to indicate they streamed TV Everywhere content compared to cable and DBS subscribers. Subscribers to some operators are more likely to stream TV Everywhere content, with AT&T U-verse (64%) being the highest and WOW! (42%) the lowest among operator subscribers surveyed.

Younger subscribers, especially Millennials, were more likely to stream TV Everywhere content compared to older subscribers.

For more information about the terms of access to the raw data underlying this survey, please contact

Data presented in this article is from the MediaCensus survey conducted in February 2018. The online survey included 20,035 U.S. internet adults matched by age and gender to the U.S. Census, with additional respondents subscribing to the top multichannel video operators in the U.S. The survey results have a margin of error of +/-0.7 ppts at the 95% confidence level. Generational segments are as follows: Gen Z: 18-20, Millennials: 21-37, Gen X: 38-52, Boomers/Seniors: 53+.

Consumer Insights is a regular feature from Kagan, a group within S&P Global Market Intelligence's TMT offering, providing exclusive research and commentary.

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Technology, Media & Telecom
Consumer Insights Online Video User Overview


49% of survey respondents use more than one SVOD service.

Sep. 14 2018 — Data from Kagan’s U.S. online consumer surveys shows that 23% of respondents exclusively use one service, while almost half (49%) use more than one SVOD service. The service which is most commonly used exclusively is Netflix, while users of smaller services almost always use at least one other service.

Netflix is so universally used that it is both the most exclusively used service and the service most often used in conjunction with another service. In terms of demographics, Netflix users are very similar to the general population compared to smaller services that tend to have a younger user base.

With the exception of Netflix, most respondents indicated they have never subscribed to the top four services, including Netflix, Hulu, Amazon Prime Video and HBO NOW. Among those who indicated they dropped one of the top services, price was a principal reason for dropping, although content-specific reasons differed by service. Content is one of the most defining characteristics of online streaming services, which can be seen in the content viewed and most enjoyed on each service. In large part users of Netflix, Hulu and Amazon Prime Video most enjoy the content each service is known for.

A broader overview of this data was presented in a recent webcast.

Data presented in this blog is from U.S. Consumer Insights surveys conducted in September 2017 and March 2018. The online survey included 2,526 (2017) and 2,523 (2018) U.S. internet adults matched by age and gender to the U.S. Census. The survey results have a margin of error of +/-1.9 ppts at the 95% confidence level.

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Capital Markets
Public Companies Going Private

Sep. 14 2018 — The recent tweet from Elon Musk has understandably made big news, but it is worth pointing out that the appetite for taking public companies private has been a key area of activity this year. S&P Global Market Intelligence’s data shows that 2018YTD is already at 39% of 2017 numbers, standing at €17.8bn of deal value across 32 completed deals, globally. Going-private closed deal count is at a healthy 49% compared to full 2017 numbers.

In terms of most popular sectors for going-private deals, since 2013 - Information Technology has been leading the pack with €108.9bn of aggregate deal value recorded across 104 deals, while Consumer Discretionary* is trending as a distant second with €49.7bn of total deal value.

The top target location for going private deals is the US, and interestingly – China comes in at second place, with UK following. The three regions have seen total deal size of €218.8 during the period of 2013 through 2018YTD. The popularity of these locations is further supported by the fact that after going private, average target’s EBITDA values have increased compared to when those companies were public. The US-based going private targets grew their EBITDA by average of 56% since leaving the public market, while Chinese and the UK-located companies grew EBITDA by 10% and 38%, respectively. Overall, the going private moves proved to be successful for ex-public companies globally within the 2013 – 2018YTD deals’ time frame, where their average Net Income values grew by 58% while EBITDA values grew by a smaller but yet attractive 29%.

In terms of the deal pipeline, 18 going-private deals were announced globally since 1st January 2018 and would add €25.8bn of aggregate deal value to already closed €17.8bn.

The following was originally published on Angel News on August 16, 2018: Public companies going private, S&P Global comment

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