FCC Chairman Genachowski’s speech to NARUC: “Broadband: Our Enduring Engine for Prosperity and Opportunity” raises some big open questions.

The biggest open question is whether Chairman Genachowski believes the titular “broadband engine” of his speech should remain a private sector “engine” that is private property and fueled by profit and investment returns, or whether the “broadband engine” should somehow become quasi public property, heavily regulated like a public utility, and more government funded and controlled.

 Another big open question arises out of Chairman Genchowski’s adoption of electricity as his new guiding metaphor in place of interstate highways.

     
  • “Some compare high-speed Internet to building the interstate highway system in the 1950s. It’s a tempting comparison, but imperfect.
  •  In terms of transformative power, broadband is more akin to the advent of electricity. Both broadband and electricity are what some call “general purpose technologies” — technologies that are a means to a great many ends, enabling innovations in a wide array of human endeavors.The open question here is electricity transmission is regulated as a public utility. Is the FCC Chairman’s new metaphor intended to extend to how broadband should be regulated? 
  • Electricity reshaped the world — extending day into night, kicking the Industrial Revolution into overdrive, and enabling the invention of a countless number of devices and equipment that today we can’t imagine being without.
  • Now in the 21st century, it is high-speed Internet that is reshaping our economy and our lives more profoundly than any technology since electricity, and with at least as much potential for advancing prosperity and opportunity, creating jobs, and improving our lives.”
  •  

The irony with the Chairman adopting this new electricity omni-metaphor to explain his policy approach/plan is that the current electrical grid is a dumb network that the Administration and the FCC want to make a “smart grid” via broadband technology, while the current smart broadband network would be forced to become dumb if the FCC’s proposed open Internet regulations become formal regulations.

Why is it a good thing for an electrical grid/network to be smart, but its not a good thing for a broadband information services network to be smart?
 
 
 To discern the real “root” causes of the financial crisis of 2008, one must probe beneath the surface and examine the health of the “root system” of our capital markets “forest.” The roots of the capital markets forest are sound economics; the natural market function of automatically equilibrating supply and demand and risk and reward, that is commonly appreciated as Adam’s Smith’s “invisible hand.” We generally assume that the natural market strength of the capital market forest’s root system ensures that all the trees are not in danger of being blown over in the crisis of a storm.

 

In the fall of 2008, we all were shocked to learn that the root system of our capital markets, that we had always assumed was healthy and strong, was actually frighteningly weak and brittle requiring the slapdash reinforcement of multi-trillion dollar emergency scaffolding of whatever material was close at hand, a TARP, bailout lifelines, capital sandbags, etc. — to buttress the main market “trees” from toppling over, trees that the Government judged to big to be allowed to fall.

 

With the financial storm clouds apparently passed for now, many are becoming complacent, because the old adage is true — out of sight out of mind. Moreover, everyone desperately wants and needs to be able to assume that the essential root system that they cannot see is fine and nothing to worry about. That’s because if people knew the root system was weak with root rot, systemic uneconomics, they would have less confidence in the capital markets forest or the fledgling economic recovery.

 

So many are myopically focusing on structurally preventing the trees from falling down, largely by packing tens of billions of dollars of additional capital “soil” around the base of the trees to try and reinforce them. More capital “soil” to reinforce the trees makes good sense. However, it totally covers up the most important point — that the capital markets forest must have a healthy root system so that the market’s trees can stand by themselves long-term. If the health of the root system is not restored with sound economics, it won’t be able to withstand future storms/crises that will surely come, if the future is anything like the past three decades.

 

Unfortunately, we also know that another old adage is true: what we don’t know can hurt us.

 

The real problem is neither the market nor economics, but the irresponsible proliferation of inherently uneconomic financial instruments that undermine the ability of natural market economics to function. It is common sense that if enough inherently uneconomic activity is introduced, condoned, and allowed to spread broadly and deeply into the public capital markets system, public markets deteriorate from being systemically economic to being systemically uneconomic; in other words the systemically dysfunctional mess we witnessed in the dismal fall of 2008.  

 

More specifically, the root system rot of uneconomics comes from introducing a variety of inherently uneconomic derivative financial instruments into the public capital markets system, that inherently undermine, weaken and destabilize the market’s (or invisible hand’s) natural ability to equilibrate: supply and demand; risk and reward; the borrower and lender relationship; the balance between short and long term horizons; and the economic equation between risk and insurance.

 

Let me be crystal clear, financial derivatives themselves are not the problem because derivatives can be economic and have many legitimate and valuable benefits. As I explained in Part II of this series, “Systemic Risk Laundering,” the problem is an unaccountable, out-of-control derivative system where derivatives are all assumed to be systemically benign and allowed to destroy the underlying public asset they are derived from. Central to accountability is the fundamental question: is a particular derivative financial instrument economic or uneconomic when integrated into the overall capital market system? In other words, are particular derivative instruments constructive or destructive to the core economic linkage of: supply and demand? Risk and reward? Borrower and lender? Short term and long term? Risk and insurance? To carry the root metaphor deeper, do the particular derivative instruments impede, block, or distort the root system’s natural ability to absorb and benefit from the water and nutrients in the soil?

 

So what are the uneconomic derivative financial instruments that create systemic risk and systemic uneconomic dysfunction?

 

First, employee stock options (in stark contrast to actual employee stock grants) are inherently uneconomic because they pervasively disconnect risk from reward and supply from demand. Stock options are the market equivalent of something for nothing, an opportunity to gain with no offsetting opportunity to lose. Stock options, unlike stock grants or the buying or selling of stock, are one-way upside potential with no potential downside risk. The tech bubble taught us that too much personal financial opportunity divorced from any personal financial risk encourages unwarranted risk taking with other peoples’ money. Typical of the system, not enough was done after the tech bubble to address the inherent uneconomic nature of stock options, so they continue to rot away the market’s natural strength to this day.  

 

Second, indexing financial instruments are inherently uneconomic because pervasive indexing is inherently destabilizing, anti-capital formation, speculative, and hyper-stressing of the financial system, as I described in Part I of this series: “Indexing into the Ditch.” Indexing naturally impedes the market’s ability to reach equilibrium by exacerbating market volatility because it artificially creates a massive one-sided economic market. It generates substantial supply with no offsetting demand in a down market; and it generates substantial demand with no offsetting supply in an up market. Indexing fosters a market momentum dynamic which means a dominant segment of the market does not care about economics: price, fundamentals or time horizon — at all. Therefore prices can never be too high or too low for an indexer because economics have absolutely nothing to do with indexing.  

 

Third, off-exchange derivatives often are destructively uneconomic, because like indexing, they can subordinate the first purpose of an underlying publicly-traded asset by advantaging the second purpose of the derivative ahead of the first purpose of the publicly traded asset — the quintessential tail wagging the dog. Credit default swap derivative instruments were dangerously uneconomic in that they perverted the essential equilibrium of borrower and lender and the concept that insurance is only economically viable for quantifiable risk. New experiments with “life settlements” derivatives assuredly will end badly because they mix the economic concept of insurance for highly-quantifiable risk with markets with inherently unquantifiable risks, rewarding speculative arbitrage, manipulation and fraud.

 

Almost by definition, the second purposes of derivative instruments are different from the first purpose financial instruments, and that difference can either be benign and productive or uneconomic and destructive. Returning to the root system metaphor, many derivatives are akin to introducing untested synthetic bacteria or virus into the capital market’s forest ecosystem. The current near-total lack of accountability for many off-exchange derivatives means that anyone can dump in the capital market forest whatever they can convince or trick someone into buying.  

 

Finally, computer-automated program trading, or more simply algorithmic trading, is rapidly becoming the market norm because it offers efficiencies, mostly centered on substantially lowering transaction and management costs, which can contribute to better net performance. However, the much under-appreciated problem here is the inherent uneconomic “short-termism” effect of pervasive algorithmic trading in capital markets. The obsession, trend, and technology arms race to achieve ever faster, more complex, and more comprehensive automated trading is tautologically short-term focused. This is essentially devolving into a counter-productive race where artificial intelligence portfolio management arbitrages new information faster and faster (now measured in milliseconds and soon in nanoseconds), rather than compete for long-term investment returns — the universal goal of most investors, pensioners, and companies that are supposedly the true customers of the public capital markets system.

 

I call this pervasive and corrosive technological dynamic “algorithmia.” At core, algorithmia is a technological downward spiral to achieve a relative mili-second edge and is all about extremely short-term arbitrage, often less than a day. The flood of investable resources into immediate-term algorithmia only exacerbates the distortion and destabilization for the rest of the market that is trying to investment optimize for various long-term investment horizons that investors, pensioners and companies need.

 

Why algorithmia is profoundly uneconomic is that it powerfully disconnects the market’s natural function of reaching equilibrium by matching buyers and sellers via different investment horizons. If most liquid investable resources are inherently immediate-term focused, even if they are masquerading as having a longer term investment horizon, the long-term capital market purposes of capital formation, economic growth and investment simply cannot function economically. Algorithmia is not about investing at all, but about constant arbitrage within and between asset classes. In the virtual mathematical world of algorithmia, what happens in the real world that’s not readily quantifiable, other than infrequently reported official numbers, is largely irrelevant.  

 

Like indexing, algorithmia is inherently a momentum dynamic too, because what drives all of these algorithms is the same basic official input data. Once the market adjusts to new information the algorithmic task then shifts to see how the next piece of information will change the relative arbitrage equation competition based on what just happened, so this process is inherently sequential and cumulative, and hence momentum driven, not driven by economic fundamentals.

 

The 2008 Financial Crisis was a perfect and ominous example of the perils of algorithm-dominated markets. Algorithmia becomes a problem for the market when something happens that the programmers did not anticipate. Much of the market froze in fear in the fall of 2008 precisely because the established momentum of the market broke so unpredictably that many of the programs could not function as designed. In other words they worked when everything went according to plan, but they could be disastrous if and when the market behaved in an unanticipated or uneconomic way.

 

The scariest part of algorithmia is that almost by definition oversight and regulators will be lagging and reactive. Algorithmia also only increases the knowledge and sophistication gap between industry practitioners and regulators. Common sense suggests that, at a minimum, there needs to be an accountability system where all the algorithmic decisions and changes are at least subject to audit and re-creation by law enforcement, because without that deterrence and accountability, algorithmia, like off-exchange derivatives, will become a safe haven for speculators, market manipulators and fraudsters.

 

In sum, a primary root cause of the Financial Crisis of 2008 was systemic uneconomics: the ever-increasing accumulation of trillions of dollars of inherently uneconomic derivative financial instruments rotting out the root system of the capital markets forest. No amount of surface reinforcement or capital soil piled on the top of the big trees in the capital markets forest will enable the trees to stand on their own during the next big storm if their root systems continue to rot away from systemic uneconomics.

 

The best way to avert another financial crisis is stop the root rot in the capital markets forest. The best way to do that is to apply an “Accountability Framework Checklist” (like the one recommended below) to discern which derivative financial instruments and algorithmic practices are inherently economic and productive and which are inherently uneconomic and destructive. If the overall economic purposes of capital markets are capital formation, economic growth and investment, all the roots of the capital markets system need to be based on sound economics and not arbitrage, manipulation and fraud.

 

*****

Note: Don’t miss Part I & II of this research series:

  • Systemic Risk Laundering — Financial Crisis Root Causes — Part II” Click here.
  •  Indexing into the Ditch – Financial Crisis Root Causes – Part I” Click here.

***

Scott Cleland is President of Precursor LLC, an industry research and consulting firm, and was the Founding Chairman of the Investorside Research Association. Click here for Cleland’s Biography.

 

***

Systemic Risk Prevention Framework & Derivative Accountability Checklist

(Same Recommended Framework as in Part II of the series)

 

All of the thousands of new derivative financial instruments and systemic practices that have emerged over the last decade since the CFMA created a safe harbor from accountability need to be audited and evaluated for unaccountable systemic risk, fraud and uneconomics.

 

  1. What asset, instrument, or market is the derivative dependent or predicated upon?
  2. Does the derivative’s second purpose conflict with, or undermine, the first purposes/value of the underlying public asset, instrument, or market that the derivative is derived from?
  3. How is the derivative interconnected with other assets, instruments, markets or counterparties? And to what extent is that interconnectedness reasonably transparent and known by all the affected parties?
  4. What are the side effects, externalities, and long-term/cumulative effects of the derivative?
  5. Does the derivative enhance or detract from the underlying asset, instrument, or market?
  6. Does the derivative undermine or break any linkage/relationship/balance between:
    1. Supply and demand?
    2. Risk and reward?
    3. Borrower and lender?
    4. Short and long term?
    5. Risk and insurance?
  7. As the derivative scales in usage could it foster systemic:
    1. Market momentum?
    2. Market speculation?
    3. Misrepresentation?
    4. Front running?
    5. Destabilization?
  8. Is the derivative’s effect prone to undermining or discouraging capital formation?
  9. Is the derivative’s effect prone to undermining market efficiency in reaching price equilibrium?
  10. How could the derivative be susceptible to fraud or manipulation?
  11. Does the derivative transfer risk transparently and with fair representation?
  12. Does the derivative have independent research coverage?
  13. How is the derivative accountable and to what/whom?
  14. What are the accountability measures, (audit, internal controls, etc.) for the derivatives algorithms or quant models?
  15. What independent third party audits and creates accountability for ensuring integrity of the algorithms and computer code that undergird these virtual derivative exchanges/systems?

 

Does anyone else see the irony of a staunchly anti-business and anti-property activist organization like FreePress — which openly advocates for an information commons and a broadband public utility model — attempting to be credible doing private investment analysis for the FCC?

  • Mr. Derek Turner of Free Press wroteFinding the Bottom Line: The truth about network neutrality & investment.”
  • The last time FreePress attempted economics in a public forum, FreePress asked in a letter to Congress “whether above-cost… pricing for broadband constitutes an unfair business practice.”
    • Given that FreePress was not aware that “above cost… pricing” is called profit and has always been legal in America, despite FreePress’ views to the contrary, call me skeptical about FreePress’ competence and genuineness in attempting private investment analysis.

If FreePress does not believe in free enterprise or private property, and does not understand concepts like profit, I am doubtful they can accurately or objectively analyze the economics or the business case for private long-term capital investments.

Mr. Turner tries desperately and unsuccessfully to assemble “evidence” to prove the ridiculous assertion that regulation does not deter private investment.

  • Obviously Mr. Turner has no real world understanding or experience in private investing.
  • The premise that regulation — that bans existing legal and profitable business activity, and ultimately takes away a property owner’s control over what prices, terms and conditions a product or service can be offered — will not discourage investment is preposterous.
  • Investors are not charities or government, they seek a return on their investment.
    • If their investment cannot earn a profit or a earn a profit commensurate with the increased risk, investment is obviously discouraged.

Apparently this FreePress report may only be the first of many dsytopian and incompetent economic arguments that attempt with sophistry to convince people that up is really down, and night is really day.

  • The notion that government regulation does not discourage private investment?
  • Ridiculous on its face.
  •  

 

 

 

How could American taxpayers get stuck with a multi-trillion dollar tab that they weren’t even aware that they were running up? How could that huge tab still be allowed to run up unchecked today? For the Financial Crisis Inquiry Commission, the sad answer is one of the biggest root causes of last fall’s devastating financial crisis and one of the biggest continuing systemic risks to the financial system and the economic recovery.  

 

A decade ago, in what may prove to be the most expensive bipartisan legislative mistake in U.S. history, a bipartisan policy became law that effectively ensured that no Federal regulator had oversight or enforcement jurisdiction over derivative financial instruments. The Commodity Futures Modernization Act of 2000 (CFMA) created “legal certainty for excluded derivative transactions.” That law allowed a shadow derivative overlay system to be built literally on top of the public financial system, with none of the inherent accountability of the underlying financial system. In other words, a deliberate bipartisan U.S. government policy change a decade ago unwittingly created an unaccountable “black hole” market that sucked enormous value out of public markets, (Bear Stearns, Lehman, AIG, Fannie, Freddie, securitized sub-prime mortgages, etc.) while laundering the risk to the U.S. taxpayer.

 

Simply, in fostering an unaccountable marketplace that derived all its real value from public markets, the Government fostered systemic risk laundering from the unaccountable to the accountable, which ultimately left the U.S. taxpayer holding the bag. More specifically, with no accountability to fairly represent or disclose risk, too many did not. Too many figured out that they could launder huge financial risk with impunity, because most public investors assumed someone somewhere was ensuring that these derivative instruments were fairly represented, disclosed, and accountable. Oops!

 

The origin of this monumental bipartisan blunder was a shockingly poor understanding of what free markets fundamentally require to work efficiently, i.e. confidence in: the enforceability of property rights and contracts; the competent policing against fraud and bad actors; and the free flow of necessary market information. For all practical purposes, the offending CFMA provision perversely redefined the word “free” in free-market to mean “unaccountable.” More specifically, the provision also systematically abandoned the implicit social contract that underlies the American free market system — “with freedom comes responsibility” — and re-interpreted “free” to mean freedom from accountability. Freedom from accountability is heaven on earth for fraudsters and bad actors. A decade of widespread freedom from accountability disgorged the totally dysfunctional marketplace of last year, which in turn required the Government to flood the market with trillions in capital, bailouts and guarantees to mop up this historic mess of systemically laundered risk.

 

Unaccountability fosters corruption, fraud, and unlimited liability, because there is no third-party check and balance of oversight, supervision, enforcement, legal liability, research, measurement, audit, due diligence, or internal controls. An unaccountable system is a system out of control, just like the system that ended up in the financial ditch last fall.  

 

The sanctioned unaccountability in this CFMA law also neutered the free market by ensuring little free flow of necessary market information. The provision basically allows two parties to secretly agree on the value and risk transfer of derivative transactions without sharing any market information with public markets or the owners of the public assets the derivatives are based upon. If parties can secretly create and extract value from unaccountable derivative transactions on the backs of public assets, they easily can launder risk to the unaware owner of the underlying public asset. A light bulb should be turning on about how so many public investors and the American taxpayer systematically could be left obligated to pay trillions of dollars for a tab they didn’t even know was being run up. Another light bulb should be turning on about how this enormous systemic problem is still going on today – largely unchecked. Ignorance is indeed bliss.

 

Why do you think industry insiders refer to these derivative transactions as “dark pools?” It is because there is no transparency or light shed on this critical market information. This is also why I refer to the shadow derivative overlay system as an unaccountable “black hole” market from which no light can emerge to enable markets to efficiently maintain price equilibrium.  

 

Let me be crystal clear, financial derivatives themselves are not the problem because derivatives can have many legitimate and valuable benefits. The problem is an unaccountable shadow derivative system, which fosters systemic risk laundering to public investors and the taxpayer, and which ensures there is no way to discern which derivatives, transactions or submarkets are trustworthy and which ones may be fraudulent. The problem is systemic risk laundering from the unaccountable to the accountable, which can create near unlimited liability for public investors and the United States Treasury – without their knowledge.

 

What is the definition of a bad derivative? Simply a bad derivative launders risk from the aware to the unaware. That’s fraud and unfortunately it is still happening systemically everyday because there is currently little to no risk of detection or prosecution.  The financial crisis exposed all to well the hundreds of billions of dollars of risk that effectively had been laundered to banking counterparties. What overseers have not yet figured out, and what the Financial Crisis Inquiry Commission will need to figure out, is how public investors and U.S. taxpayers still continue today to be the unwitting counterparties to systemic risk laundering by this derivative “black hole” market.

 

The common defenses of systemic risk laundering are: “it is innovation;” “it improves transaction efficiency;” and “it increases liquidity.” The problem with these common defenses is that those who use them have grown confident that they work as “get out of jail free cards.”

  • They know consumers and policymakers prize “innovation,” even if all innovation is not good, because crooks can innovate too. They know screaming innovation is like screaming fire at a fire-mans’ convention, everyone reflexively will rush to their aid no questions asked.
  • They also know that consumers and policymakers love technology, and that they really don’t understand it very well, but assume its all good and efficiency enhancing. The big mistake policymakers have made here is that they have allowed arbitrageurs and flash traders to use technology advances to force a redefinition of market efficiency as transaction speed in milliseconds rather than what true market efficiency is — clearing supply with demand based on a public market price. The two are related but NOT the same.
  • They also deflect scrutiny by warning about threats to “liquidity.” While liquidity is exceptionally important as the financial crisis re-proved, it is not an absolute, nor should liquidity be used as cover to hide risk laundering or risk dumping without transparency to the public markets which are directly affected by the risk transfer.    

 

So what’s the solution? In a word, it is accountability.

  • First, completely repeal the chaos and fraud fostering CFMA provisions that grant effective safe harbor from any accountability.
  • Second, foster the free flow of market information between derivative and public markets by treating any effort to hide necessary derivative market information from the owners of the underlying assets to be a big enforcement red flag of fraudulent activity.
  • Third, require all derivative financial instruments be screened for risk laundering using a Systemic Risk Prevention Framework and Derivative Accountability Checklist like the one included at the end of this piece.     

 

In conclusion, the Government’s bipartisan decision a decade ago to allow derivatives to be unaccountable is another major root cause behind the hyper-stress on the financial system and the unprecedented destabilization of the economy. Imagine how much more stability, trust, confidence, investment and growth there could be if the all derivative financial instruments that affect the value and stability of publicly-traded assets were in fact accountable and not systematically laundering risk to the unaware public investor and taxpayer.

 

* * * * *

 

Note:

  • Don’t miss the recommended “Systemic Risk Prevention Framework and Derivative Accountability Checklist” below.
  • Don’t miss the first part of this research series: “Indexing into the Ditch – Financial Crisis Root Causes – Part I” Click here.

 

Scott Cleland is President of Precursor LLC, an industry research and consulting firm, and was the Founding Chairman of the Investorside Research Association. Click here for Cleland’s Biography.

 

 

Systemic Risk Prevention Framework

Derivative Accountability Checklist

 

All of the thousands of new derivative financial instruments and systemic practices that have emerged over the last decade since the CFMA created a safe harbor from accountability need to be audited and evaluated for unaccountable systemic risk and fraud.

 

  1. What asset, instrument, or market is the derivative dependent or predicated upon?
  2. Does the derivative’s second purpose conflict with, or undermine, the first purposes/value of the underlying public asset, instrument, or market that the derivative is derived from?
  3. How is the derivative interconnected with other assets, instruments, markets or counterparties? And to what extent is that interconnectedness reasonably transparent and known by all the affected parties?
  4. What are the side effects, externalities, and long-term/cumulative effects of the derivative?
  5. Does the derivative enhance or detract from the underlying asset, instrument, or market?
  6. Does the derivative undermine or break any linkage/relationship/balance between:
    1. Supply and demand?
    2. Risk and reward?
    3. Borrower and lender?
    4. Short and long term?
    5. Risk and insurance?
  7. As the derivative scales in usage could it foster systemic:
    1. Market momentum?
    2. Market speculation?
    3. Misrepresentation?
    4. Front running?
    5. Destabilization?
  8. Is the derivative’s effect prone to undermining or discouraging capital formation?
  9. Is the derivative’s effect prone to undermining market efficiency in reaching price equilibrium?
  10. How could the derivative be susceptible to fraud or manipulation?
  11. Does the derivative transfer risk transparently and with fair representation?
  12. Does the derivative have independent research coverage?
  13. How is the derivative accountable and to what/whom?
  14. What are the accountability measures, (audit, internal controls, etc.) for the derivatives algorithms or quant models?
  15. What independent third party audits and creates accountability for ensuring integrity of the algorithms and computer code that undergird these virtual derivative exchanges/systems?

 

 

 

I was surprised that the Wall Street Journal editorial page printed Andy Kessler’s datatopian rant today, which essentially calls for the Federal Government to economically regulate the competitive broadband Internet as a monopoly and move away from a market-driven property rights model for mobile Internet infrastructure.

After one reads Mr. Kessler’s compilation of datatopian platitutudes and selective analysis, please consider the litany of datatopian assumptions (below), which undergird Mr. Kessler’s regulatory recommendations.

  • Mr. Kessler’s: “Why AT&T Killed Google Voice: Telecom operators are yesterday’s business. It’s time for a national data policy that encourages innovation.”

Mr. Kessler’s Datatopian Assumptions:

First, assume a broadband pipe(s).

Second, assume broadband/Internet works, always.

Third, assume all the billions of daily Internet transmissions just happen — perfectly.

Fourth, assume everyone can always use as much bandwidth as they want.

Fifth, assume its all free.

Sixth, assume broadband doesn’t need return on investment.

Seventh, assume that the broadband competition everyone sees everyday in TV/online/print advertising doesn’t exist.

Eighth, assume only Silicon Valley companies can be trusted.

Ninth, assume only Silicon Valley companies can innovate.

Tenth, assume Government policy/regulation is the wellspring of market innovation.

In short, assume that datatopia can be within our grasp, if we would only listen to Silicon Valley and trust in Government economic regulation.

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