Law Commons^™

Financing Telecommunications Projects In Asia: A Promising Regulatory Perspective, Rachelle B. Chong, Wendy Chow

Federal Communications Law Journal

Asia's telecommunications market has long been viewed as lucrative and fast growing. As the benefits of a competitive telecommunications market become apparent, many Asian governments recognize that global corporations require, and in fact demand, state-of-the-art telecommunications infrastructure. After several years of strong growth, however, the severe economic crisis that affected all industry segments in Asia caused investors to pause and reevaluate the risks involved in financing infrastructure projects. Despite the recent Asian economic crisis, the overall picture for Asian telecommunications infrastructure projects remains promising. Asian governments continue to liberalize their regulatory schemes, thus reducing regulatory and political risks to investors. …

The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

In 1985, when the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, Maine, chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved. The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. Ultimately, the case was decided on the basis of whether the FCC complied with a preexisting federal law, the Paperwork Reduction Act, in adopting the …

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

Reexamining The Role Of Illinois Brick In Modern Antitrust Standing Analysis, Jeffrey L. Harrison

UF Law Faculty Publications

This Article argues that it is time for either the Court or Congress to reexamine Illinois Brick for the purpose of reconciling it with more general principles of antitrust standing. The overall goals of such an endeavor would be to ensure consistent treatment of similarly situated potential plaintiffs and to rationalize private antitrust enforcement.

The Real Rule Of Reason: Bridging The Disconnect, Michael A. Carrier

BYU Law Review

No abstract provided.

The Evolution Of United States Antitrust Law: The Past, Present, And (Possible) Future, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

As the world’s nations rapidly move from systems in which central planning and monopoly are replaced by free markets,2 it becomes increasingly valuable to consider the histories of competition policy experienced in different nations, on a comparative basis.3 In this article, we focus on the history of antitrust in the United States, the first nation to develop and fully-articulate a competition policy, drawing out themes that may be useful to other countries as they contemplate the shape and direction of their own competition regimes. We show that the American competition policy has reflected an underlying stability and bi-partisanship, but that …

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Faculty Publications

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise …

The Use Of The Antitrust State Action Doctrine In The Deregulated Electric Utility Industry , Jeffery D. Schwarz

American University Law Review

No abstract provided.

Questioning Traditional Antitrust Presumptions: Price And Non-Price Competition In Hospital Markets, Peter J. Hammer

University of Michigan Journal of Law Reform

Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard …

Questioning Traditional Antitrust Presumptions: Price And Non-Price Competition In Hospital Markets, Peter J. Hammer

Law Faculty Research Publications

Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard …

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Antitrust, Michael Eric Ross, Jeffrey S. Cashdan

Mercer Law Review

In 1998 the Eleventh Circuit published eight antitrust opinions. Some of these cases turned on procedural issues; some were decided on the merits. As in previous years, defendants generally were successful, but not always. Each of these decisions is briefly summarized below.

Southern Card & Novelty, Inc. v. Lawson Mardon Label, Inc. concerned the legality of a "full-line forcing" arrangement. Defendant, Lawson Mardon Label, Inc. ("Lawson"), manufactured postcards, which it sold to distributors throughout North America for resale to retail outlets, which in turn sold them to consumers. Lawson manufactured "local view" postcards depicting nonlicensed local images (for example, …

Review: A Philosophy Of International Law, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Copyright, Licensing, And The First Screen , Ronald A. Cass

Michigan Telecommunications & Technology Law Review

As patent, copyright, and other intellectual property rights have assumed greater economic importance, the manner in which those rights are used has come under increased scrutiny. Recently filed antitrust litigation against Microsoft Corporation, for example, focuses on the terms under which Microsoft has licensed its Windows® operating system to computer manufacturers (generally referenced as OEMs, for Original Equipment Manufacturers). In particular, parties to the litigation complain about the license agreements' requirement that the first screen to appear when customers initially turn on ("boot up") a computer display certain features common across all Windows-based platforms. The "first screen provision" has been …

Antitrust Enfocement And High-Technology Markets, William J. Baer, David A. Balto

Michigan Telecommunications & Technology Law Review

Although the antitrust laws apply to all industries, the application must be tempered in each case by the myriad ways in which competition can be modified by structural, behavioral, technological, regulatory, and other characteristics. The Commission applies the antitrust laws with sensitivity to the special characteristics of high-tech industries and of intellectual property, but also with the recognition that--as in other industries--competition plays an important role in spurring innovation and in spreading the benefits of that innovation to consumers. This focus is not new. This balanced approach has roots that go back at least to the 1977 Antitrust Guide to …

Self-Regulation And The Media, Angela J. Campbell

Federal Communications Law Journal

Self-regulation has been portrayed as superior to government regulation for addressing problems of new media such as digital television and the Internet. This Article reviews the literature on self-regulation to define what is meant by the term, to identify the purported advantages and disadvantages of self-regulation, and to identify the conditions needed for its success. It then analyzes the effectiveness of self-regulation by examining instances where self-regulation has been employed in connection with media. After describing and analyzing past uses of self-regulation in broadcasting, children’s advertising, news, alcohol advertising, comic books, movies, and video games, this Article concludes that self-regulation …

The Rise Of America's Two National Pastimes: Baseball And The Law, Cleta Deatherage Mitchell

Michigan Law Review

Mark McGwire's seventieth home run ball sold at auction in January of this year for $3,005,000. In late 1998, Baltimore Orioles owner Peter Angelos sued a former Orioles manager and his daughter in the circuit court of Cook County, Illinois. Angelos alleged that the original lineup card from the 1995 game when Cal Ripken, Jr., broke Lou Gehrig's consecutive game record belongs to the Orioles, not to the former manager and certainly not to his daughter. There may be no crying in baseball, but there is money. And wherever earthly treasure gathers two or more, a legal system arises. From …

Private Property, Economic Efficiency, And Spectrum Policy In The Wake Of The C Block Auction, Brian C. Fritts

Federal Communications Law Journal

In the original spectrum auctions of Personal Communications Services, the FCC designated a portion of the spectrum for woman and minority-owned small businesses (the C block). The Supreme Court’s decision in Adarand v. Pena caused the FCC to redesign the auction with the result that many bidders overvalued this spectrum. Due to this overvaluation, many bidders could not meet their obligations to the FCC. This Note analyzes FCC auction history, the FCC’s response to the original C block auction, how to fix these problems within the given congressional and FCC framework, and argues that the best solution would be to …

Not In My Backyard: The Siting Of Wireless Communications Facilities, Malcolm J. Tuesley

Federal Communications Law Journal

Given the increasing prominence of wireless communications within the broader realm of technological advancement, the deployment of a national infrastructure capable of meeting the demands of PCS is critical. The Telecommunications Act of 1996 takes substantial steps to ensure the expeditious deployment and ultimate success of such technology. The spur of the 1996 Act is necessary to bring otherwise disinterested communities to the table with providers. While the 1996 Act greatly enhances the position of service providers as they deal with local communities, education and cooperation between federal, state and local governments, and service providers offer the greatest potential for …

The Common Law In Cyberspace, Tom W. Bell

Michigan Law Review

Wrong in interesting ways, counts for high praise among academics. Peter Huber's stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications …

Proving The Obvious: The Antitrust Laws Were Passed To Protect Consumers (Not Just To Increase Efficiency), Robert H. Lande

All Faculty Scholarship

Sometimes an entire field goes astray. When its dominant members make a major mistake, an opportunity arises for someone to say, "The emperor has no clothes." This is what happened to the antitrust world during much of the 1970s and 1980s. These circumstances gave me the opening and motivation to write the article that appeared in the Hastings Law Journal in 1982 (Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, hereafter Wealth Transfers).

Monopoly Bundling In Cyberspace: How Many Products Does Microsoft Sell?, Alan J. Meese

Faculty Publications

No abstract provided.

Federal Preemption Of State Universal Service Regulations Under The Telecommunications Act Of 1996, Mark P. Trinchero, Holly Rachel Smith

Federal Communications Law Journal

With the passage of the Telecommunications Act of 1996, Congress revamped federal universal service policy by requiring that universal service support be explicit. The Act also provides that states can supplement federal universal service support with state universal service support. However, under section 254(f) of the Act, state programs must not be "inconsistent with" the FCC’s rules for implementing the Federal Plan. Section 254(f) provides for express preemption of state universal service plans but uses FCC rules as a measure for determining when preemption is required. As a result, the case law governing express preemption by Congress is in and …

Cap-Sized: How The Promise Of The Price Cap Voyage To Competition Was Lost In A Sea Of Good Intentions, Gregory J. Vogt

Federal Communications Law Journal

This Article explores the Federal Communication Commission’s efforts to regulate into being marketplace economic forces through price cap regulation. A comprehensive analysis of the history and policies behind price cap regulation of LECs offers guidance for the future. Ultimately, while progress towards local exchange competition has been made, certain important adjustments should be implemented to allow price caps to achieve their full potential. These changes, consistent with the original theory of price caps, will in turn help speed the transition to competition.

Whither To Regulate?, Patrick A. Miles Jr.

Federal Communications Law Journal

Book Review: Public Policy Toward Cable Television: The Economics of Rate Controls, by Thomas W. Hazlett and Matthew L. Spitzer, The MIT Press and The AEI Press, 1997, 253 pages.

From International Competitive Carrier To The Wto: A Survey Of The Fcc’S International Telecommunications Policy Initiatives 1985-1998, Lawrence J. Spiwak

Federal Communications Law Journal

No abstract provided.

Procompetitive Theories Of Vertical Control, Andy C.M. Chen, Keith N. Hylton

Faculty Scholarship

In this paper, we survey procompetitive theories of vertical arrangements, and examine how these theories could be organized to aid interpretation of antitrust law. Given the ever-expanding body of literature in this area, this is a daunting task which we cannot hope to complete in a single article. Nevertheless, we find a market-structure based survey a helpful approach. We have introduced various procompetitive theories in connection with the market structures in which they are likely to be applicable, though we do not claim they could only operate within a specific market context. Our approach should aid antitrust courts in setting …

Defensive Leveraging In Antitrust, Robin Feldman

Faculty Scholarship

No abstract provided.

Cross-Border Bank Branching Under The Nafta: Public Choice And The Law Of Corporate Groups, Eric J. Gouvin

Faculty Scholarship

This Article examines a question left unresolved after the negotiation of the North American Free Trade Agreement (NAFTA): whether the banks of the member countries should be permitted to engage in the business of banking in the other member countries simply by branching across national borders. Under present law, the United States permits branching subject to extensive restrictions, while Canada and Mexico permit access to their banking markets only by acquisition or establishment of institutions chartered in their countries. While the NAFTA does not provide for unfettered branching across national borders, article 1403(3) of the NAFTA left the issue of …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …