Antitrust and Trade Regulation Commons^™

The Information Superhighway: Trolls At The Tollgate, Charles M. Oliver

Federal Communications Law Journal

Prior to the passage of the 1996 Telecommunications Act, policymakers sought funding and regulatory mechanisms capable of fulfilling the vision of an Information Superhighway. Vice President Gore, the Clinton Administration's point person on the issue, initially proposed assessing fees on other sectors of the telecommunications industry to fund construction. Meanwhile, conservatives asserted that deregulation of the industry would achieve the desired result. A compromise ultimately was reached: the 1996 Act requires local exchange carriers to unbundle their networks and provide access at a reasonable cost to competitors. The use of regulatory formulas in lieu of taxes to subsidize a national …

Using Market-Based Spectrum Policy To Promote The Public Interest, Gregory L. Rosston, Jeffrey S. Steinberg

Federal Communications Law Journal

With the increasing demand for spectrum to accommodate emerging technologies, and the discovery that higher frequencies are usable, the FCC has replaced its reliance on administrative mechanisms for allocating spectrum with a more flexible, market-based approach. The FCC can best accomplish its mission of promoting the public interest by continuing to rely on competitive market forces and by establishing a clear and consistent paradigm for approaching allocation, assignment, usage, and other policies. Such a paradigm envisions an FCC that would actively monitor spectrum to remedy situations in which it is not used to its full value; establish mechanisms to reduce …

The Telecommunications Act Of 1996: Codifying The Digital Divide, Allen S. Hammond Iv

Federal Communications Law Journal

The Telecommunications Act of 1996 purports to ensure every American eventual access to advanced telecommunications networks and services, and more immediate access to basic telephone networks and services. This access is essential because it determines the ease with which Americans can acquire an education, obtain employment, control financial affairs, access emergency assistance, and participate in the political process. The interpretation and implementation of the 1996 Act is critical because there is an imminent danger that a large portion of society— in inner cities, near suburbs, and small towns— not be connected to the "national electronic nervous system." To ensure that …

Whither Unregulated Access Competition?, Clayton C. Miller

Federal Communications Law Journal

Book Review: Universal Service: Competition, Interconnection, and Monopoly in the Making of the American Telephone System, by Milton L. Mueller, Jr., MIT Press and AEI Press, 1997, 191 pages.

Hanging Up On Consumers: Why The Fcc Cannot Stop Slamming In The New Telecommunications Market , Christopher R. Day

American University Law Review

No abstract provided.

All Wired Up: An Analysis Of The Fcc's Order To Internally Connect Schools, Roxana E. Cook

Federal Communications Law Journal

The Telecommunications Act of 1996 extends universal service support to schools and libraries. Pursuant to this legislation, the FCC has provided all eligible schools with discounts of between twenty and ninety percent on telecommunications services, Internet access, and internal connections— to a 2.25 billion dollar annual cap. Critics have denounced the subsidy for internal connections as unsupported by the Act's language and outside the FCC's authority. However, based on a plain reading of the statute, on case law, and on legislative history, it is clear that the FCC properly exercised discretion in allocating the potential fund.

Do Guaranteed-Low-Price Policies Guarantee High Prices, And Can Antitrust Rise To The Challenge?, Aaron S. Edlin

Aaron Edlin

Price-matching policies can be highly anticompetitive. They allow firms to raise their prices above competition levels by discriminating in price between informed and uninformed customers. The resulting high prices can persist even when new firms enter the industry, a fact that gives price matching the potential to be much more socially costly than an ordinary monopoly or cartel. At the same time, widespread entry implies that the agreement among sellers that is typical of a Sherman Act price-fixing case may be absent. In this article, Professor Edlin argues that there is nonetheless an analogy between a seller offering (and agreeing) …

Unilateral Refusal To Supply: An Agreement In Disguise?, Hans Henrik Lidgard

Hans Henrik Lidgard

No abstract provided.

Why Coercion Should Be A Defense In Section 1 Cases Involving Vertical Agreements, Chad Plumley

Mercer Law Review

In recent years, antitrust analysis has shifted from historical reasons for wanting to stop agreements in restraint of trade, such as promotion of individual competition, to a more economic based analysis which focuses on efficiency and output. This change in analysis has impacted how coercion is viewed in antitrust analysis. Traditionally, courts looked at whether a party had been coerced to determine if there was a violation of the Sherman Act. In section 1 cases, where the emphasis is on whether there is an agreement, courts have used evidence of coercion to find an agreement between the parties even when …

Multiemployer Bargaining, Antitrust Law, And Team Sports: The Contingent Choice Of A Broad Exemption, Michael C. Harper

Faculty Scholarship

Twenty-four years after pronouncing that "Congress[ ,]... not... this Court[, must remedy] any inconsistency or illogic" in the long standing exemption of baseball, but not other sports from the reach of the antitrust laws,' the Supreme Court last term reduced substantially the uniqueness of Major League Baseball's control over its labor market. The Court did so not by exposing baseball to antitrust attack, but rather by clarifying that restrictions on player labor mobility and freedom of contract imposed by all North American leagues of professional sports teams² also enjoy an exemption from antitrust scrutiny as long as their labor …

Antitrust, Michael Eric Ross, Jeffrey S. Cashdan

Mercer Law Review

The Eleventh Circuit Court of Appeals issued seven antitrust decisions in 1996. Only one opinion addressed substantive antitrust issues. The others turned on procedural or immunity grounds. Antitrust defendants continued their dominance on appeal, prevailing in all but one action.

Multiemployer Bargaining, Antitrust Law, And Team Sports: The Contingent Choice Of A Broad Exemption, Michael C. Harper

William & Mary Law Review

No abstract provided.

From Surrogates To Stories: The Evolution Of Federal Merger Policy, Robert H. Lande, James Langenfeld

All Faculty Scholarship

This article traces the evolution of federal merger policy. It documents how merger enforcement originally was largely based upon very strong structural presumptions. These presumptions gradually eroded and other factors became more and more important in enforcement decisions. Today meger enforcement essentially consists of structural safe harbors and a full rule of reason analysis for any merger not within these safe harbors.

Regulating Patent Holders: Local Working Requirements And Compulsory Licences At International Law, Michael Halewood

Osgoode Hall Law Journal

For decades, industry lobbyists and governments have been mounting pressure on other countries to offer stronger protection for foreign owned intellectual property. This paper seeks to sow dissent among those who feel that the NAFTA and TRIPS agreements represent the triumph of strong intellectual property rights over domestic policy-making alternatives. Focusing on patent law, in particular, this article argues that there are a wide range of policy options open to patent granting countries which both circumscribe patent holder's rights and comply with TRIPS and NAFTA. More specifically, the author argues that TRIPS and NAFTA signatories continue to enjoy relatively broad …

Telecommunications Access In The Age Of Electronic Commerce: Toward A Third-Generation Universal Service Policy, Milton Mueller

Federal Communications Law Journal

Like many other countries, the United States is in the midst of redefining its universal service policy. Access to telecommunications no longer depends on connecting a copper wire line into the home. Rather, universal service depends on how people will access and use the infrastructure around them. The ability to access communications facilities requires an account relationship between the supplier and the user. Therefore, the account relationship, not the presence of a physical connection to the home, should be the focal point of a universal service policy. With the rise of electronic commerce, access hinges on account verification, credit authorizations, …

The Harmonization Of Law And Mexican Antitrust: Cooperation Or Resistance?, James E. Crawford

Indiana Journal of Global Legal Studies

No abstract provided.

Media Mergers: First Step In A New Shift Of Antitrust Analysis?, Keith Conrad

Federal Communications Law Journal

An alarming trend toward concentration of media ownership has been highlighted by Walt Disney's acquisition of Capital Cities/ABC, and Time Warner's acquisition of Turner Broadcasting System. While current antitrust approaches are not expected to stem this trend, antitrust is a constantly evolving area of law. As Chairman of the FTC, Robert Pitofsky is in a position to move antitrust analysis away from the economically focused Chicago School approach, and toward an approach which also considers social and political issues. Consideration of these issues is supported by Pitofsky's own writings and could reduce the trend of media concentration.

Regulating Electronic Money In Small-Value Payment Systems: Telecommunications Law As A Regulatory Model, Randall W. Sifers

Federal Communications Law Journal

A smart card, or stored value card, is a credit card-sized payment mechanism with an embedded integrated circuit chip. Current technology allows value to be placed on the card through an ATM terminal, a telephone equipped with a card reader, or a personal computer equipped with a card reader. The suitability of the card for small-value, high-volume transactions indicates that stored value cards could, to a large extent, replace currency transactions. Existing laws are not tailored to deal with the nature of transactions involving stored value cards, nor do they address nonbank card issuers. The integration of telecommunications and financial …

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Mergers In Western Coal Markets: Conforming Antitrust Analysis To The New Reality, Mark A. Glick, David G. Mangum, Raymond J. Etcheverry

West Virginia Law Review

No abstract provided.

Worth Its Weight In Gold: Legal Analysis Of The Current Appraisal Of Coal Property In West Virginia, Ryan J. Morgan

West Virginia Law Review

No abstract provided.

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

Antitrust And Communications: Changes After The Telecommunications Act Of 1996, Douglas B. Mcfadden

Federal Communications Law Journal

The 1996 Telecommunications Act is a return to competition in telephony which existed at the beginning of the century. The enactment of the '96 Act will significantly change the application of the antitrust laws to communications activities. Prior to the enactment of the '96 Act, telecommunications companies were somewhat immunized from full application of the antitrust laws regarding mergers and acquisitions because of regulation by the Federal Communications Commission and the state public utility commissions. Now, telephone companies will be fully subject to antitrust scrutiny under three schemes: the Clayton Act, the Hart-Scott- Rodino Act, and the FCC public interest …

Fcc Reform: Governing Requires A New Standard, William H. Read, Ronald Alan Weiner

Federal Communications Law Journal

Perhaps one of the most crucial questions legislators need to address after passing the 1996 Act is the reform of the Federal Communications Commission. Some suggest that the Commission should be abolished altogether, while others recommend merely curtailing some of the Commission's responsibilities. However, true reform of the FCC recognizes that the Commission still has a vital role to play in the shaping of the telecommunications industry. Instead of dismantling the FCC altogether, Congress should redefine the public interest standard under which the FCC operates. The 1934 Communications Act charged the Federal Communications Commission with protecting "the public interest." While …

Ideas Of The Marketplace: A Guide To The 1996 Telecommunications Act, Michael I. Meyerson

Federal Communications Law Journal

The 1996 Telecommunications Act has forever transformed the regulatory landscape. The Act contemplates the creation of competition across the full telecommunications field, even in areas such as local telephone service and cable television service that had previously been monopoly controlled. The main combatants in this new marketplace will tend to be even larger companies than those currently dominating the scene. There are numerous dangers, however, that will have to be averted in order for the Act to be successful. The first is that existing monopolies, such as the BOCs and cable operators, will leverage their current power either to gain …

Regulating Competition In The Interexchange Telecommunications Market: The Dominant/Nondominant Carrier Approach And The Evolution Of Forbearance, Scott M. Schoenwald

Federal Communications Law Journal

Although significant competition began to develop in the interexchange market during the mid-twentieth century, the Federal Communications Commission did not undertake a meaningful effort to regulate competitive forces until it commenced its Competitive Carrier rulemaking in 1979. This proceeding, which adopted a market power approach to rate, tariff, and facilities regulation in order to enhance competition, service diversity, and consumer welfare, constituted a fundamental change in the Commission's monopoly-based regulatory approach to telecommunications. The author examines the market power approach to the regulation of competition in the interexchange telecommunications market recently adopted by the FCC, with an emphasis on the …

Consumer Sovereignty: A Unified Theory Of Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

All Faculty Scholarship

This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two component parts of an overarching unity: effective consumer choice (also called consumer sovereignty).

Consumer choice only is effective when two fundamental conditions are present. There must be a range of consumer options made possible through competition, and consumers must be able to choose effectively among these options. The antitrust laws are intended to …

Antitrust: Will It Change The Lives Of Telecommunications Executives?, Deborah V. Ellenberg, Glen O. Robinson, Michael F. Urbanski, James R. Wade

Richmond Journal of Law & Technology

Good afternoon. This is the last panel of the afternoon. I would like to introduce myself. I'm Deborah Ellenberg, one of the hearing examiners at the State Corporation Commission, and I might add, who has a heightened appreciation for the Virginia Commission's wise decision to handle those arbitrations. I am sure on behalf of Howard, Glenn and myself, we thank you for that decision.

Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese

Faculty Publications

No abstract provided.

Price Theory And Vertical Restraints: A Misunderstood Relation, Alan J. Meese

Faculty Publications

The Chicago School of antitrust analysis has exerted a strong influence over the law of vertical restraints in the past two decades, leading the Supreme Court to abandon much of its traditional hostility toward such agreements. Chicago's success has provoked a vigorous response from Populists, who support the traditional approach. Chicago, Populists claim, has improperly relied upon neoclassical price theory to inform the normative and descriptive assumptions that drive its analysis of trade restraints generally and of vertical restraints in particular. This reliance is misplaced, Populists assert, because the real world departs from that portrayed by price-theoretic models and, at …

Continuous Regulatory Reform At The Federal Trade Commission, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.