Antitrust and Trade Regulation Commons^™

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

University of Miami Law Review

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Addictive Technology And Its Implications For Antitrust Enforcement, James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein

Articles

The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will …

The Direct Purchaser Requirement In Clayton Act Private Litigation: The Case Of Apple Inc. V. Pepper , Konstantin G. Vertsman

Catholic University Journal of Law and Technology

More than fifty years after the Supreme Court’s decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp. established the direct purchaser rule, the Supreme Court was provided with an opportunity in Apple Inc. v. Pepper to reevaluate and update the proximate cause standing requirement for litigation under § 4 of the Clayton Act. In the Supreme Court’s 5-4 decision, the majority opinion established a rule that consumers who purchase directly from a monopolist satisfy the direct purchaser standing requirement notwithstanding the internal business structure of the monopolist. This interpretation of the direct purchaser rule, along with the recent reformulation …

Telecommunications: Competition Policy In The Telecommunications Space, Gene Kimmelman, Maureen K. Ohlhausen, Michael O’Rielly, Christopher S. Yoo, Stephen F. Williams

All Faculty Scholarship

In today’s rapidly evolving telecommunications landscape, the development of new technologies and distribution platforms are driving innovation and growth at a breakneck speed across the Internet ecosystem. Broadband connectivity is increasingly important to our civil discourse, our economy, and our future. What is the proper role of government in facilitating robust investment and competition in this critical sector? When technology companies constantly have to reinvent themselves and adapt to survive – what role should government play? This panel of experts at the Federalist Society’s 2014 National Lawyers Convention discussed the current regulatory environment and how government policies – particularly regarding …

Newsroom: Fcc's Sohn On Consumer Protection, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Recent Journalism Awards Won By "Old," "New," And "Hybrid" Media, Robert H. Lande, Thomas J. Horton, Virginia Callahan

All Faculty Scholarship

This compares the quality of the "old" media to that of the "new" media by determining how often each type of media source wins major journalism awards. It divides media sources into three categories: old, new and hybrid. New media is limited to publications that were started purely as online news publications. Old media is classified in the traditional sense to include such newspapers as the New York Times. Hybrid media combines elements of both new and old media. Our research compares the number of Pulitzer Prizes and other major journalism awards won by these three types of media sources …

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

All Faculty Scholarship

As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) …

Tesla And The Car Dealers' Lobby, Daniel A. Crane

Articles

Tesla Motors, the offspring of entrepreneur Elon Musk (who brought us Pay-Pal and SpaceX), is the most exciting automotive development in many decades and a marquee story of American technological dynamism and innovation. The company’s luxury electric cars have caused a sensation in the auto industry, including a review by Consumer Reports calling Tesla’s Model S the best car it ever tested. Despite the acclaim, Tesla faces enormous challenges Despite the acclaim, Tesla faces enormous challenges in penetrating an automotive market that has been dominated for a century by internal combustion engines. Not only must it build cars that customers …

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

Articles

The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …

Should The Internet Exempt The Media Sector From The Antitrust Laws?, Thomas J. Horton, Robert H. Lande

All Faculty Scholarship

This article examines whether the "old media" and the "new media", including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast …

Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan

Michigan Law Review

Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …

Search Neutrality As An Antitrust Principle, Daniel A. Crane

Articles

Given the Internet's designation as "the great equalizer,"' it is unsurprising that nondiscrimination has emerged as a central aspiration of web governance.2 But, of course, bias, discrimination, and neutrality are among the slipperiest of regulatory principles. One person's bias is another person's prioritization. Fresh on the heels of its initial success in advocating a net neutrality principle,' Google is in the uncomfortable position of trying to stave off a corollary principle of search neutrality.' Search neutrality has not yet coalesced into a generally understood principle, but at its heart is some idea that Internet search engines ought not to prefer …

Net Neutrality And Nondiscrimination Norms In Telecommunications, Daniel Lyons

Daniel Lyons

“Net neutrality” refers to the principle that broadband providers should not discriminate when transporting content and applications over the Internet. After several years of debate, the Federal Communications Commission adopted binding net neutrality rules in December 2010. The cornerstone of this regime is a binding rule that forbids broadband providers from unreasonably discriminating when delivering Internet traffic.The prohibition on unreasonable discrimination has a long pedigree in telecommunications law, and net neutrality proponents have long asserted the need to extend that nondiscrimination norm to cyberspace. But the Commission’s net neutrality rules impose far greater obligations on broadband providers than the law …

Bricks, Mortar, And Google: Defining The Relevant Antitrust Market For Internet-Based Companies, Jared Kagan

NYLS Law Review

No abstract provided.

State Regulation Of Resale Price Maintenance On The Internet: The Constitutional Problems With The 2009 Amendment To The Maryland Antitrust Act, Katherine M. Brockmeyer

Washington and Lee Law Review

No abstract provided.

Internet Governance And Democratic Legitimacy, Oliver Sylvain

Federal Communications Law Journal

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC's adjudication of a dispute concerning a major broadband service provider's network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much …

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Federal Communications Law Journal

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article's chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency …

What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton

Articles

Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …

Responsabilidade Civil Dos Robôs? Normas Sociais De Controle Dos Agentes Eletrônicos, Ivo T. Gico

Ivo Teixeira Gico Jr.

Nesta contribuição, discute-se que, mesmo em ambientes cibernéticos, o Direito imposto surge como uma necessidade natural de sistemas sociais complexos.

O surgimento efetivo de robôs e a expansão dos agentes eletrônicos principalmente na Internet impuseram a auto-regulação por normas costumeiras, ontologicamente de adesão espontânea (não cogentes, portanto).

Com o crescimento da rede e a absoluta impessoalidade que agora reina, esse tipo de regramento é simplesmente ineficaz, cabendo ao o Direito positivo delimitar os parâmetros para que a rede evolua e cresça em importância.

In this contribution, the author discusses that, even in cyber environments, tax law emerges as a natural …

Internet 3.0: Identifying Problems And Solutions To The Network Neutrality Debate , Robert M. Frieden

ExpressO

What Internet Service Providers (“ISPs”) can and cannot do to diversify services lies at the core of the debate over network neutrality. In prior generations ISPs had little incentive or technological capability to deviate from plain vanilla best efforts routing for content providers and from standard “all you can eat” subscription terms for consumer access to the World Wide Web. The next generation Internet has the technological capability and ISPs have the commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. …

Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a …

The Law Of Unintended Consequences, Susan Ness

Federal Communications Law Journal

No abstract provided.

The Failure Of Competition Under The 1996 Telecommunications Act, Gene Kimmelman, Mark Cooper, Magda Herra

Federal Communications Law Journal

No abstract provided.

The 1996 Telecommunications Act, Jim Robbins

Federal Communications Law Journal

No abstract provided.

Digital Crossroads, Kathleen Wallman

Federal Communications Law Journal

Book Review: Digital Crossroads: American Telecommunications Policy in the Internet Age, Jonathan E. Nuechterlein & Philip J. Weiser, Cambridge, Mass., MIT Press, 2005, 670 pages.

A review of Digital Crossroads: American Telecommunications Policy in the Internet Age, by Jonathan E. Nuechterlein and Philip J. Weiser, MIT Press, 2005. Most practitioners of communications law are familiar with the necessity of teaching themselves enough economics, engineering, and politics to practice competently and comfortably in an area that is inherently interdisciplinary. Likewise, many professors who teach telecommunications from a variety of disciplinary perspectives are familiar with the frustration of locating a text that …

Rewriting The Telecom Act: An Introduction, Philip J. Weiser

Publications

No abstract provided.

A Horizontal Leap Forward: Formulating A New Communications Public Policy Framework Based On The Network Layers Model, Richard S. Whitt

Federal Communications Law Journal

Over the course of the last several decades, legal and structural fictions have evolved and have been integrated into the reality of communications theory and regulation. In this Article, the Author argues that the development of a "layers approach" to communications regulation of IP networks would lead to greater efficiencies while addressing public policy issues. By reconceptualizing communications regulation along horizontal layers, Mr. Whitt posits that the logical walls surrounding the key components of IP networks should be removed to promote increased functionality of communications oversight and management. In this way, the outmoded vertical separation associated with the legal legacy …

Staying Afloat In The Internet Stream: How To Keep Web Radio From Drowning In Digital Copyright Royalties, Emily D. Harwood

Federal Communications Law Journal

In the 1990's, the development of "streaming" technology allowed webcasters to begin broadcasting music on the Internet. The public took advantage of a plethora of free media players, and the number of web-based radio stations soared. However, a crippling dispute over broadcast rates left the viability of this technology in doubt. This Note criticizes current policies that curtail radio streaming by providing harsh financial restrictions on webcasters. In looking to the future, this Note argues that Congress should extend licensing exemptions to cover those Internet stations most like their AM/FM counterparts who do not have to pay additional fees.

Introduction: A Regulatory Regime For The Internet Age, Philip J. Weiser

Publications

No abstract provided.

Ub Viewpoint – Aol/Microsoft Settlement Could Harm Consumers, Robert H. Lande

All Faculty Scholarship

No abstract provided.