Communications Law Commons^™

House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp

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This is a response to a query from the Judiciary Committee of the U.S. House of Representatives, requesting my views about the adequacy of existing antitrust policy in digital markets.

The statutory text of the United States antitrust laws is very broad, condemning all anticompetitive restraints on trade, monopolization, and mergers and interbrand contractual exclusion whose effect “may be substantially to lessen competition or tend to create a monopoly.” Federal judicial interpretation is much narrower, however, for several reasons. One is the residue of a reaction against excessive antitrust enforcement in the 1970s and earlier. However, since that time antitrust …

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

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Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …

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

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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 …

A Market-Oriented Analysis Of The 'Terminating Access Monopoly' Concept, Jonathan E. Nuechterlein, Christopher S. Yoo

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Policymakers have long invoked the concept of a “terminating access monopoly” to inform communications policy. Roughly speaking, the concept holds that a consumer-facing network provider, no matter how small or how subject to retail competition, generally possesses monopoly power vis-à-vis third-party senders of communications traffic to its customers. Regulators and advocates have routinely cited that concern to justify regulatory intervention in a variety of contexts where the regulated party may or may not have possessed market power in any relevant retail market.

Despite the centrality of the terminating access monopoly to modern communications policy, there is surprisingly little academic literature …

Teece's Competing Through Innovation, Herbert J. Hovenkamp

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This essay reviews David J. Teece's book, Competing Through Innovation: Technological Strategies and Antitrust Policies (2013).

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

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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) …

Competition Policy And The Technologies Of Information, Herbert J. Hovenkamp

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When we speak about information and competition policy we are usually thinking about oral or written communications that have an anticompetitive potential, and mainly in the context of collusion of exclusionary threats. These are important topics. Indeed, among the most difficult problems that competition policy has had to confront over the years is understanding communications that can be construed as either threats to exclude or as offers to collude or facilitators of collusion.

My topic here, however, is the relationship between information technologies and competition policy. Technological change can both induce and undermine the use of information to facilitate anticompetitive …

Technological Determinism And Its Discontents, Christopher S. Yoo

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This book review takes a critical review of the claim advanced by Susan Crawford in Captive Audience that the merger between Comcast and NBC Universal would harm consumers and that policymakers should instead promote common carriage regulation and subsidize municipal symmetrical gigabit fiber-to-the-home (FTTH). First it evaluates the extent to which next-generation digital subscriber lines (DSL) and wireless broadband technologies can serve as effective substitutes for cable modem service, identifying FCC data showing that the market has become increasingly competitive and likely to continue to do so. Furthermore, the market is not structured in a way that would permit the …

Merger Review By The Federal Communications Commission: Comcast-Nbc Universal, Christopher S. Yoo

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The Communications Act of 1934 created a dual review process in which mergers in the communications industry are reviewed by the Federal Communications Commission (FCC) as well as the antitrust authorities. Commentators have criticized dual review not only as costly and redundant, but also as subject to substantive and procedural abuse. The process of clearing the 2011 Comcast-NBC Universal merger provides a useful case study to examine whether such concerns are justified. A review of the empirical context reveals that the FCC intervened even though the relevant markets were not structured in a way that would ordinarily raise anticompetitive concerns. …

Possible Paradigm Shifts In Broadband Policy, Christopher S. Yoo

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Debates over Internet policy tend to be framed by the way the Internet existed in the mid-1990s, when the Internet first became a mass-market phenomenon. At the risk of oversimplifying, the Internet was initially used by academics and tech-savvy early adopters to send email and browse the web over a personal computer connected to a telephone line via networks interconnected through in a limited way. Since then, the Internet has become much larger and more diverse in terms of users, applications, technologies, and business relationships. More recently, Internet growth has begun to slow both in terms of the number of …

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

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Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step would …

The Wires Go To War: The U.S. Experiment With Government Ownership Of The Telephone System During World War I, Michael A. Janson, Christopher S. Yoo

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One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation. What is not widely known is how close the United States came to falling in line with the rest of the world. For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system. A close examination of this episode sheds new light into a number of current policy issues. The history confirms …

Is There A Role For Common Carriage In An Internet-Based World?, Christopher S. Yoo

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During the course of the network neutrality debate, advocates have proposed extending common carriage regulation to broadband Internet access services. Others have endorsed extending common carriage to a wide range of other Internet-based services, including search engines, cloud computing, Apple devices, online maps, and social networks. All too often, however, those who focus exclusively on the Internet era pay too little attention to the lessons of the legacy of regulated industries, which has long struggled to develop a coherent rationale for determining which industries should be subject to common carriage. Of the four rationales for determining the scope of common …

Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp

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In its Keogh decision the Supreme Court held that although the Interstate Commerce Act did not exempt railroads from antitrust liability, a private plaintiff may not recover treble damages based on an allegedly monopolistic tariff rate filed with a federal agency. Keogh very likely grew out of Justice Brandeis's own zeal for regulation and his concern for the protection of small business — in this case, mainly shippers whom he felt were protected from discrimination by filed rates. The Supreme Court's Square D decision later conceded that Keogh may have been “unwise as a matter of policy,” but reaffirmed it …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

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In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Promoting The Buildout Of New Networks Vs. Compelling Access To The Monopoly Loop: A Clash Of Regulatory Paradigms, Christopher S. Yoo

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No abstract provided.

Toward A Unified Theory Of Access To Local Telephone Systems, Daniel F. Spulber, Christopher S. Yoo

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One of the most distinctive developments in telecommunications policy over the past few decades has been the increasingly broad array of access requirements regulatory authorities have imposed on local telephone providers. In so doing, policymakers did not fully consider whether the justifications for regulating telecommunications remained valid. They also allowed each access regime to be governed by its own pricing methodology and set access prices in a way that treated each network component as if it existed in isolation. The result was a regulatory regime that was internally inconsistent, vulnerable to regulatory arbitrage, and unable to capture the interactions among …

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

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On April 18-19, 2008, the University of Pennsylvania Law School hosted a landmark conference on “The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective.” This conference was the first major event for Penn’s newly established Center for Technology, Innovation, and Competition, a research institute committed to promoting basic research into foundational frameworks that will shape the way policymakers think about technology-related issues in the future. The breakup of AT&T represents an ideal starting point for reexamining the major themes of telecommunications policy that have emerged over the past quarter century. The conference featured a keynote address by …

What Can Antitrust Contribute To The Network Neutrality Debate?, Christopher S. Yoo

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Over the course of the last year, policymakers have begun to consider whether antitrust can play a constructive role in the network neutrality debate. A review of both the theory and the practice of antitrust suggests that it does have something to contribute. As an initial matter, antitrust underscores that standardization and interoperability are not always beneficial and provides a framework for determining the optimal level of standardization. In addition, the economic literature and legal doctrine on vertical exclusion reveal how compelling network neutrality could reduce static efficiency and show how mandating network neutrality could impair dynamic efficiency by deterring …

Mandating Access To Telecom And The Internet: The Hidden Side Of Trinko, Daniel F. Spulber, Christopher S. Yoo

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Antitrust has long played a major role in telecommunications policy, demonstrated most dramatically by the equal access mandate imposed during the breakup of AT&T. In this Article we explore the extent to which antitrust can continue to serve as a source of access mandates following the Supreme Court's 2004 Trinko decision. Although Trinko sharply criticized access remedies and antitrust courts' ability to enforce them, it is not yet clear whether future courts will interpret the opinion as barring all antitrust access claims. Even more importantly, the opinion contains language hinting at possible bases for differentiating among different types of access, …

Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo

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"Net neutrality" has been among the leading issues of telecommunications policy this decade. Is the neutrality of the Internet fundamental to its success, and worth regulating to protect, or simply a technical design subject to improvement? In this debate-form commentary, Tim Wu and Christopher Yoo make clear the connection between net neutrality and broader issues of national telecommunications policy.

Network Neutrality And The Economics Of Congestion, Christopher S. Yoo

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No abstract provided.

Architectural Censorship And The Fcc, Christopher S. Yoo

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Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …

Beyond Network Neutrality, Christopher S. Yoo

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In this Article, Professor Yoo takes issue with the emerging scholarly consensus in favor of ""network neutrality,"" which would prohibit network owners from employing proprietary protocols or entering into exclusivity agreements with content providers that would reduce the transparency of the Internet. Economic theory suggests that network neutrality advocates are focusing on the wrong policy problem. Rather than directing attention on the market for Internet content and applications, the segments of the industry that are the most competitive and the most likely to remain that way, communications policy would be better served if the focus were placed on the segment …

Would Mandating Network Neutrality Help Or Hurt Broadband Competition? A Comment On The End-To-End Debate, Christopher S. Yoo

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No abstract provided.

New Models Of Regulation And Interagency Governance, Christopher S. Yoo

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No abstract provided.

Rethinking The Commitment To Free, Local Television, Christopher S. Yoo

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One of the most enduring tenets of U.S. television policy has been the commitment to localism. I suggest that the FCC's localism policy can be disaggregated into four, more specific commitments: (1) the preference for locally oriented over nationally oriented programming, (2) the preference for free (i.e., advertising-supported) over pay television, (3) the preference for single-channel over multi-channel television technologies, and (4) the preference for incumbents over new entrants and new technologies. I then analyze each of these commitments in light of what is perhaps the most distinctive feature of the television industry, which is the fact that its cost …

Access To Networks: Economic And Constitutional Connections, Daniel F. Spulber, Christopher S. Yoo

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A fundamental transformation is taking place in the basic approach to regulating network industries. Policy makers are in the process of abandoning their century-old commitment to rate regulation in favor of a new regulatory approach known as access regulation. Rather than controlling the price of outputs, the new approach focuses on compelling access to and mandating the price of inputs. Unfortunately, this shift in regulatory policy has not been met with an accompanying shift in the manner in which regulatory authorities regulate prices. Specifically, policy makers have continued to base rates on either historical or replacement cost. We argue that …

Vertical Integration And Media Regulation In The New Economy, Christopher S. Yoo

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Recent mergers and academic commentary have placed renewed focus on what has long been one of the central issues in media policy: whether media conglomerates can use vertical 'integration to harm competition. This Article seeks to move past previous studies, which have explored limited aspects of this issue, and apply the full sweep of modern economic theory to evaluate the regulation of vertical integration in media-related industries. It does so initially by applying the basic static efficiency analyses of vertical integration developed under the Chicago and post-Chicago Schools of antitrust law and economics to three industries: broadcasting, cable television, and …

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

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Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The ""speech hierarchy"" …