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Articles 1 - 30 of 51
Full-Text Articles in Law
Space, The Final Frontier-Expanding Fcc Regulation Of Indecent Content Onto Direct Broadcast Satellite, John C. Quale, Malcolm J. Tuesley
Space, The Final Frontier-Expanding Fcc Regulation Of Indecent Content Onto Direct Broadcast Satellite, John C. Quale, Malcolm J. Tuesley
Federal Communications Law Journal
The vast majority of viewers today receive video programming from multichannel video programming providers-mostly cable television or direct broadcast satellite ("DBS")-rather than directly over-the-air from broadcast stations. While the FCC has not hesitated to sanction broadcasters for what it deems to be indecent content, it consistently has found that it lacks the authority to regulate indecency on subscription services like cable television. Citizens groups and some in Congress now seek to extend indecency restrictions to DBS services under existing law or through the enactment of new legislation. It is true that DBS, because of its use of radio spectrum to …
Summing Up The Public Interest: A Review Of "Media Diversity And Localism: Meaning And Metrics," Edited By Philip M. Napoli, Victoria F. Phillips
Summing Up The Public Interest: A Review Of "Media Diversity And Localism: Meaning And Metrics," Edited By Philip M. Napoli, Victoria F. Phillips
Federal Communications Law Journal
Philip Napoli's Media Diversity and Localism: Meaning and Metrics, is a thoughtful and first of its kind compilation of some of the ongoing research and scholarship examining the concepts of diversity and localism underlying the Federal Communications Commission's public interest standard in broadcasting. The collection of essays addresses these fundamental goals from a variety of disciplines beyond the law, including political science, communications policy, sociology, and economics. The essays explore the values associated with these two goals, apply performance metrics to assess existing regulatory policies intended to preserve and promote these goals, and reflect on their meaning in the new …
Deal Or No Deal: Reinterpreting The Fcc's Foreign Ownership Rules For A Fair Game, Cindy J. Cho
Deal Or No Deal: Reinterpreting The Fcc's Foreign Ownership Rules For A Fair Game, Cindy J. Cho
Federal Communications Law Journal
With the changing racial and linguistic composition of the American market and the emerging strength of the Mexican market, American broadcast companies are facing a new competitive playing field.. Section 310 of the Communications Act of 1934 ("Act") establishes the guidelines for when a foreign national is eligible to apply for a broadcast license from the FCC. The FCC currently interprets these limits on foreign ownership very leniently, favoring a policy of deregulation in an attempt to further open up the United States market. This Note argues that once foreign nationals have cleared the hurdle of § 310's foreign ownership …
Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger
Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger
Michigan Law Review
State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in Pike …
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Michigan Law Review
In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement …
Of Protection And Sovereignty: Applying The Computer Fraud And Abuse Act Extraterritorially To Protect Embedded Software Outsourced To China , Carrie Greenplate
Of Protection And Sovereignty: Applying The Computer Fraud And Abuse Act Extraterritorially To Protect Embedded Software Outsourced To China , Carrie Greenplate
American University Law Review
No abstract provided.
Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr
Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr
Michigan Law Review
This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part IV …
Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane
Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane
Washington and Lee Law Review
Antitrust law is moving away from rules (ex ante, limited factor liability determinants) and toward standards (ex post, multi-factor liability determinants). This movement has important consequencesfor the structure of antitrust adjudication, including shifting ultimate decision-making down the legal hierarchy (in the direction ofjuries, trial courts sitting as factfinders, and administrative agencies) and increasing the importance of economic experts. The efficiency consequences of this trend are often negative. Specifying liability determinants as open-ended, unpredictable standards increases litigation costs, chills socially beneficial industrial practices, allocates decisionmaking on microeconomic policy to unqualified juries, andfacilitates strategic misuse of antitrust litigation by rent-seeking competitors. Instead …
The Predatory Pricing Puzzle: Piecing Together A Unitary Standard, Kimberly L. Herb
The Predatory Pricing Puzzle: Piecing Together A Unitary Standard, Kimberly L. Herb
Washington and Lee Law Review
No abstract provided.
Tying Conspiracies, Christopher R. Leslie
Tying Conspiracies, Christopher R. Leslie
William & Mary Law Review
Antitrust law has long condemned tying arrangements when they are imposed by a single dominant firm. However, tying jurisprudence does not recognize that tie-ins can also occur as the result of a conspiracy among competitors. Consequently, antitrust doctrine fails to appreciate the unique anticompetitive dangers of concerted tying arrangements. After providing real-world examples of tying conspiracies, Professor Leslie explains how concerted tying arrangements present a far greater threat to competitive markets than traditional, unilaterally imposed tying arrangements. Because tying jurisprudence evolved without considering the existence or effects of concerted tie-ins, the current test for evaluating the legality of tying arrangements …
Antitrust—Robinson-Patman Act—No Salt Added: The Supreme Court Promotes Healthy Competition By Taking The Salt Out Of The Robinson-Patman Act. Volvo V. Reeder-Simco, 126 S. Ct. 860 (2006)., James Paul Purnell
University of Arkansas at Little Rock Law Review
Arkansas's current path in nursing-home regulation is leading to the destruction of its nursing-home system. In particular, the Arkansas Resident's Rights Statute favors plaintiffs and allows for high damage awards. The statute's civil enforcement provision lacks guidelines for the application of the statute or the award of damages. In February of 2006, the Arkansas Supreme Court decided Health Facilities Management Corp. v. Hughes, a nursing home case concerning the Arkansas Resident's Rights Statute. The court's decision on the issue of liability under the statute was well-reasoned and stayed faithful to the goals of the statute, encouraging nursing-home licensees to live …
Reconciling The Harvard And Chicago Schools: A New Antitrust Approach For The 21st Century, Thomas A. Piraino Jr.
Reconciling The Harvard And Chicago Schools: A New Antitrust Approach For The 21st Century, Thomas A. Piraino Jr.
Indiana Law Journal
No abstract provided.
Antitrust Modesty, Daniel A. Crane
Antitrust Modesty, Daniel A. Crane
Michigan Law Review
Given Hovenkamp's influence and intellect, the publication of The Antitrust Enterprise is a major event, particularly since he sets out, according to the book's jacket, to provide "the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago." Nevertheless, one could quibble with the jacket's claim. Richard Posner substantially updated his own authoritative and compact exposition of antitrust law in 2001. In a 2003 book review, Hovenkamp called Posner's second edition a "marvelous and important book." So, before beginning a review of Hovenkamp's new work, it seems necessary …
Gasoline Prices And Antitrust Law: Fixing The Price-Fixing Dilemma Of Sherman Act § 1 Analysis, Greg Hubbard
Gasoline Prices And Antitrust Law: Fixing The Price-Fixing Dilemma Of Sherman Act § 1 Analysis, Greg Hubbard
Nevada Law Journal
No abstract provided.
The Telecommunications Economy And Regulation As Coevolving Complex Adaptive Systems: Implications For Federalism, Barbara A. Cherry
The Telecommunications Economy And Regulation As Coevolving Complex Adaptive Systems: Implications For Federalism, Barbara A. Cherry
Federal Communications Law Journal
Satisfying the constraints for sustainable regulatory telecommunications policies is more challenging for regulatory regimes based on competition than monopoly. In an earlier paper, Johannes Bauer and I used complexity theory to improve our understanding of the requirements for sustainable telecommunications policies, showing that regulation has a diminishing capacity to achieve specifically desired outcomes and greater attention must be paid to the adaptability of policies and policymaking processes themselves. The present Article examines the implications of the complexity theory perspective for federalism. Federalism is a distinctive (patching) algorithm that confers system advantages for adaptability through diversity and coupling of policymaking jurisdictions-mechanisms …
Competition After Unbundling: Entry, Industry Structure, And Convergence, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak
Competition After Unbundling: Entry, Industry Structure, And Convergence, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak
Federal Communications Law Journal
In the last few years, U.S. telecoms policy has shifted from encouraging the sharing of existing networks to facilitating the deployment of advanced communications networks. Given the large capital expenditures required for these networks, there can be only a few of such networks. In light of the natural forces that limit the number of facilities-based suppliers, it is vital for policymakers to investigate and implement rules that make markets more conducive to facilities-based entry and eliminate any existing rules that discourage deployment. The purpose of this Article is to provide a simple conceptual framework to evaluate the effect of particular …
Does Video Delivered Over A Telephone Network Require A Cable Franchise?, Robert W. Crandall, J. Gregory Sidak, Hal J. Singer
Does Video Delivered Over A Telephone Network Require A Cable Franchise?, Robert W. Crandall, J. Gregory Sidak, Hal J. Singer
Federal Communications Law Journal
This Article examines whether, on legal or policy grounds, video services provided over a telephone network should be regulated as a traditional cable service or whether a different approach is warranted. The Authors find that municipal franchise requirements for video services provided over telephone networks would reduce consumer welfare. The Authors estimate that, even without considering any welfare gains owing to higher quality, the consumer welfare gains from entry exceed the potential loss in franchise fee revenue to municipalities by a factor of nearly three to one.
The Korea Fair Trade Commission's Decision On Microsoft's Tying Practice: The Second-Best Remedy For Harmed Competitors, Sejin Kim
Washington International Law Journal
In the spring of 2006, the Korea Fair Trade Commission (“KFTC”) imposed a fine of approximately thirty-one million dollars and a cease-and-desist order against Microsoft Corporation (“Microsoft”) for bundling its Windows Media Service (“WMS”), Windows Media Player (“WMP”), and Windows Messenger (“WM”) into its personal computer operating system “Windows.” Specifically, the KFTC ordered Microsoft to completely separate WMS from Windows and provide two different versions of Windows: one bundled with WMP and WM and the other without these two programs. It is also noteworthy that the KFTC required Microsoft to include the “Media/Messenger Centre” in the bundled version to help …
Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr
Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr
Michigan Law Review
In many ways, the Supreme Court's opinion of F. Hoffmann-LaRoche Ltd. V. Empagran S.A. raised more questions than it answered. Growing out of the massive international vitamins cartel uncovered in the 1990s, Empagran presented a scenario in which all parties were foreign and all conduct occurred abroad. Although it is "well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States," Empagran presented the Court with the first truly foreign antitrust case. It involved not only foreign conduct, but also foreign plaintiffs …
A Tale Of Two Marks, And Other Antitrust Concerns, Pamela Jone Harbour
A Tale Of Two Marks, And Other Antitrust Concerns, Pamela Jone Harbour
Loyola Consumer Law Review
No abstract provided.
Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement , William H. Page, Seldon J. Childers
Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement , William H. Page, Seldon J. Childers
Michigan Telecommunications & Technology Law Review
An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Michigan Telecommunications & Technology Law Review
Currently, more than ninety percent of the world's PCs operate under Windows. To cement its market power, Microsoft has engaged in controversial business practices. Those practices have led to adverse antitrust decisions in the United States, the European Union (EU), and South Korea. Many of these decisions, both judicial and administrative, revolve around Microsoft's bundling, or "tying," of certain subsidiary applications with the Windows operating system, including Internet Explorer and Windows Media Player. In doing so, Microsoft arguably gains a greater than deserved market share with these bundled applications, inhibiting fair competition in the software marketplace. The United States, EU …
Resolving The Circuit Split On Standing In False Advertising Claims And Incorporation Of Prudential Standing In State Deceptive Trade Practices Law: The Quest For Optimal Levels Of Accurate Information In The Marketplace, Kevin M. Lemley
University of Arkansas at Little Rock Law Review
This article has two significant goals. First, it addresses the circuit split on the proper test for standing in false advertising claims under section 43 (a) of the Lanham Act. With slight modification, courts should adopt the reasonable interest test as articulated in two recent opinions authored by Justice Alito while he was sitting on the Third Circuit of Appeals, Second, this article proposes similar prudential standing considerations, along with proposed legislative amendments, for state deceptive trade laws. This section of the article focuses primarily on Arkansas law, but the proposals set forth can be applied to other jurisdictions. The …
The Pension Protection Act Of 2006: An Overview Of Sweeping Changes In The Law Governing Retirement Plans, 40 J. Marshall L. Rev. 843 (2007), Craig C. Martin, Joshua Rafsky
The Pension Protection Act Of 2006: An Overview Of Sweeping Changes In The Law Governing Retirement Plans, 40 J. Marshall L. Rev. 843 (2007), Craig C. Martin, Joshua Rafsky
UIC Law Review
No abstract provided.
Richard Lillich Memorial Lecture: Nurturing A Transnational System Of Innovation, Jerome H. Reichman
Richard Lillich Memorial Lecture: Nurturing A Transnational System Of Innovation, Jerome H. Reichman
Florida State University Journal of Transnational Law & Policy
No abstract provided.
Peru's Too Expensive - I'Ll Get My Cheese From Chile: The Agricultural Market Access Provisions Of The U.S.-Chile Fta And The U.S.-Peru Tpa, Guillermo Gabriel Zorogastua
Peru's Too Expensive - I'Ll Get My Cheese From Chile: The Agricultural Market Access Provisions Of The U.S.-Chile Fta And The U.S.-Peru Tpa, Guillermo Gabriel Zorogastua
Florida State University Journal of Transnational Law & Policy
No abstract provided.
The Robinson-Patman Act And Consumer Welfare: Has Volvo Reconciled Them?, John B. Kirkwood
The Robinson-Patman Act And Consumer Welfare: Has Volvo Reconciled Them?, John B. Kirkwood
Seattle University Law Review
In this article, I address that broader question. In Part II, I summarize the facts and opinions in Volvo, particularly the final section of the majority opinion where the Court observed that Volvo's discrimination was procompetitive. In Part III, I review the growing consensus in antitrust law that the fundamental goal of the antitrust statutes (other than the Robinson-Patman Act) is to promote consumer welfare. Today when most courts say that a practice furthers competition, they mean that it improves consumer welfare-specifically, the welfare of consumers in the relevant market. In Part IV, I use that interpretation of …
The Importance Of History To The Design Of Competition Policy Strategy: The Federal Trade Commission And Intellectual Property Law, William E. Kovacic
The Importance Of History To The Design Of Competition Policy Strategy: The Federal Trade Commission And Intellectual Property Law, William E. Kovacic
Seattle University Law Review
The Article's framework for considering the value of history in shaping strategy is the effort of the Federal Trade Commission (FTC) to apply its competition policy powers to issues involving intellectual property (IP). The Article chooses the example of intellectual property because of its importance to the modern work of the FTC and the increasingly significant place that intellectual property and, more generally, technology-driven innovation hold in the field of competition policy. To provide context for the discussion, Part II of the Article presents a profile of the FTC's modern competition policy initiatives concerning intellectual property. Part III then reviews …
Antitrust Issues In The Settlement Of Patent Disputes, Part Iii, Thomas B. Leary
Antitrust Issues In The Settlement Of Patent Disputes, Part Iii, Thomas B. Leary
Seattle University Law Review
Once again, I will address the issue of litigation settlements between companies that hold patents on pharmaceutical products (sometimes "pioneers") and would-be generic entrants ("generics") who challenge the validity of the patent and/or a claim of infringement. This discussion will focus on the Tamoxifen opinion, with passing reference to other decisions. Obviously, reasonable people can disagree on these issues, but I still believe the Commission's approach in Schering was correct.
Patent Ships Sail An Antitrust Sea, Joseph Scott Miller
Patent Ships Sail An Antitrust Sea, Joseph Scott Miller
Seattle University Law Review
The deeper truths evoked by patent ships sailing an antitrust sea are three. First, free competition is the pervasive, baseline reality, the background norm; patent protection is the temporary, partial exception. Second, we grasp both patent and antitrust policy with a common science: economics. Third, although neither patent nor antitrust law doctrines are good tools for fixing fundamental problems in the other body of law, both bodies of law help us better understand the shortcomings of the other. I explore these ideas in turn, below.