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FCC Regulation Versus Antitrust: How Net Neutrality is Defining the Boundaries

61 Pages Posted: 9 May 2011 Last revised: 23 Apr 2013

Babette Boliek

Pepperdine University School of Law

Date Written: February 15, 2011

Abstract

This Article challenges the various jurisdictional theories that underpin the FCC’s net neutrality regulation. The assertion of jurisdiction by the FCC over any aspect of the Internet ecosystem has raised populist, congressional, and even judicial rhetoric to a crescendo and resulted in a recent vote to defund the FCC’s efforts. This Article places the current crisis squarely in context of the long-standing jurisdictional struggle between regulation and antitrust law. These two regimes are often at jurisdictional cross-purposes because, even though they both purport to maximize the social good, they do so by inapposite means. Indeed, there is a policy choice inherent in the very jurisdictional authority permitted each regime – a choice that the FCC’s jurisdictional bases for net neutrality may actually circumvent and obfuscate. Focusing on the Supreme Court’s recent decision in Trinko and the D.C. Circuit’s even more recent decision in Comcast, this Article examines the jurisdictional boundaries between these regulatory and antitrust camps. In analyzing the jurisdictional limits of each through the lens of the net neutrality debate, this Article reveals opportunities for congressional reforms beyond mere rhetoric. To identify problematic uses of regulatory authority, this Article: (i) creates an innovative grouping of possible bases for regulatory authority labeled “satellite jurisdiction,” and (ii) proposes a new framework to classify possible jurisdictional overreach in what the author brands as either procedural or substantive opportunism. Finally, this Article recommends a new standard by which both procedural and substantive jurisdictional opportunism may be tempered and antitrust authority maximized where most salutary and appropriate.

Keywords: FCC, Antitrust, Regulation, Net Neutrality, Network Neutrality, Jurisdiction, Trinko, Comcast

JEL Classification: D42, D43, K20, K21, K23, L13, L40, L50

Suggested Citation

Boliek, Babette, FCC Regulation Versus Antitrust: How Net Neutrality is Defining the Boundaries (February 15, 2011). Boston College Law Review, Vol. 52, No. 1627, 2011; Pepperdine University Legal Studies Research Paper No. 2012/1. Available at SSRN: https://ssrn.com/abstract=1832774

Babette Boliek (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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