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

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52 Boston College L. Rev. 1627-86 (2011).  Babette E.L. Boliek, Associate Professor of Law at Pepperdine University School of Law.

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.  Full text available on SSRN here: http://ssrn.com/abstract=1832774.

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