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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16 Michigan Telecomm. & Tech. L. Rev. 1 (2009). Babette E.L. Boliek, Associate Professor of Law at Pepperdine University School of Law.
The imposition of network neutrality regulation on the mobile telecommunications market puts consumers at risk of facing higher prices and fewer Internet access options. The decision to regulate the mobile industry, which emerged from the network neutrality debate originally confined to telephone and cable ISPs, has not been disciplined by consideration of the key empirical question: Will the proposed network neutrality regulation increase consumer welfare in the wireless Internet access market. In addressing this question, I employ an econometric model to examine the possible consumer welfare effects of a zero-price access rule proposed to assure neutral access of applications and equipment to the wireless Internet networks. Since no data yet exist for direct analysis, the consumer welfare effects of past price and entry regulation are presented as predictors of future regulatory outcomes. The empirical findings,which have significant regulatory policy implications, show that whereas mobile telecommunications price regulation has been ineffective at enhancing consumer welfare, regulation increasing market entry conveys distinct consumer benefits. Accordingly, I conclude that to enhance consumer welfare, network neutrality regulation, such as the proposed zero-price access rule, should be discouraged in favor of regulation facilitating investment and market entry. Full text available on SSRN: http://ssrn.com/abstract=1129517.
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