Modularity, Vertical Integration, and Open Access Policies: Towards A Convergence of Antitrust and Regulation In The Internet Age

This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in assessing whether regulation should mandate open access to information platforms. The authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms in the future and facilitate a true convergence between antitrust and regulatory policy.

First Principles for an Effective Rewrite of the Telecommunications Act of 1996

The increasing centrality of the Internet in modern communications, together with massive changes in the landscape of the telecommunications market, have intensified the calls for Congress to overhaul the Telecommunications Act of 1996. In this paper, we analyze this looming legislative challenge by dividing it into two sets of issues: first, issues concerning the proper substance of telecommunications policy reform; and, second, issues concerning the appropriate institutions for carrying out that reform. In Part I, we argue that Congress should require regulators to adhere more closely to (and justify departures from) basic antitrust principles in developing the substance of competition policy. In particular, we explore how those principles would have brought greater predictability and analytical rigor to the FCC's implementation of statutory provisions requiring incumbent telephone providers to lease parts of their networks to competitors. Moreover, we explain how antitrust principles can now inform the current debate over whether to regulate broadband platforms to prevent discrimination against independent providers of applications like voice over Internet protocol. In Part II, we turn to Congress's institutional choices in reforming telecommunications regulation.Despite our advocacy for antitrust-oriented rules of decision, we argue for a continued reliance on the FCC, rather than antitrust courts, as the appropriate institution for superintending the efficient development of competition throughout the industry.Not only does the FCC enjoy specialized expertise in the economics and technology of the telecommunications industry, it also enjoys a distinct advantage over courts in developing and enforcing complicated ,and necessary,prescriptive rules, such as those governing interconnection and its associated intercarrier fees. At the same time, the FCC will increasingly need to refocus its energies from prescriptive regulation to a new emphasis on after-the-fact enforcement and market-monitoring, much like the role played today by the Federal Trade Commission.

Toward a Next Generation Regulatory Strategy

The FCC is now facing a set of issues that will help shape the future evolution of the Internet and the role of government in its development. In particular, the FCC is in the midst of designing a regulatory regime for broadband platforms. To do so, the FCC must decide both on the appropriate regulatory classification for such platforms and what legal rules (if any) should govern access to such platforms. This Article explains how the FCC, using its ancillary jurisdiction authority under Title I of the Communications Act, can develop a reactive regulatory regime that examines allegations of discriminatory access based on a factual record through complaint proceedings. This approach envisions that the FCC would not follow the prescriptive model of regulation (such as that provided by common carrier regulation), but instead would develop a common law, antitrust-like model that would focus on competition policy concerns that actually arise

The Internet, Innovation, and Intellectual Property Policy

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of information platforms that support the viewing of content-be they instant messaging systems, media players, or Web browsers-face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries--a debate most often played out at the conceptual extremes between the commons and proprietary control approaches to the Internet and intellectual property policy. This Article proposes a competitive platforms model as a new conceptual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face competitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop superior products and enabling them to appropriate rewards from their inventions. Alternatively, where a particular information platform emerges as the dominant one--for example, in the case of Microsoft Windows in the market for PC operating systems--intellectual property protection against the reverse engineering of its platform standard or user interface should recede. As a strategy to implement the competitive platforms model, this Article proposes a reformulation of the fair use and misuse principles--as developed in both copyright and patent law--to provide a unified, clear, and coherent framework for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the federal government to reassume the critical coordination and funding roles they served in the early days of the Internet in order to support the development of the parts of the Internet\u27s information infrastructure that are intrinsically open to all and thus are vulnerable to underinvestment