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November 2005 (previous | next)

Thursday, November 17, 2005

BITS and Trinko: A Question

In re-reading the staff discussion draft (v. 2.0) of the BITS Act, I wonder how it would be construed in light of Trinko, and what would be BITS (v. 2.0)'s effect under Trinko in essentially walling off the Internet space from antitrust scrutiny?

I don't mean this as a cute or loaded question, but rather I sincerely wonder whether BITS with Trinko still vital as precedent would make the respective layers of the Internet realtively antitrust-free? I think the mechanics would be as follows:

can be read a number of ways, but it seems to me the best readings are as an institutional competence/separation of powers decision. In essence, the Court said that if Congress creates a prophylactic regulatory system that encompasses an entire industry sector, and if that system governs the economic and competitive relationships within that sector, then traditional antitrust will yield to that regulatory scheme. This is because the interrelation between the two systems of law could be potentially quite hazardous, and further because the theory of an administrative occupation of the regulatory field makes the agency more competent than the court to make the relevant decisions.

BITS (v. 2.0), meanwhile, extends the reach of the FCC's jurisdiction clearly and wholly within the Internet space. Instead of the current focus on physical networks, BITS gives the FCC regulatory authority over the logical (net neutrality mandate/interconnection) applications (VoIP) and content (broadcast rules) of the Internet protocol stack.

With the FCC then clearly having regulatory power over the entire Internet protocol stack, to what degree then does antitrust and competition policy fall by the wayside in favor of the specific mandates in the act?

Please discuss....this has to draw Professor Speta out.

posted by Ray Gifford @ 6:47 PM | Legal

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