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 the 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 seminal decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP and the D.C. Circuit’s decision in Comcast Corp. v. FCC, this Article examines the jurisdictional boundaries between the 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: (1) creates an innovative grouping of possible bases for regulatory authority labeled “satellite jurisdiction” and (2) proposes a new framework to classify possible jurisdictional overreach in what the author brands as either “procedural opportunism” 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.
Babette E. Boliek, FCC Regulation Versus Antitrust: How Net Neutrality is Defining the Boundaries, 52 B.C.L. Rev. 1627 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss5/2