Monday, April 2, 2012

The Antitrust Remedy as a Red Herring

            With increasing frequency advocates for the most outlandish deregulatory approaches in the telecommunications sector quickly mention antitrust law enforcement as a judicial safeguard.  The problem is there is no antitrust safeguard if the FCC acts to deregulate.  Several Supreme Court cases, e.g., Trinko and Linkline clearly state that if the FCC sees no reason to intervene and impose regulatory requirements, a court should not second guess the Commission, or expect general antitrust law to impose greater safeguards than what the FCC considers necessary.

            In a nutshell this means that the FCC has got to get it right first time, every time.  While a court might defer to the Commission’s deregulatory expertise, such deference will not occur on a recalibration that imposes greater regulation.  Likewise if the FCC considers the marketplace sufficiently competitive, then no court will identify market failures necessitating an antitrust remedy. 

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