[Special Section on Net Neutrality] What Can Antitrust Law Contribute to the Network Neutrality Debate?

Abstract

Over the course of the last year, policymakers have begun to consider whether antitrust law can play a constructive role in the network neutrality debate. A review of the theoretical literature and the substantive principles embodied in judicial decisions and current Merger Guidelines suggest that antitrust law does have something to contribute. As an initial matter, antitrust law underscores that standardization and interoperability are not unmitigated goods and provides a framework for determining the optimal level of standardization. The theoretical and empirical literature and the legal doctrine on exclusion integration also counsel against compelling network neutrality in the absence of demonstrated anticompetitive harm. In addition, the Supreme Court’s Trinko decision and the empirical literature on unbundling reveal how network neutrality can deter investment in alternative last-mile technologies. To say that the substantive principles of antitrust law can inform the network neutrality debate is not to say that antitrust courts represent the ideal institutional locus for enforcing a network neutrality mandate. Lingering questions about antitrust courts’ institutional competence to supervise access regimes suggest that agencies like the Federal Trade Commission might well be better served by focusing their efforts on consumer education rather than attempting to use the antitrust laws to impose access requirements on network owners.