2014 National Lawyers Convention
In today’s rapidly evolving telecommunications landscape, the development of new technologies and distribution platforms are driving innovation and growth at a breakneck speed across the Internet ecosystem. Broadband connectivity is increasingly important to our civil discourse, our economy, and our future. What is the proper role of government in facilitating robust investment and competition in this critical sector? When technology companies constantly have to reinvent themselves and adapt to survive – what role should government play? Our panel of experts will discuss the current regulatory environment and how government policies – particularly regarding transactions and the Open Internet proceeding – could affect the competitive marketplace.
The Federalist Society's Telecommunications & Electronic Media Practice Group presented this panel on "Competition Policy in the Telecommunications Space" on Thursday, November 13, during the 2014 National Lawyers Convention.
- Mr. Gene Kimmelman, President and CEO, Public Knowledge
- Hon. Maureen K. Ohlhausen, Federal Trade Commission
- Hon. Michael O’Rielly, Federal Communications Commission
- Prof. Christopher S. Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science, and Director, Center for Technology, Innovation & Competition, University of Pennsylvania Law School
- Moderator: Hon. Stephen F. Williams, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit
Mayflower Hotel Litigation Practice Group Podcast
The North Carolina State Board of Dental Examiners is the state agency responsible for regulating the practice of dentistry in North Carolina. Under state law, six of the Board's eight members are practicing dentists elected by the state’s licensed dentists. In response to the Board's enforcement actions against non-dentist teeth-whitening providers, the FTC issued an administrative complaint charging that the Board had engaged in concerted action to exclude competition from those non-dentist providers.
The Board moved to dismiss under the state-action antitrust doctrine, which exempts a State’s anticompetitive actions from federal antitrust scrutiny. The doctrine also exempts the activities of private actors if their conduct is (1) authorized by a clearly articulated state policy to displace competition, and (2) “actively supervised” by state officials. Municipal actors are exempt so long as they act pursuant to a clearly articulated state policy.
The FTC determined that the state-action doctrine did not exempt the Board’s conduct. According to the FTC, a state regulatory body that is controlled by participants in the market that it regulates must be actively supervised by the State—it is treated as a private actor rather than a municipality. Thus, the FTC concluded, even assuming that the Board’s actions were authorized by a clearly articulated state policy, because no state official had “actively supervised” the Board’s enforcement activities, the state-action doctrine did not apply. The Board petitioned for review, which the Fourth Circuit denied. The Fourth Circuit agreed with the FTC that a state agency operated by market participants elected by other market participants is a private actor for purposes of the state-action exemption. And for such agencies, the court reasoned, the State must "exercise sufficient independent judgment and control" to address the “danger” that they are acting “to benefit [their] own membership,” even where their conduct is authorized by a clearly articulated state policy.
The Supreme Court heard oral arguments on October 14. The Court will consider whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.
SCOTUScast 10-20-14 featuring Alexander Volokh
- Prof. Rebecca Haw Allensworth, Vanderbilt University Law School
- Misha Tseytlin, Deputy Attorney General, Office of West Virginia Attorney General
Alexander Volokh October 20, 2014
On October 14, 2014, the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission. The question in this case is whether the state-action exemption from federal antitrust laws applies to a state dental regulatory board when the majority of board members are dental professionals who are elected by other market participants--and thus potential competitors of anyone seeking entry into the dental industry.
To discuss the case, we have Prof. Alexander Volokh, who is an Associate Professor of Law at the Emory University School of Law. Telecommunications & Electronic Media Practice Group Podcast
On January 14, 2014, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Verizon v. FCC, the case regarding the Federal Communications Commission’s Open Internet Order. The decision leaves the door open for the FCC’s regulation of the internet, but strikes down certain provisions of the Order, leaving many to wonder what the future holds for innovation, experimentation, and competition in the online marketplace.
While the court did not unequivocally uphold the Commission’s net neutrality protections, it recognized the FCC’s authority to regulate broadband internet service and access under Section 706 of the Telecommunications Act of 1996, and found that open internet requirements would promote deployment. Specifically, it found support for the Commission’s conclusion that absent open internet requirements, “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” The court also deferred to the FCC’s finding that broadband providers have the ability to impose restrictions on edge providers’ conduct, particularly given end users’ inability to immediately respond to ISPs’ activities in this regard. Nonetheless, the court vacated and remanded the non-discrimination and no-blocking requirements adopted in the Order on the basis that they improperly constitute common carriage regulation of broadband services, but left in place the FCC’s transparency (i.e., disclosure) requirements.
Randy May and John Bergmayer held a spirited discussion about this landmark decision.
- John Bergmayer, Senior Staff Attorney, Public Knowledge
- Randolph J. May, President, The Free State Foundation