Death of the Revolution: the Legal War on Competitive Broadband Technologies

This Article examines the role that law has played in entrenching incumbents in the communications industry, with a particular focus on broadband services. Earlier this decade, several new "revolutionary" broadband technologies threatened to fundamentally disrupt industry structures. This revolution, however, never arrived. The reason, I argue, is that industry consolidation transformed law into a powerful and versatile entrenchment mechanism that stifled these emerging competitive threats. Simply put, the sheer size superiorities enjoyed by today's incumbent companies has created new and self-reinforcing opportunities to use law to entrench their market position. My focus, however, is not upon consolidation itself, but upon the "entrenchment effects" that result from these dynamic intersections of law and consolidation. My analysis implies that many of the current regulatory reforms being considered by the new Obama Administration may be futile. Consolidation has created entities that are, in many respects, more powerful than the law's ability to regulate them. The ultimate implication is that only more aggressive reforms-such as comprehensive structural remedies-can undo this deep entrenchment. * Assistant Professor of Law, South Texas College of Law. I would like to thank Adam Gershowitz, Sharon Finegan, and Marvin Ammori for helpful comments on both drafts and presentations of this paper. All errors are my own. 2 Yale Journal of Law and Technology, Vol. 12 [2010], Iss. 1, Art. 3 http://digitalcommons.law.yale.edu/yjolt/vol12/iss1/3