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Copyright (c) 2001 Berkeley Technology Law Journal 
Berkeley Technology Law Journal

ARTICLE: Open Access to Broadband Networks: A Case Study of the AOL/Time Warner Merger

Spring, 2001

16 Berkeley Tech. L.J. 631


By Daniel L. Rubinfeld+ and Hal J. Singer++


This Article provides a framework for the analysis of the potential effects of the recent AOL/Time Warner merger on the markets for broadband Internet access and broadband Internet content. We consider two anticompetitive strategies that a vertically integrated firm such as AOL Time Warner, offering both broadband transport and portal services, could in theory profitably pursue. First, an integrated provider could engage in conduit discrimination - insulating its own conduit from competition by limiting its distribution of affiliated content and services over rival platforms. Second, an integrated provider could engage in content discrimination - insulating its own affiliated content from competition by blocking or degrading the quality of outside content. After examining the competitive conditions in the broadband portal and transport markets, we evaluate the post-merger incentives of AOL Time Warner to engage in either or both forms of discrimination.

The increasing number of mergers in high-technology industries has raised both horizontal and vertical antitrust issues. While horizontal issues have been the subject of continual scrutiny by the antitrust authorities, the interest in and analysis of vertical issues has come to the forefront during the past eight years. This Article evaluates one concern that can arise in vertical mergers - the possibility that the merged firm will utilize its market power in one market to foreclose competition in related vertical markets. Two recent mergers involving broadband access typify the mix of horizontal and vertical issues that arise in many high-technology mergers. The merger of AT&T and ...
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