Eighth Brown Bag of the Semester – November 9, 2012

Barbara Cherry

Further Erosion of Consumer Protection Remedies for U.S. Telecommunications: Flawed Federal Preemption Under AT&T Mobility v. Concepcion

Deregulatory policies have shifted reliance from industry-specific regulation of telecommunications and broadband access services to economic competition and legal remedies under other bodies of law.  In the U.S. this shift has created legal gaps, eroding availability of consumer protection remedies. In a recent controversial 5-4 decision in AT&T Mobility v. Concepcion (2011), the U.S. Supreme Court further narrowed the scope of available state judicial remedies for consumers of telecommunications services by interpreting the Federal Arbitration Act to enforce a mandatory arbitration clause and a class arbitration waiver in consumer contracts against a challenge of unconscionability.

Barbara’s presentation examined numerous flaws of the majority’s analysis in this case.  The analysis reflects a complexity theory perspective by looking beyond the flaws identified by the dissenting justices and stressing the Court’s failure to consider the systemic effects of its decision to undermine the role of private enforcement mechanisms both generally under the American legal regime and specifically within the telecommunications sector. The analysis also provides insights for other nations by demonstrating the need to understand the systemic impacts of changes in regulatory policy and governance. Illustratively, the Canadian Supreme Court effectively reached the opposite result in Seidel v TELUS Communications Inc.,expressly recognizing the importance of private enforcement mechanisms in the public interest to increase the effectiveness of the British Columbia Business Practices and Consumer Protection Act.

Barbara A. Cherry (Ph.D., Northwestern University; J.D. Harvard Law School) is Professor of Telecommunications at Indiana University. Her research is primarily focused on evaluation of deregulatory policies, governance structures, comparative analysis of infrastructure industries, and framing of analyses from a complexity theory perspective as applied to telecommunications public policy issues.

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