Mobilfone of Northeastern Pennsylvania, Inc. v. Commonwealth Telephone Company

CHRISTENSEN, Senior District Judge,

dissenting:

Believing that the case should not have been decided on summary judgment, I respectfully dissent.

Judge Aldisert’s able statement of the case should be supplemented by the observation that all of the allegations of Mobilfone’s Amended Complaint stood unchallenged before the district court at the time the action was dismissed. Among those allegations were that “Commonwealth’s sales and advertising facilities for marketing a one-way service in the greater Wilkes-Barre area is much greater than all of the companies now rendering that service and any potential new entrants combined. . Defendants intend to establish their one-way signaling service in the greater Wilkes-Barre area at anti-competitive, non-com *148 pensatory rates with the necessary result that plaintiffs one-way signaling competition and that of all other radio common carriers will be eliminated in that area. . If Plaintiff is forced out of its signaling service business, it will be unable to economically remain in the mobil[e] phone service business. . . . The defendants are threatening to employ their monopoly power in the telephone service business to monopolize the one-way signaling business in the greater Wilkes-Barre area . . . . [and that] Plaintiff’s one-way signaling business and mobilfe] phone business will suffer serious and irreparable injury unless the defendants are enjoined from committing the foregoing threatened violation of the anti-trust laws.”

Summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions filed in the case show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.Rules Civ.Proc. Particularly in complex antitrust litigation summary judgment should be sparingly used since “[t]rial by affidavit is no substitute for trial by jury which so long has been the hallmark of ‘evenhanded justice’ ”. Poller v. Columbia Broadcasting, 368 U.S. 464, 473 , 82 S.Ct. 486, 491 , 7 L.Ed.2d 458 (1962). In this case there were no affidavits or depositipns tending to pierce the allegations of the complaint. During oral argument counsel for Commonwealth indicated its position here as being that no matter what anti-competitive pressures were used by it against competitors and irrespective of how effective they might prove in eliminating competition, they should be immune from the reach of the antitrust laws.

The majority opinion perceives an anomaly in Mobilfone’s alleging a potential monopoly when, at the time of filing the complaint, it was “the sole facility providing radio-telephone paging service, and was, therefore, a monopoly itself” and “[notwithstanding its own status, it sought the protection of the federal antitrust laws to prevent Commonwealth from becoming its competitor.”

Be this as it may, it is readily apparent that the gist of Mobilfone’s claim in the district court was that Commonwealth intended to and would unless restrained unlawfully use its monopoly power to suppress competitors. While the prayer of its complaint included request for an injunction barring Commonwealth’s entry into the market, the issue before us is quite different — whether as an authorized entrant into the market Commonwealth has complete immunity to utilize its admittedly monopolistic power in related areas to suppress and eliminate competition in the radio-telephone paging service market in which it has not been legally granted a monopoly.

The state PUC did not address itself to the question before us, nor did the FCC. Commonwealth’s entry into the market has been approved at its own request and without compulsion by the state. In that process the latter has indicated no intention of establishing a monopoly of the radio-telephone paging market nor, indeed, of authorizing the achievement of any such monopoly through anti-competitive techniques and strategies of participants in the market.

This case in its present posture does not justify application of the Parker exception. More recent decisions of the Supreme Court and the Third Circuit raise further questions concerning the propriety of extending that doctrine to justify summary judgment under the circumstances of the present case. Cantor v. Detroit Edison Co., 428 U.S. 579 , 96 S.Ct. 3110 , 49 L.Ed.2d 1141 (1976); Duke & Company, Inc. v. Foerster, 521 F.2d 1277 (3d Cir. 1975). The latter decision declined to give a broad reading to Parker and in other respects presaged the holding of Cantor .

As in Duke, reversal of summary judgment seems appropriate in the present case. The resolution of the controlling issue of law might have been close or difficult even after the facts were developed and refined. It seems particularly unwise at this stage to lay down blanket immunity with undifferentiated strokes in the face of the uncontro *149 verted allegations of the complaint. Before doing so I think that at least we should have permitted the development of a factual structure upon the basis of which to rule. Perhaps in that process the real problem would emerge as one of primary jurisdiction rather than antitrust immunity. See Industrial Commun. Sys. Inc. v. Pacific Tel. & Tel. Co., 505 F.2d 152 (9th Cir. 1974).

Accordingly, I would reverse the summary judgment and remand the case for further proceedings.