Amicus Curiae Brief — Verizon Communications Inc. v. Law Offices of Curtis v. Trinko, LLP

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supreme court, U.S

111 5

5 N 23 2003

No. 02-682 | OFHCE Ot un CLERK

In the Supreme Court of the United States

VERIZON COMMUNICATIONS INC., PETITIONER

v.

LAW OFFICES OF CURTIS V. TRINKO, LLP

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE FEDERAL TRADE COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

R. HEWITT PATE

Acting Assistant Attorney

General

PAUL D. CLEMENT

WILLIAM E. Kovacic Deputy Solicitor General

General Counsel JEFFREY A. LAMKEN

Federal Trade Commission Assistant to the Solicitor

Washington, D.C. 20403 General

CATHERINE G. O’SULLIVAN

NANCY C. GARRISON

DAVID SEIDMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in reversing the dis-

trict court’s dismissal of respondent’s antitrust claims.

TABLE OF CONTENTS

Interest of the United States and the Federal Trade

Commission

Statement

Summary of argument

Argument:

The 1996 Telecommunications Act neither modifies

the Sherman Act nor eliminates the requirement that

plaintiffs show exclusionary conduct

I. The 1996 Act neither bars nor supports claims

alleging Sherman Act violations

II. The court of appeals erred in failing to require

exclusionary conduct under Section 2 of the

Sherman Act

A. Exclusionary conduct is essential to any

2. In cases asserting a duty to assist rivals,

conduct is exclusionary only if it would

not make economic sense but for the

tendency to impair competition

B. The court of appeals improperly applied the

“essential facilities’ doctrine to dispense with

(IIT)

13

13

14

15

Conclusion

IV

Table of Contents—Continued:

D. Under the proper standards of Section 2

liability, respondent’s complaint fails to

state a claim

TABLE OF AUTHORITIES

Cases:

AT&T v. Iowa Utils. Bd., 525 U.S. 366 (1999) ............

Advanced Health-Care Servs. v. Radford Cmty.

Hosp., 910 F. 2d 139 (4th Cir. 1990)

2, 18, 21

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988)

Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,

472 U.S. 585 (1985)

Associated Press v. United States, 326 U.S. 1

(1945)

Berkey Photo, Inc. v. Eastman Kodak Co., 603

F. 2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 1093

(1980)

Blue Cross & Blue Shield United v. Marshfield Clinic,

65 F.3d 1406 (7th Cir. 1995), cert. denied, 516 U.S.

1184 (1996)

Brooke Group Ltd. v. Brown & Williamson Tobacco

Corp., 509 U.S. 209 (1993) ......

California Motor Transp. Co. v. Trucking Un-

limited, 404 U.S. 508 (1972)

Cavalier Tel. Co. v. Verizon Va., Inc., No. 02-1337,

2003 WL 21153305 (4th Cir. May 20, 2003)

Conley v. Gibson, 355 U.S. 41 (1957)

Copperweld Corp. v. Independence Tube Corp.,

467 U.S. 752 (1984)

Covad Communications Co. v. BellSouth Corp., 299

F.3d 1272 (11th Cir. 2002), petition for cert. pend-

ing, No. 02-1423 (filed Mar. 20, 2003)

Cases—Continued:

DM Research, Inc. v. College of American Patholo-

gists, 170 F.3d 53 (Ist Cir. 1999)

Delaware & Hudson Ry. v. Consolidated Rail Corp.,

902 F. 2d 174 (1990)

Eastman Kodak Co. v. Image Technical Servs.,

Inc., 504 U.S. 451 (1992)

General Indus. Corp. v. Hartz Mountain Corp., 810

F. 2d 795 (8th Cir. 1987)

Goldwasser v. Ameritech Corp., 222 F.3d 390

(7th Cir. 2000)

Hishon v. King & Spalding, 467 U.S. 69 (1984)

Kartell v. Blue Shield of Mass., Inc., 749 F.2d (Ist

Cir. 1984), cert. denied, 471 U.S. 1029 (1985)

Laurel Sand & Gravel, Inc. v. CSX Transp., Inc.,

924 F. 2d 539 (4th Cir.), cert. denied, 502 U.S. 814

(1991)

MCI Communications Corp. v. AT&T, 708 F.2d

1081 (7th Cir.), cert. denied, 464 U.S. 891 (1983) .........

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986)

MetroNet Servs. Corp. v. US West Communica-

tions, 325 F.3d 1095 (9th Cir. 2003)

Olympia Equip. Leasing Co. v. Western Union Tel.

Co., 797 F.2d 370 (7th Cir. 1986)

Otter Tail Power Co. v. United States, 410 U.S. 366

(1993)

Papasan v. Allain, 478 U.S. 265 (1986)

Southern Pac. Communications Co. v. AT&T, 740

F. 2d 980 (D.C. Cir. 1984), cert. denied, 470 U.S.

1005 (1985)

S,ectrum Sports, Inc. v. McQuillan, 506 U.S. 447

(1993)

Standard Oil Co. v. United States, 221 U.S.1

(1911)

Stearns Airport Equip. Co. v. FMC Corp., 170

F.3d 518 (5th Cir. 1999)

VI

Cases Continued: Page

Swierkiewicz v. Sorema, 534 U.S. 506 (2002) 28

Town of Concord v. Boston Edison Co., 915 F.2d 17

(Ist Cir. 1990), cert. denied, 499 U.S. 931 (1991) 12

United States v. AT&T:

524 F. Supp. 1336 (D.D.C. 1981) 24

552 F. Supp. 131 (D. D. C. 1982), aff d, 460 U.S. 1001

(1983) 2

United States v. ALCOA, 148 F.2d 416 (2d Cir.

1945) 14, 15

United States v. Griffith, 334 U.S. 100 (1948) 14, 27

United States v. Microsoft Corp., 253 F.3d 34 (D.C.

Cir.), cert. denied, 534 U.S. 952 (2001) 14

United States v. Otter Tail Power Co., 331 F. Supp.

54 (D. Minn. 1971) 22, 23

United States v. Terminal R. R. Ass n, 224 US. 383

(1912) 24

Verizon Communications, Inc. v. FCC, 535 U.S. 467

(2002) 2, 3, 9, 10

17, 18, 30

Viacom Int l, Inc. v. Time Inc., 785 F. Supp. 371

(S. D. N. V. 1992) 22

Virgin Atl. Airways Lid. v. British Airways PLC,

257 F.3d 256 (2d Cir. 2001) : 26

Walker Process Equip., Inc. v. Food Mach. & Chem.

Corp., 382 U.S. 172 (1965) 14

Statutes and rule:

Communications Act of 1934, 47 U.S.C. 151 et seg.

47 US.C. 202 5

Sherman Act § 2, 15 U.S.C. 2 passim

Telecommunications Act of 1996, Pub. L. No. 104-104,

110 Stat. 56 passim

47 U.S.C. 152 note (§ 601(b), 110 Stat. 143) . 3, 11,

18, 25, 30

47 US.C. 251 3,5

47 U.S.C. 251(c) 30

— — 2

VII

Statutes and rule Continued: P

age

47 U.S. C. 25102) 2

47 U.S.C. 251(c)(4) 2

3

2

4

28

47 U.S.C. 252

47 U.S.C. 252(c)(3)

47 U.S.C. 271

Fed. R. Civ. P. 8(a)(2)

Miscellaneous:

ABA Section on Antitrust, Antitrust Law Develop-

ments (5th ed. 2002) 12, 26

P. Areeda, The “Essential Facility” Doctrine: An

Epithet in Need of Limiting Principles, 58 Antitrust

L.J. 841 (1989) 21

P. Areeda & H. Hovenkamp, Antitrust Law (2d ed.

2002):

Vol. 1A 12

Vol. 3 14, 22, 26

Vol. 3A 8, 10, 17, 21

Letter from Robert A. Curtis, President Z-Tel Network

Services, CC Docket No. 01-338 (Sept. 23, 2002) ............. 3

Order Approving Interconnection Agreement, Case

No. 09-C-0723 (N.Y. Pub. Serv. Comm’n June 13,

1997), available in 1997 WL 410707 3

L. Sullivan & W. Grimes, The Law of Antitrust

(2000) 17

INTEREST OF THE UNITED STATES AND THE

FEDERAL TRADE COMMISSION

The United States and the Federa! Trade Commission

have primary responsibility for enforcing the federal anti-

trust laws, and thus a strong interest in the correct applica-

tion of those laws.

STATEMENT

This case concerns the relationship between the Nation’s

antitrust laws and the Telecommunications Act of 1996 (1996

Telecommunications Act or 1996 Act), Pub. L. No. 104-104,

110 Stat. 56 (47 U.S.C. 251 et seq.). The 1996 Act requires in-

cumbent local exchange carriers to share their facilities with

rivals on certain terms. The question presented concerns

whether the antitrust laws impose similar duties.

1. Section 2 of the Sherman Act, 15 U.S.C. 2, makes it

unlawful for any firm to “monopolize, or attempt to monop-

olize, or combine or conspire with any other person or per-

sons, to monopolize any part of the trade or commerce

among the several States, or with foreign nations.” Section 2

does not specify the elements of monopolization and at-

tempted monopolization. It is nonetheless well established

that Section 2 does not prohibit monopoly status in and of

itself. Standard Oil Co. v. United States, 221 U.S. 1, 62

(1911). Rather, Section 2 makes it unlawful to acquire or

maintain monopoly power through predatory or exclusionary

conduct. See Aspen Skiing Co. v. Aspen Highlands Skiing

Corp., 472 U.S. 585, 602 (1985). That prohibition is most

often enforced through negative duties, i.e., by requiring

firms to refrain from anticompetitive conduct directed

against rivals. But in limited circumstances, Section 2 may

impose an affirmative duty to deal with or assist rivals.

While the antitrust laws provide a general framework for

the protection of competition, the 1996 Telecommunications

Act imposes detailed duties on certain market participants in

order to change the competitive structure of the telecom-

(1)

2

munications industry. See Verizon Communications, Inc. v.

FCC, 535 U.S. 467, 475, 489 (2002). The current structure of

that industry is in part a product of the 1982 consent decree

that settled the United States’ antitrust suit against AT&T.

United States v. AT&T, 552 F. Supp. 131 (D. D. C. 1982), aff d,

460 U.S. 1001 (1983). That decree separated AT& T's long-

distance and equipment units from the units that provided

local telephone service, and barred the latter from providing

long-distance telephone service except in limited circum-

stances. See Verizon, 535 U.S. at 475.

Since then, the incumbent local exchange carriers

(ILECs), such as the Bell Companies that inherited AT& T's

local telephone franchises, have remained dominant in the

provision of local telephone service. The 1996 Act seeks to

introduce competition into local exchange and related mar-

kets by requiring ILECs to assist potential rivals by “shar-

[ing] their own facilities and services on terms to be agreed

upon with new entrants.” Verizon, 535 U.S. at 476. In addi-

tion, the 1996 Act empowered the FCC to “prescribe

methods for state commissions to use in setting rates that

would subject both incumbents and entrants to the risks and

incentives that a competitive market would produce.” bid.

Roughly speaking, new entrants may obtain the use of an

incumbent’s local telephone network in three ways. First,

they may purchase an incumbent’s local telephone service at

a wholesale rate and resell it. 47 U.S.C. 251(c)(4). Second,

they may build their own facilities and “interconnect” them

with the incumbent’s network. 47 U.S.C. 251(c)(2). And

third, they “may choose to lease” some or all of the compo-

nents of the incumbent’s network—known as “network ele-

ments“ which the incumbent has a duty to provide ‘on an

unbundled basis’ at terms that are ‘just, reasonable, and

nondiscriminatory,’” 47 U.S.C. 252(c)(3). See Verizon, 535

U.S. at 491-492; AT&T v. Iowa Utils. Bd., 525 U.S. 366, 371

(1999). The 1996 Act provides that new and incumbent

carriers must negotiate critical terms in good faith. Verizon,

3

535 U.S. at 492-493. If they fail to agree, either may seek

mediation or arbitration by the public utilities commission of

the relevant State. Ibid. In furtherance of the goal of

“jumpstart[ing]” competition, the 1996 Act provides pricing

rules that require incumbents to provide unbundled ele-

ments at rates that will “attract new entrants when it would

be more efficient to lease than to build or resell.” Id. at 539.

The resulting pricing rules may require ILECs to provide

new entrants with access to the local telephone network at

rates that are below the ILEC’s historical cost. Id. at 497-

498. The resulting rates may also generate less revenue for

the ILEC than would selling to retail customers directly.

The 1996 Act includes an antitrust savings clause,

§ 601(b), 110 Stat. 143. It declares that, “except as provided”

in provisions not relevant here, nothing in this Act * * *

shall be construed to modify, impair, or supersede the appli-

cab‘‘ity of any of the antitrust laws.” 47 U.S.C. 152 note.

2. This case arises out of a dispute between AT&T, which

is a competitive local exchange carrier (CLEC), and peti-

tioner Verizon Communications Inc., an ILEC. The dispute

involves petitioner's performance of an agreement with

AT&T for telephone service in the State of New York fol-

lowing negotiation and binding arbitration pursuant to 47

U.S.C. 251 and 252. See Pet. App. 5a, 22a; Order Approving

Interconnection Agreement, Case No. 96-C-0723 (N.Y. Pub.

Serv. Comm’n June 13, 1997) (available in 1997 WL 410707).

1 For example, petitioner asserts that it can earn substantially more

by selling its services at retail than it does by leasing facilities at “un-

bundled network element” rates to competitors. See Pet. Cert. Reply 5

n.5. For present purposes, it is sufficient to observe that the 1996 Act’s

pricing standards are not designed to ensure that ILECs earn the same

revenues selling to competitors as they do by serving retail customers

directly. As one competitive local exchange carrier told the FCC, the Act

shifts ILECs “from a high margin retail base to lower-margin wholesale

business.” Letter from Robert A. Curtis, President, Z-Tel Network

Services, CC Docket No. 01-338, at 7 (Sept. 23, 2002).

4

The agreement specifies the terms under which petitioner is

to provide AT&T with the use of petitioner’s local telephone

network so that AT&T can sell local telephone service in

competition with petitioner. The agreement also specifies

dispute-resolution procedures that are “the exclusive rem-

edy for all disputes between” petitioner and AT&T “arising

out of thle] lalgreement or its breach.” Pet. App. 5a (quoting

1997 WL 410707, at *23). On March 9, 2000, the FCC and

petitioner entered into a consent decree resolving the FCC’s

investigation into petitioner’s potential violations of Section

271 of the 1996 Act. The decree required that petitioner,

among other things, pay $3 million to the United States, and

petitioner agreed to pay $10 million to AT&T and other

CLECs. Pet. App. 5a, 50a.

One day after the FCC issued the consent decree, respon-

dent filed this putative class action lawsuit. Pet. App. 5la.

Respondent is an AT&T customer, id. at 5a, but has no ap-

parent business relationship with petitioner. The complaint

alleged:

[Petitioner] has not afforded CLECs access to the local

loop on a par with its own access. Among other things,

[petitioner] has filled orders of CLEC customers after

fulfilling those for its own local phone service, has failed

to fill in a timely manner, or not at all, a substantial num-

ber of orders for CLEC customers substantially identical

in circumstances to its own local phone service customers

for whom it has filled orders on a timely basis, and has

systematically failed to inform CLECs of the status of

their customers’ orders with [petitioner].

Id. at 6a (quoting J.A. 39 (Am. Compl. J 21)); see J. A. 46-47

(Am. Compl. J 54).

Respondent did not allege in the complaint that petitioner

had failed to fill, or had delayed filling, any order relating to

its own AT&T local telephone service. Respondent instead

alleged that petitioner’s conduct had affected its “ability

* * * to obtain satisfactory Local Phone Service,” and injured

5

petitioner’s competitors “in the provision of” local phone

service. J. A. 47 (Am. Compl. 1 57). Respondent further

alleged that petitioner’s conduct “had no valid business

reason and was intended to exclude competition * * * ‘by

making it difficult for competitors to provide service in the

Local Phone Service market on the level that [petitioner] is

able to provide to its customers in that market.’” Pet. App.

6a-7a (quoting J.A. 46 (Am. Compl. 1 52)). Respondent

asserted a treble damages claim under Section 2 of the

Sherman Act. Id. at 6a.”

The district court dismissed the complaint. Pet. App. 49a-

6la. After holding that respondent had standing under the

Sherman Act, id. at 53a-54a, the court concluded that the

complaint did not state a claim because the only anti-

competitive conduct it identified was petitioner’s “failure

*** to cooperate with competing local carriers” as required

by 47 U.S.C. 251. Id. at 58a. “The affirmative duties im-

posed by the Telecommunications Act,” the court observed,

“are not coterminous with the duty of a monopolist to refrain

from exclusionary practices.” Id. at 54a.

Respondent amended the complaint, adding allegations

that petitioner breached its contracts with CLECs “with the

purpose of acquiring or maintaining monopoly power in the

local phone service market.” Pet. App. 63a. The district

court again dismissed the complaint. Jd. at 64a-68a. The

court noted that, under respondent’s Sherman Act theory,

“when a firm with enough market power” and anticom-

petitive intent “breache[s] the terms of contracts it has with

competitors that assist those competitors,” it “violates Sec-

tion 2 of the Sherman Act.” Id. at 66a. The antitrust laws,

the court observed, do not put monopolists under a general

duty to cooperate with competitors. The district court

2 Respondent also asserted claims under the Communications Act of

1934, 47 U.S.C. 202, and the 1996 Act. The reformulated question pre-

sented does not encompass those claims.

6

therefore held that tne alleged breaches of contract “were

not ‘anticompetitive’ conduct within the meaning of the

antitrust laws.” Id. at 67a.

3. The court of appeals affirmed in part and reversed in

part. Pet. App. la-48a. The court of appeals agreed that re-

spondent had antitrust standing. Id. at 26a-27a. The court

of appeals disagreed, however, with the district court’s

holding that respondent’s complaint is insufficient to “sup-

port an antitrust claim.” Id. at 29a. Instead, the court held

that the complaint “may state a claim under the ‘essential

facilities’ doetrꝭ e,“ under which “a monopolist has a duty to

provide competitors with reasonable access to * * * facilities

under the monopolist’s control and without which one cannot

effectively compete in a given market.” Ibid. Alternatively,

the court concluded that respondent “may have a monopoly

leveraging claim,” which could be established by showing

that “the defendant ‘(1) possessed monopoly power in one

market; (2) used that power to gain a competitive advantage

in another distinct market; and (3) caused injury by

such anticompetitive conduct.’” Id. at 30a.

SUMMARY OF ARGUMENT

I. Telecommunications firms must comply with both the

1996 Telecommunications Act and the Sherman Act. As the

antitrust savings clause in the 1996 Act makes clear, that

Act neither restricts the scope of the antitrust laws by con-

ferring implied immunity, nor expands antitrust liability by

creating new antitrust duties that did not exist before the

1996 Act’s passage.

II. A. Although the court of appeals in form acknowl-

edged the distinction between the 1996 Act and the Sherman

Act, in substance it conflated the two. To “jump-start” com-

petition, the 1996 Act requires incumbent local exchange

carriers to “share” their facilities with new entrants, offering

them access equivalent to the incumbent’s, at regulated

7

rates. But conduct that violates the obligations imposed by

the 1996 Act does not ipso facto violate the antitrust laws.

To the contrary, unilateral conduct can violate Section 2 of

the Sherman Act—it can constitute monopolization or at-

tempted monopolization—only if it is exclusionary or preda-

tory. In the context of an alleged refusal to assist a rival,

conduct is exclusionary only if it would not make business or

economic sense apart from its tendency to reduce or elimi-

nate competition. That demanding standard is necessary to

ensure that the Sherman Act promotes competition. A more

generalized duty would rarely enhance consumer welfare

and would threaten to impair the competition the antitrust

laws are designed to promote.

B. The court of appeals erred in displacing the require-

ment of exclusionary conduct with the so-called essential fa-

cilities doctrine. That doctrine does not establish an inde-

pendent antitrust tort; it describes certain types of mo-

nopolization and attempted monopolization cases. Essential

facilities cases, like all other Section 2 cases, require proof of

exclusionary conduct.

C. The court of appeals similarly erred in failing to re-

quire exclusionary conduct in connection with so-called “mo-

nopoly leveraging” claims. The court of appeals’ leveraging

theory would effectively create a new category of antitrust

liability for monopolists that gain a competitive advantage

—such as that which results from economies of scope or

scale—unless they “share” that advantage with competitors.

The Sherman Act prohibits exclusionary conduct that per-

petuates or threatens to create monopoly; it does not pro-

hibit failure to share monopoly power.

D. The complaint in this case fails to allege exclusionary

conduct and thus fails to state a claim. The complaint does

not allege circumstances suggesting that petitioner’s failure

to assist rivals by providing them with access to its network,

on the terms and at the rates required by the 1996 Act,

would not make business sense apart from the effect on

8

competition, the pertinent standard here. For example, it

nowhere asserts that, by refusing to sell to competitors as a

wholesaler at regulated rates, instead of serving customers

itself as a retailer, petitioner undertook a sacrifice of short-

term profits that would make sense only if it had the effect of

impairing competition. Nor does the complaint address the

cost of providing competitors with wholesale access as

required by the Act. Contrast Aspen Skiing Co. v. Aspen

Highlands Skiing Corp., 472 U.S. 585, 608, 610-611 (1985)

(conduct that imposed a “sacrifice” of “short-run benefits”

and made sense only because it reduelſed] competition * * *

over the long run”); 3A P. Areeda & H. Hovenkamp, Anti-

trust Law 4 773, at 211 (2d ed. 2002) (“{N]o firm has a

general duty to injure itself in order to benefit a rival.”).

Instead, the complaint rests on the assumption that any

conduct that violates the 1996 Act necessarily violates the

antitrust laws. Because that assumption is incorrect, and

because the complaint fails to allege a sufficient basis for

finding the conduct exclusionary, the court of appeals erred

in sustaining it.

ARGUMENT a

THE 1996 TELECOMMUNICATIONS ACT NEITHER

MODIFIES THE SHERMAN ACT NOR ELIMINATES

THE REQUIREMENT THAT PLAINTIFFS SHOW EX-

CLUSIONARY CONDUCT

A straightforward reading of the Telecommunications Act

of 1996 and the Sherman Act makes clear that firms in the

telecommunications industry must conform their conduct to

the requirements of both of those Acts, for both Acts apply.

The court of appeals correctly so held. The Acts, however,

impose distinct requirements, such that a violation of one is

not ipso facto a violation of the other. While the court of ap-

peals recognized that in form, in substance it applied mis-

taken antitrust standards that effectively conflate the duties

imposed by the two Acts.

9

The district court dismissed the complaint in this case be-

cause respondent failed to allege “exclusionary” practices.

The court of appeals did not disagree that the complaint

failed to plead such practices. The court of appeals reversed

nonetheless because, in its view, Sherman Act liability could

be sustained under two alternative theories—“essential

facilities” and “monopoly leveraging”—without showing ex-

clusionary conduct. Those theories, however, do not provide

stand-alone bases for liability under Section 2, and they do

not permit liability absent proof of exclusionary conduct.

The Sherman Act prohibits anticompetitive restraints of

trade. It is not a license for federal courts to create codes of

desirable business conduct under which competitors must

assist each other for the public good.

I. The 1996 Act Neither Bars Nor Supports Claims

Alleging Sherman Act Violations

The 1996 Act and the Sherman Act implement the na-

tional commitment to competitive markets in fundamentally

different ways. The 1996 Act was “intended to eliminate the

monopolies enjoyed by the inheritors of AT&T’s local fran-

chises; [an] objective * * * considered both an end in itself

and an important step toward the Act’s other goals of

boosting competition in broader markets and revising the

mandate to provide universal telephone service.” Verizon

Communications v. FCC, 535 U.S. 467, 476 (2002). The Act

thus sought to uprootſ]“ local telephone monopolies, id. at

488, and to “reorganize” and “bring competition to local-

exchange markets,” id. at 489, 539, without regard to whe-

ther ILEC monopolies developed and persisted lawfully in

the first instance. To achieve that end, the 1996 Act pro-

vides a detailed blueprint under which ILECs must assist

their rivals to “jumpstart” competition. See id. at 488. It

requires ILECs, for example, to “lease elements of their net-

works” to their competitors “at rates that would attract new

entrants when it would be more efficient to lease than to

10

build or resell.” Id. at 539. The resulting “wholesale market

for leasing network elements” and resulting pricing struc-

tures are “brand new.” Id. at 528; pp. 1-3 & note 1, supra.

Section 2 of the Sherman Act, in contrast, proscribes con-

duct that monopolizes, ie, monopolization or attempted mo-

nopolization. It thus does not prohibit or condemn “monop-

oly in the concrete.” Standard Oil Co. v. United States, 221

U.S. 1, 62 (1911)). And it neither expressly mandates the

sharing of an incumbent firm’s facilities nor provides con-

crete pricing and access rules for such sharing. That is

because, unlike the 1996 Act, the Sherman Act does not

impose a generalized duty to assist rivals, much less a

generalized duty to assist them by sharing facilities at rates

that are “attractive” or on terms different from those offered

to non-competitor customers. See Aspen Skiing Co. v.

Aspen Highlands Skiing Corp., 472 U.S. 585, 600-601 (1985);

see also Olympia Equip. Leasing Co. v. Western Union Tel.

Co., 797 F.2d 370, 375-376 (7th Cir. 1986) (Section 2 imposes

on a monopolist “no general duty to help its competitors” and

“no duty to extend a helping hand to new entrants”). Simply

put, the Sherman Act does not require firms—whether or

not monopolists—to sacrifice profits to sell to competitors at

a discount. 3A P. Areeda & H. Hovenkamp, Antitrust Law

{ 773, at 211 (2d ed. 2002) (“[N]o firm has a general duty to

injure itself in order to benefit a rival.”); see id. J 772, at 188

(Aspen Skiing “certainly does not hold that a monopolist

must make its goods, services, or facilities available at a

competitive rather than a monopolistic price.”).

Although the two statutes adopt different strategies to

promote competition, Congress intended them to coexist.

The more specific provisions of the 1996 Act provide detailed

obligations that ILECs must meet. But the 1996 Act does

not by its terms bar application of the Sherman Act to the

same sphere of conduct or provide immunity from Section 2

prosecutions. To the contrary, the 1996 Act includes a

savings clause that recognizes that the antitrust laws impose

—

11

distinet obligations and that neither set of laws displaces the

other. Specifically, the 1996 Act provides (with certain

exceptions not applicable here) that it should not “be con-

strued to modify, impair, or supersede the applicability of

any of the antitrust laws.” 47 U.S.C. 152 note. Recognizing

the import of that language, the decision below correctly

held that the 1996 Act does not immunize conduct from

antitrust scrutiny. See Pet. App. 32a. The other courts of

appeals have uniformly reached the same conclusion. See

Goldwasser v. Ameritech Corp, 222 F.3d 390, 401 (7th Cir.

2000) (suggestion that the 1996 Act confers “implied immu-

nity on behavior that would otherwise violate the antitrust

law would be troublesome at best given the antitrust

savings clause in the statute”); Covad Communications Co.

v. BellSouth Corp., 299 F.3d 1272, 1280-1281 (11th Cir. 2002),

petition for cert. pending, No. 02-1423 (filed Mar. 20, 2003);

MetroNet Servs. Corp. v. US West Communications, 325

F.3d 1086, 1099-1101 (9th Cir. 2003); Cavalier Tel. Co. v.

Verizon Va., Inc., No. 02-1337, 2003 WL 21153305, at *10

(4th Cir. May 20, 2003).

Conversely, the 1996 Act does not expand the scope of the

antitrust laws to outlaw conduct that, but for the 1996 Act,

would not violate the antitrust laws. Such an expansion of

Sherman Act duties would “modify * * * the applicability of

* * * the antitrust laws” in contravention of 47 U.S.C. 152

note. Violations of the duties imposed by the 1996 Act are

just that—violations of the 1996 Act, subject to the sanctions

and penalties imposed by that Act. They do not automa-

tically amount to treble-damages antitrust claims. The

courts of appeals are again in accord. Pet. App. 29a; Covad,

299 F.3d at 1283 (“[W]e agree with Goldwasser that merely

pleading violations of the 1996 Act alone will not suffice to

plead Sherman Act violations.”); Goldwasser, 222 F.3d at 400

(It is “both illogical and undesirable to equate a failure to

comply with the 1996 Act with a failure to comply with the

12

antitrust laws.”); Cavalier Tel. Co., 2003 WL 21153305, at

*11-*12 (similar).

Instead, whether ILEC conduct violates the antitrust

laws must be determined according to antitrust standards.

That is not to say that the presence of regulation is irrele-

vant. Regulation may affect the economic analysis of an in-

dustry, sometimes substantially. Regulation may, for

example, render certain business propositions unattractive

where, but for regulation, they might be attractive, or vice

versa. And regulation might alter likely competitive conse-

quences. As then-Judge Breyer observed in a case concern-

ing a so-called “price squeeze,” price regulation “dramati-

cally alters the calculus of antitrust harms and benefits” by

“significantly diminishl ing] the likelihood of major economic

harm.” Town of Concord v. Boston Edison Co., 915 F.2d 17,

25 (Ist Cir. 1990), cert. denied, 499 U.S. 931 (1991). But reg-

ulation does not necessarily eliminate the risk of monopoli-

zation; nor does it obviate the need for antitrust analysis.

See id. at 28 (limiting holding to the “ordinary” case); South-

ern Pac. Communications Co. v. AT&T, 740 F.2d 980, 1001

(D.C. Cir. 1984), cert. denied, 470 U.S. 1005 (1985).

In all events, the effect of regulation on the incentives for

and the economic consequences of particular conduct is

highly fact and industry specific. 1A Areeda & Hovenkamp,

supra, 1 240d, at 17-18. The mere existence of a regulatory

structure, even the detailed structure established by the

3 In other contexts not implicated here, courts have sometimes found

that the violation of other extrinsic duties—such as prohibitions against

fraud and deception—may be a significant factor when ascertaining

whether the conduct is exclusionary for antitrust purposes. See ABA

Section on Antitrust, Antitrust Law Developments 249 (5th ed. 2002)

(“where conduct contributes to establishing or maintaining monopoly

power, a court will be especially likely to find conduct predatory or

anticompetitive if it is also improper for reasons extrinsic to the antitrust

laws”); Cavalier, 2008 WL 21153305, at *13 (holding does not preclude

consideration of extrinsic duties outside 1996 Act context); see also pp. 14-

15 note 4, infra.

13

1996 Act and the FCC’s implementing regulations, does not

de facto create antitrust immunity for otherwise anticom-

petitive conduct. To the extent petitioners contend other-

wise, see Pet. 8-9, they are mistaken. But equally important,

the 1996 Act does not create an antitrust minefield in vhich

any regulatory violation by a monopolist substitutes ter a

showing of exclusionary conduct.

II. The Court of Appeals Erred In Failing To Require

Exclusionary Conduct Under Section 2 Of The

Sherman Act

Although the court of appeals correctly recognized the

distinction between the 1996 Act and the Sherman Act as a

matter of form, in substance it imported 1996 Act duties into

antitrust law. The Sherman Act may require a dominant

firm to deal with competitors in limited circumstances. But

the court of appeals’ decision unduly expands those circum-

stances by endorsing “essential facilities” and “monopoly

leveraging” theories uncabined by the requirement of

exclusionary or predatory conduct.

A. Exclusionary Conduct Is Essential To Any Section

2 Claim Premised On Unilateral Action

Section 2 of the Sherman Act specifies two offenses that

can be committed by a firm acting unilaterally—monopoliza-

tion and attempted monopolization. See Spectrum Sports,

Inc. v. McQuillan, 506 U.S. 447, 459 (1993) (citing Copper-

weld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-

769 (1984)). As this Court made clear long ago, Section 2

does not prohibit monopoly as such, i.e., “monopoly in the

concrete.” Standard Oil Co. v. United States, 221 U.S. 1, 62

(1911). Rather, the offense of monopolization is broadly de-

fined as (1) the willful acquisition or maintenance of monop-

oly power (2) by the use of anticompetitive conduct “to fore-

close competition, to gain a competitive advantage, or to de-

stroy a competitor.” Eastman Kodak Co. v. Image Techni-

cal Servs., Inc., 504 U.S. 451, 482-483 (1992) (quoting United

14

States v. Griffith, 334 U.S. 100, 107 (1948)); see United States

v. ALCOA, 148 F. 2d 416, 432 (2d Cir. 1945).

1. Monopolization and Attempted Monopolization Require

Exclusionary Conduct

A sine qua non for any claim of monopolization or at-

tempted monopolization is conduct that “reasonably ap-

pear{s] capable of making a significant contribution to

creating or maintaining monopoly power.” 3 Areeda &

Hovenkamp, supra, J 651f, at 83-84; Spectrum Sports, 506

U.S. at 458-459. Even where actions threaten to create or

maintain a monopoly, only “exclusionary” or “predatory”

conduct is proscribed by Section 2. Aspen Skiing, 472 U.S.

at 602. The conduct must “not only (1) tendl] to impair the

opportunities of rivals, but also (2) either * * * not further

competition on the merits or doſ] so in an unnecessarily re-

strictive way.” Id. at 605 n.32.

Applying that standard “can be difficult,” because “the

means of illicit exclusion, like the means of legitimate compe-

tition, are myriad.” United States v. Microsoft Corp., 253

F.3d 34, 58 (D.C. Cir.) (en banc), cert. denied, 534 U.S. 952

(2001). However, it does not entail open-ended “ ‘balancing’

of social gains against competitive harms,” for “a firm is un-

der no obligation to sacrifice its own profits” for the public

weal. 3 Areeda & Hovenkamp, supra, 74 65a, 658f, at 72,

131-132, 135. Instead, the harm to competition must be dis-

proportionate to consumer benefits (in terms of providing a

superior product, for example) and to the economic benefits

to the defendant (aside from benefits that accrue from

diminished competition). See ibid. Under that standard,

this Court has recognized a variety of anticompetitive means

by which defendants may seek or maintain monopolies.‘

For example, the enforcement of a fraudulently obtained patent may

amount to exclusionary conduct under Section 2 if it has the requisite

effect on competition. See Walker Process Equip., Inc. v. Food Mach. &

Chem. Corp., 382 U.S. 172, 177-178 (1966). Likewise, sham litigation or

15

The requirement of exclusionary conduct emanates from

the Sherman Act itself. Imposing liability in the absence of

exclusionary conduct risks discouraging, even punishing, the

very competition the antitrust laws are intended to en-

courage. This Court has noted the difficulty of “distin-

guishling] robust competition from conduct with long-run

anti-competitive effects.” Copperweld, 467 U.S. at 767-768.

Indeed, the conduct of a vigorous competitor may “appear{]

to ‘restrain trade’ unreasonably” even where that conduct “is

precisely the sort of competition that promotes the consumer

interests that the Sherman Act aims to foster.” Id. at 767.

Thus, As lubjeeting a single firm’s every action to judicial

scrutiny for reasonableness would threaten to discourage the

competitive enthusiasm that the antitrust laws seek to

promote.” Id. at 775. As Judge Hand wrote, It he successful

competitor, having been urged to compete, must not be

turned upon when he wins.” ALCOA, 148 F.2d at 430.°

2. In Cases Asserting A Duty To Assist Rivals, Conduct

Is Exclusionary Only If It Would Not Make Economic

Sense But For The Tendency To Impair Competition

Where, as here, the plaintiff asserts that the defendant

was under a duty to assist a rival, the inquiry into whether

conduct is “exclusionary” or “predatory” requires a sharper

focus. In that context, conduct is not exclusionary or preda-

tory unless it would make no economic sense for the defen-

dant but for its tendency to eliminate or lessen competition.

bad-faith contact with administrative agencies may create a substantial

anticompetitive impact in violation of Section 2. See, g., California

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972). And the

private standard-setting process may afford opportunities for oppor-

tunistic behavior that may harm competition. See, g., Allied Tube &

Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).

5 Different considerations apply to concerted action, which is

“inherently * * * fraught with anticompetitive risk.” Copperweld, 467

U.S. at 768-769. As a result, concerted action is evaluated for its

reasonableness—and is, in some instances, summarily condemned as

illegal per se.

16

This Court has emphasized that sort of analysis with re-

spect to predatory pricing. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 588-589 (1986); ABA

Section on Antitrust, Antitrust Law Developments 247 (5th

ed. 2002) (“courts have held conduct to be predatory where it

would be economically irrational for the monopolist but for

the conduct’s adverse impact on competition”). In that

context, this Court has expressed concern that conduct per-

fectly consistent with robust competition—“cutting prices in

order to increase business”—should not lightly give rise to

antitrust liability, because doing so may “chill the very

conduct that antitrust laws are designed to protect.”

Matsushita, 475 U.S. at 594. Price cuts, moreover, rarely

harm consumers, because “predatory pricing schemes are

rarely tried, and even more rarely successful.” Id. at 589.

Likewise, in the context of asserted duties to assist rivals,

this Court and the courts of appeals have recognized that

conduct is exclusionary where it involves a sacrifice of short-

term profits or goodwill that makes sense only insofar as it

helps the defendant maintain or obtain monopoly power. See

Aspen Skiing, 472 U.S. at 608, 610-611 (conduct that “sacri-

fice[s] short-run benefits,“ such as immediate income and

consumer goodwill, undertaken because it “reduc{es] compe-

tition * * * over the long run”); General Indus. Corp. v.

Hartz Mountain Corp., 810 F.2d 795, 803 (8th Cir. 1987)

(conduct anticompetitive if “its ‘anticipated benefits were

dependent upon its tendency to discipline or eliminate com-

petition and thereby enhance the firm’s long term ability to

reap the benefits of monopoly power.’”); see also Stearns

Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 523-524 &

n.3 (5th Cir. 1999) (conduct exclusionary if it harms the

monopolist but is justified because it causes rivals more

harm); Advanced Health-Care Servs. v. Radford Cmty.

Hosp., 910 F.2d 139, 148 (4th Cir. 1990) (“making a short-

term sacrifice” that “harm[s] consumers and competition” to

further “exclusive, anti-competitive objectives”). In con-

— —

——— ——

17

trast, a refusal to aid rivals that makes economic or business

sense apart from a tendency to impair competition is not

exclusionary.

That demanding standard, like the one employed in the

predatory pricing context, reflects the infrequent pro-com-

petitive benefits and the frequent anticompetitive risks

posed by a generalized requirement that firms assist rivals.

Consumers are generally “no better off when a monopoly is

shared; ordinarily, price and output are the same as they

were when one monopolist used the input alone.” 3A Areeda

& Hovenkamp, supra, 1 771b, at 171-172. At the same time,

dealings among rivals create a risk of collusion. Id. J 772c4,

at 191-192 (discussing “Collusion risks”); see Aspen Skiing,

472 U.S. at 598 n.22. That alone renders lawsuits premised -

on a failure to cooperate with rivals troublesome.

Even in the absence of collusion, dealings among rivals

can have the unintended consequence of forestalling rather

than promoting competition. A firm that has the right to

utilize an input from an incumbent—or that can claim that

right through litigation—may have a reduced financial incen-

tive to develop the input itself. 3A Areeda & Hovenkamp,

supra, { 771b, at 172 (“(T)he right to share * * * discour-

ages firms from developing their own alternative inputs.”);

Verizon, 535 U.S. at 550 (Breyer, J., concurring and dis-

senting in part) (sharing of facilities is not “consistent with

* * * competition,” although competition may emerge with

respect to elements that are not shared); see id. at 551, 560;

see also L. Sullivan & W. Grimes, The Law of Antitrust § 3.4,

at 112 (2000) (“Compelling a monopolist to grant competitors

access to a facility that the monopolist has alone developed is

problematic” because it “collides with” the “commonplace

propositions” that “not even monopolists need give positive

assistance to competitors” and “that innovation should be

encouraged and rewarded.”). Finally, mandated sharing

could impose substantial administrative burdens for courts.

“Even the simplest kind of compelled sharing * * * means

18

that someone must oversee the terms and conditions of that

sharing.” AT&T v. Iowa Utils. Bd., 525 U.S. 366, 428 (2000)

(Breyer, J., concurring in part and dissenting in part).

Congress and regulatory agencies, of course, may identify

circumstances where it is economically efficient to require

the incumbent to share its facilities under a system of price

and access regulation; or where new entrants should be

permitted to use the monopolist’s facilities while establishing

themselves, and their customer base, before they are ex-

pected to build their own facilities. Indeed, the 1996 Act

rests in part on that kind of industry-specific determination.

See Verizon, 535 U.S. at 510-511 & n.27; Cavalier Tel. Co.,

2003 WL 21153305, at *11 (1996 Act a “distinctly different

approach to jump-start and accelerate competition”), Gold-

wasser, 222 F.3d at 399 (similar). But the identification and

remediation of those situations is best dealt with through

industry-specific legislation and regulation—like the 1996

Act—which can be developed by legislative branches and

administrative agencies with superior factfinding ability,

greater industry expertise, existing capacity for ongoing

oversight and refinement, and the public accountability that

is an important companion to such economic policy choices.

But where, as here, Congress enacts a regulatory structure

that imposes affirmative obligations to assist rivals and

expressly disclaims any intent to “modify * * * the

applicability of any of the antitrust laws,” 47 U.S.C. 152 note,

it is clearly inappropriate for a court automatically to

perceive antitrust consequences from regulatory violations.

Instead, the antitrust laws generally afford all firms—in-

cluding monopolists—great discretion in determining with

whom they will and will not deal. Aspen Skiing, 472 U.S. at

600-603. They also permit firms to charge whatever prices

they can obtain in the marketplace. Berkey Photo, Inc. v.

Eastman Kodak Co., 603 F.2d 263, 274 n.12 (2d Cir. 1979),

cert. denied, 444 U.S. 1093 (1980); Blue Cross & Blue Shield

United v. Marshfield Clinic, 65 F.3d 1406, 1413 (7th Cir.

19

1995) (“the antitrust laws are not a price-control statute or a

public-utility or common-carrier rate-regulation statute”),

cert. denied, 516 U.S. 1184 (1996); Kartell v. Blue Shield of

Mass., Inc., 749 F.2d 922, 927 (Ist Cir. 1984) (Breyer, J.)

(“even a monopolist is free to exploit whatever market

power it may possess” by “charging uncompetitive prices”),

cert. denied, 471 U.S. 1029 (1985).

Nonetheless, a monopolist’s right to refuse cooperation

with rivals is not wholly unqualified. Aspen Skiing, 472 U.S.

at 600-601. If such a refusal involves a sacrifice of profits or

business advantage that makes economic sense only because

it eliminates or lessens competition, it is exclusionary and

potentially unlawful. In Aspen Skiing, for example, this

Court upheld a verdict against the Ski Co., which had termi-

nated its former cooperation with a smaller rival, Highlands,

and refused numerous proposals for resumed cooperation.

In finding sufficient evidence that the Ski Co.’s conduct could

“properly be characterized as exclusionary,” 472 U.S. at 605,

this Court repeatedly stressed that the Ski Co.’s decision to

refuse cooperation required the sacrifice of immediate prof-

its. The Ski Co., for example, refused to sell its lift tickets to

its rival at full price, “forgo[ing] daily ticket sales” and the

goodwill of its own customers, who were inconvenienced by

that choice. Jd. at 608; id. at 593 & n.14 (Ski Co. refused to

sell to its competitor “any lift tickets” of its own, “either at

the tour operator’s discount or at retail”). The Ski Co.

“elected to forgo these short term benefits,” the evidence

showed, “because it was more interested in reducing compe-

tition in the-Aspen market over the !ong run by harming its

smaller competitor.” Id. at 608; see id. at 610 (offers rejected

by Ski Co. “would have entailed no cost to Ski Co. itself,

would have provided it with immediate benefits, and would

have satisfied its potential customers”); id. at 610-611 (Ski

Co. “was willing to sacrifice short-run benefits and consumer

goodwill in exchange for a perceived long-run impact on its

smaller rival”). Moreover, Ski Co. could not satisfactorily

20

explain how its conduct made economic sense apart from the

harm to competition. Id. at 608. The conduct was thus con-

demned because it made no economic sense but for its anti-

competitive consequences.

When, on the other hand, a monopolist’s refusal to deal

(or, as here, breach of an agreement to deal) on particular

terms does make business sense apart from exclusionary

consequences, antitrust law should avoid interfering with

such business choices. At one extreme, a refusal to sell an

input to a rival when it requires the incumbent to forfeit

profits would make obvious business sense. But even in less

extreme circumstances, courts should be hesitant to impose

a duty to assist rivals. The decisions of a seller, even a mo-

nopolist, regarding to whom it will sell, on what terms, and

under what sort of quality and purchaser-satisfaction meas-

ures, generally reflect its own assessment of how to compete

and provide goods most effectively in the marketplace.

There is good reason to be cautious when setting the stan-

dard under which such conduct is condemned as exclusion-

ary, lest consumers be deprived of the benefits of pro-com-

petitive business practices, or potential competition be dis-

placed by cooperation as would-be rivals share inputs. See

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,

509 U.S. 209, 224 (1993); pp. 15-18, supra.

B. The Court of Appeals Improperly Applied The “Essen-

tial Facilities” Doctrine To Dispense With The Exclu-

sionary Conduct Requirement

Departing from that approach, some courts of appeals

have developed an “essential facilities” doctrine divorced

from traditional antitrust requirements, including proof of

exclusionary conduct. As articulated by those courts, the

doctrine requires a monopolist to assist rivals by sharing a

facility if, by refusing to do so, the monopolist can “extend

monopoly power from one stage of production to another”

and the following four elements are found:

— GO . Ey SOE „„

— —-—

21

(1) control of the essential facility by a monopolist; (2) a

competitor’s inability practically or reasonably to dupli-

cate the essential facility; (3) the denial of the use of the

facility to a competitor; and (4) the feasibility of pro-

viding the facility.

MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1132-

1133 (7th Cir.), cert. denied, 464 U.S. 891 (1983). See 3A

Areeda & Hovenkamp, supra, J 771a, at 169-170; see also P.

Areeda, The “Essential Facility” Doctrine: An Epithet in

Need of Limiting Principles, 58 Antitrust L. J. 841 (1989).

This Court has never adopted the essential facilities doc-

trine in a Section 2 case. Jowa Utils. Bd., 525 U.S. at 428

(Breyer, J., concurring in part and dissenting in part). And

the doctrine has been heavily criticized. See, e.g., 3A Areeda

& Hovenkamp, supra, J 771c, at 173 (“the essential facility

doctrine is both harmful and unnecessary and should be

abandoned”). That criticism is well-founded. Requiring a

firm to share its monopoly with its competitors, as the essen-

tial facilities doctrine does, can be inconsistent with the fun-

damental, pro-competitive goals of the antitrust laws. Id.

{ 771b, at 171; see pp. 17-18, supra.

The problem, however, is not so much that the four factors

articulated by the MCI decision are irrelevant; they can be

helpful. See p. 22 note 6, infra. Rather, the difficulty is that

federal courts have sometimes articulated the essential

facilities doctrine and the four factors as if they described a

stand-alone antitrust violation, untethered to traditional

Sherman Act requirements. See 3A Areeda & Hovenkamp,

supra, I 772, at 175 (doctrine not “an independent tool of

analysis but only a label—a label that beguiles some com-

mentators and courts into pronouncing a duty to deal with-

out analyzing the implications”). Section 2, however, pro-

hibits only acts that constitute “monopolization” or “at-

tempts to monopolize.” It does not establish essential facili-

ties violations as an independent antitrust tort. The four fac-

tors identified in MCI and other decisions thus are relevant

22

but neither necessary nor sufficient to establish Section 2

liability.“ As one court has explained, the essential facilities

doctrine is “a label that may aid in the analysis of a monopoly

claim, not a statement of a separate violation of law.” Via-

com Int'l, Inc. v. Time Inc., 785 F. Supp. 371, 376 n.12

(S.D.N.Y. 1992). It relieves plaintiffs “of no burden they

would otherwise bear, and constitutes no substitute for a

showing that the requirements of a cause of action under the

antitrust laws have been met.” Ibid. Consequently, as with

any other monopolization or attempted monopolization claim,

so-called essential facilities claims must include some show-

ing of “exclusionary” or “predatory” conduct. In this con-

text, that means conduct that would not make sense but for

its tendency to reduce or eliminate competition.’

6 The first two factors—that the facility (1) is controlled by a monop-

olist, and (2) cannot be duplicated by those seeking to compete in a related

market may help identify circumstances in which a refusal to deal might

“reasonably appear capable of making a significant contribution to

creating or maintaining monopoly power.” 3 Areeda & Hovenkamp,

supra, J 651f, at 83-84. The fourth requirement in particular—the feas-

ibility of providing the access that was refused—relates to whether the

defendant’s conduct may be viewed as exclusionary, but does not itself

demonstrate it. Cf. Laurel Sand & Gravel, Inc. v. CSX Transp., Inc., 924

F.2d 539, 545 (4th Cir.) (feasibility of providing access must be analyzed in

the context of the monopolist’s normal course of business), cert. denied,

502 U.S. 814 (1991); MCI, 708 F.2d at 1133 (“No legitimate business or

technical reason was shown for AT&T’s denial of the requested inter-

connection”; “MCI was not requesting preferential access”; MCI was not

“asking that AT&T in any way abandon its facilities”); id. at 1144

(allegation that AT&T had sold the requested access “to local customers,

independent phone companies and other{]}” non-competitors “for years”).

7 Otter Tail Power Co. v. United States, 410 U.S. 366 (1973), is not to

the contrary. Otter Tail was not based on an “essential facilities” theory

of liability, and the trial court found that the sole reason for the conduct

there was to prevent erosion of monopoly power. See id. at 378; see also

United States v. Otter Tail Power Co., 331 F. Supp. 54, 61 (D. Minn. 1971)

(“defendant has a monopoly * * * and has consistently refused to deal

with municipalities which desired to establish municipally owned systems

on the alleged justification that to do so would impair its position of dom-

ma

— tay, a asptll

23

For that reason, a monopolist’s refusal to sell his goods or

services below the monopoly price would not ordinarily be

actionable, because that price maximizes profits apart from

its effect on competitors in related markets. See pp. 18-19,

supra. Whether that price is above the price set by regula-

tors or higher than the would-be competitor is willing to pay

is irrelevant. Laurel Sand & Gravel, Inc. v. CSX Transp.,

Inc., 924 F.2d 539, 545 (4th Cir.) (rejecting view that essen-

tial facilities doctrine requires that access be provided to a

monopolist’s competitor on terms that would permit the

competitor to make a profit), cert. denied, 502 U.S. 814

(1991). Indeed, the contrary rule would not merely require

the monopolist to share its facility. It would, in effect, re-

quire the monopolist to share its profits.

In this case, the court of appeals focused on the existence

of a so-called essential facility and lost sight of the need for

exclusionary conduct. It thus treated the essential facilities

doctrine as a free-standing basis for Sherman Act liability,

on a par with monopolization and attempted monopolization,

but without examining the standards applicable to those of-

fenses. In particular, the court of appeals deemed it suffi-

cient that the complaint alleged that the local loop was es-

inance in selling power at retail to towns in its service area”). The

defendant, which was already in the business of wheeling power, not only

refused to deal, but also demanded and enforced anticompetitive

provisions in contracts with potential competitors. 410 U.S. at 378-379.

For that reason and because of the difficulties inherent in deter-

mining the price and other terms a non-exclusionary monopolist would

demand—the circumstance most likely to lead to liability is “a monopoly

supplier's discriminating against a customer because the customer has

decided to compete with it.” Olympia Equip., 797 F.2d at 377 (emphasis

added). The monopolist’s willingness to offer non-competitors particular

terms is evidence that those terms are profitable to it, and that the refusal

to offer the same terms to competitors represents a sacrifice of immediate

profits that would not make sense but for the tendency to impair

competition. Judge Posner has therefore described such discrimination as

the “essential feature of the refusal-to-deal cases.” /bid.

24

sential to competing in the local phone service market; that

recreating the local loop was prohibitively expensive; and

that petitioner denied AT&T, a competitor, “reasonable

access” to the loop. Pet. App. 29a-30a.

The court of appeals contemplated that petitioner might

eventually escape liability if it established either that the

local loop was in fact not essential, or that it actually had

provided “reasonable access.” Pet. App. 30a. But the court

did not address whether the complaint alleged exclusionary

or predatory conduct. Furthermore, it appears to have

assumed that “reasonable access” means access on the terms

provided under the 1996 Telecommunications Act rather

than access on such terms as would make business sense

apart from their effect on competition, such as those offered

to non-competitor customers.’ That inappropriately imports

Telecommunications Act duties and standards into the anti-

trust laws, violating the 1996 Act’s instruction that “nothing

The court of appeals interpreted the essential facilities doctrine to

require that access be provided on “just and reasonable terms” placing

all—apparently including the monopoly supplier of the facility—on an

“equal plane.” Pet. App. 29a. That language, however, is not drawn from

standards relating to antitrust liability but from the remedial require-

ments this Court addressed in United States v. Terminal R.R. Ass'n, 224

U.S. 383, 411 (1912). See Southern Pac. Communications Corp, 740 F 2d

at 1008-1009; United States v. AT&T, 524 F. Supp. 1336, 1352-1353 (D. D. C.

1981). Terminal Railroad, moreover, was not based on an essential

facilities theory of liability. That case concerned whether “unification of

substantially every terminal facility by which the traffic of St. Louis is

served resulted in a combination which is in restraint of trade.” 224 U.S.

at 394. Nor was a denial of access at issue there, since the fact It hat

other companies are permitted to use the facilities of the Terminal Com-

pany upon paying the same charges paid by the proprietary companies

seemed] to be conceded.” Id. at 400. The Court chose to impose a re-

quirement of equal access on reasonable terms as part of a remedial

scheme because it found that dissolving the combination would be

injurious to the public. Id. at 409-411; Associated Press v. United States,

326 U.S. 1, 25 (1945) (Douglas, J., concurring) (Terminal Railroad “held

that as an alternative to dissolution a plan should be submitted which

provided for equality of treatment of all railroads.”).

25

in” it “shall be construed to modify * * * the applicability

of any of the antitrust laws.” 47 U.S.C. 152 note. By

equating the specific regulatory duties of affirmative

assistance imposed by the 1996 Act with conduct required to

avoid Sherman Act liability, the court misconceived the dis-

tinct purpose of the 1996 Act.“ That Act’s requirements

reflect a variety of regulatory objectives. The specific duty

to assist competitors by leasing access to the local loop was

not designed merely to protect competition, but to restruc-

ture an entire industry by, among other things, encouraging

new entry; consequently, the Act in some circumstances

imposes duties to assist rivals on terms that are more

favorable than would be offered by a profit-maximizing

monopolist not engaged in predatory or exclusionary con-

duct. The failure to fulfill those specific 1996 Act duties (or

to dedicate sufficient resources to their fulfillment) may

amount to a regulatory violation without ipso facto violating

the antitrust laws."

C. The Court Of Appeals’ Application Of “Monopoly Lev-

eraging” Is Inconsistent With Section 2 Principles

The court of appeals’ articulation of its second theory of

Section 2 liability—monopoly leveraging—similarly counte-

nances an antitrust violation unsupported by fundamental

antitrust principles. The phrase “monopoly leveraging” is

often employed to describe the use of power in one market to

affect competition in a second, related market. In this case,

1% As we have observed (p. 12 note 3, supra), in other contexts,

violation of extrinsic statutory or legal duties may be significant in

determining whether conduct is exclusionary for antitrust purposes.

Even if the 1996 Act is merely viewed as a legislative remed / to deal

with the competitive challenge posed by a monopolist’s control of the

“essential facility” of the local loop, it does not follow that a regulatory vio-

lation always amounts to an antitrust violation. Indeed, even a violation of

a court order requiring non-discriminatory access to a particular facility,

see p. 24 note 9, supra, would not without more constitute an independent

antitrust violation, even though it might be a basis for contempt.

the court of appeals held that a “monopoly leveraging” viola-

tion is established if a monopolist in one market uses its mo-

nopoly to “gain a competitive advantage” in a second market,

Pet. App. 30a, even if the monopolist does not have “a dan-

gerous probability” of successfully monopolizing the second

market, id. at 31a n.13. That formulation is difficult to recon-

cile with the text of the Sherman Act, which proscribes

monopolization and attempted monopolization, rather than

“misuse” of market power. 3 Areeda & Hovenkamp, supra,

1 652a, at 89. It is also inconsistent with Spectrum Sports,

506 U.S. at 459, which clarifies that Section 2 “makes the

conduct of a single firm unlawful only when it actually

monopolizes or dangerously threatens to do so.“

Moreover, the Second Circuit’s “monopoly leveraging”

formulation suffers from the same defect as its “essential

facilities” holding—it does not require the monopolist’s con-

duct to be “exclusionary” or “predatory” within the meaning

of Section 2 jurisprudence. The court of appeals identified

only one conduct element of the leveraging violation alleged

here, the “use” of monopoly power in one market. Pet. App.

31a. But use of monopoly power is not unlawful; predatory

or exclusionary conduct to create or maintain a monopoly is.

The court of appeals failed to recognize that distinction.

12 The Second Circuit has elsewhere acknowledged that tension. See

Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F 3d 256, 272 (2001)

(Spectrum Sports creates “uncertainty * as to the continued scope of

a monopoly leveraging claim as an independent cause of action.”). The

court of appeals’ use of a “competitive advantage” formulation may not

matter in this case, because the complaint may sufficiently allege a

dangerous probability of successful monopolization.

13 The court of appeals appears to have considered the use of monopoly

power in a monopoly leveraging claim to be “anticompetitive or predatory

conduct” per se, Pet. App. 31a n.13, perhaps as a matter of definition. But

the court never explained why petitioner's or any other monopolist’s use

of monopoly power to gain a competitive advantage in a second market

would always be economically irrational except insofar as it tended to

eliminate or lessen competition. The Second Circuit appears to have

27

The court of appeals’ test for monopoly leveraging would,

like its essential facilities formulation, also condemn non-

exclusionary conduct that neither creates nor sustains mo-

nopoly power. It would, in essence, create a new category of

antitrust liability, applicable to monopolists that gain any

competitive advantage—such as that which results from

economies of scope or scale, or the ability to sustain expen-

sive research and development efforts—in their activities in

competitive markets unless they “share” that advantage

with competitors. Such a theory is incompatible with the

antitrust laws. What offends the Sherman Act is not the use

of monopoly power as such, but exclusionary techniques.

Here, petitioner is alleged to have breached contractual and

regulatory requirements under the 1996 Act that it provide

CLECs with access to its facilities on specified terms. Un-

less that conduct would not make economic sense apart from

a tendency to impair or forestall competition, it is not exclu-

sionary and is not actionable under Section 2.

D. Under The Proper Standards Of Section 2 Liability, Re-

spondent’s Complaint Fails To State A Claim

The Federal Rules require only that a complaint include

“a short and plain statement of the claim showing that the

derived its monopoly leveraging formulation from United States v.

Griffith, 334 U.S. 100, 107 (1948), by way of Berkey Photo, 603 F 2d at 275.

Griffith declared it “unlawful” to use “monopoly power, however lawfully

acquired, * * * to gain a competitive advantage,” and Berkey Photo

stated that “a firm violates § 2 by using its monopoly power in one market

to gain a competitive advantage in another.” But the court of appeals took

the Griffith language out of context. Griffith concerned the alleged use of

monopoly power to extract “exclusive privileges” that “unreasonably

restrained competition”; it was the extraction of privileges that was found

problematic. 334 U.S. at 103-104. Moreover, Berkey Photo nowhere

suggests that a monopolist in one market may not lawfully benefit from

that monopoly when competing in a second market. See 603 F.2d at 276

(noting that “an integrated business” does not “offend the Sherman Act

whenever one of its departments benefits from association with a division

possessing a monopoly in its own market”).

28

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), a state-

ment that need only “give the defendant fair notice of what

the plaintiff’s claim is and the grounds upon which it rests,”

Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). Even when evalu-

ated by the liberal notice pleading standards of the Federal

Rules of Civil Procedure, respondent’s complaint fails to

state a claim for relief under Section 2 of the Sherman Act,

because it fails to allege exclusionary conduct.

The gravamen of respondent’s claim is that, by failing to

fill its competitors’ orders in a timely fashion, petitioner

failed to provide them with full and nondiscriminatory access

to its local telephone network so as to permit them to use

that network in competition with petitioner’s own use of it.

See J. A. 39, 46-47 (Am. Compl. 44 21, 54); p. 4, supra. Re-

spondent’s complaint does not implicate an antitrust duty to

provide such access, because the complaint does not allege

that any refusal to deal was predatory or exclusionary in the

sense relevant here, i.e., that the refusal would not make

business sense unless it tended to eliminate or lessen compe-

tition. Contrast Aspen Skiing, 472 U.S. at 608, 610-611; pp.

15-17, 19-20, supra. The complaint makes no allegations

whatsoever relating to price, profitability, or the costs of

complying with 1996 Act access requirements. It thus no-

where suggests that petitioner’s failure to comply—or failure

to devote sufficient resources to achieve any particular level

of compliance—would make no economic sense apart from

the tendency to impair competition.

That omission is no mere drafting oversight. The district

court dismissed respondent’s initial complaint for failure to

allege facts establishing “any ‘willful acquisition or mainte-

nance’ of monopoly power,” Pet. App. 55a—that is, for failure

to allege exclusionary or anticompetitive conduct. After

seeking and receiving permission to replead, id. at 62a, re-

spondent filed an Amended Complaint, which the district

court also dismissed for failure “to allege any anticompeti-

29

tive conduct.” Id. at 67a. Respondent’s failure to allege ex-

clusionary conduct even after having been put on notice of

the need to allege it is reason enough to conclude that “no

relief could be granted under any set of facts that could be

proved consistent with the allegations.” Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984). Notice pleading may not

require that a complaint “include evidentiary detail. On the

other hand, the price of entry, even to discovery, is for the

plaintiff to allege a factual predicate concrete enough to

warrant further proceedings, which may be costly and bur-

densome.” DM Research, Inc. v. College of American Pa-

thologists, 170 F.3d 53, 55 (Ist Cir. 1999) (Boudin, J.). Re-

spondent’s two successive failures to allege such a factual

predicate show that it cannot pay the price of entry.

The complaint does allege that petitioner “had no valid

business reason” for the challenged conduct, Pet. App. 6a

(quoting J. A. 47 (Am. Compl. 1 57)), and that petitioner “has

engaged in exclusionary and anticompetitive behavior,” J.A.

46 (Am. Compl. 1 52). But those conclusory assertions are

not sufficient allegations that the conduct was exclusion.

ary—in the context of failure to assist a rival, that the

conduct would not make economic sense apart from an effort

to restrain competition. See Papasan v. Allain, 478 U.S.

265, 286 (1986) (court not “bound to accept as true a legal

conclusion couched as a factual allegation”). The court of ap-

peals, moreover, did not refer to either allegation in its anti-

trust analysis. See also Delaware & Hudson Ry. v. Consoli-

dated Rail Corp., 902 F.2d 174, 180 (2d Cir. 1990) (treating

conduct that makes business sense as illegitimate).

Ultimately, the complaint must be dismissed because it

rests on the unstated and incorrect assumption that the anti-

trust laws require a monopolist—either through the “essen-

tial facilities” or “monopoly leveraging” doctrines—to assist

competitors by acting as a wholesaler, offering them access

to the incumbent’s facilities equivalent to that which the in-

cumbent gives itself on terms not offered to non-competitor

30

customers. The 1996 Act, as implemented by FCC regu-

lations upheld by this Court in Verizon v. FCC, supra, does

impose those requirements. See 535 U.S. at 539; Pet. App.

5a (under 47 U.S.C. 251(c), ILECs must provide competitors

access “at least equal in quality to that provided by the local

exchange carrier to itself”). But, as the Seventh Circuit

recognized in Goldwasser, “the duties the 1996 Act imposes”

are not “coterminous with the duty of a monopolist to refrain

from exclusionary practices.” 222 F.3d at 399; see also 47

U.S.C. 152 note (Act does not “modify * * * the appli-

cability of any of the antitrust laws.”). Respondent has not

alleged an exclusionary refusal, apparently because respon-

dent believed that an allegation of a regulatory violation of

the 1996 Telecommunications Act suffices. But not every

violation of the 1996 Act constitutes exclusionary or preda-

tory conduct under the antitrust laws. Nor, contrary to the

decision below, does the allegation that the monopolist owns

an essential facility or employs a facility to leverage market

power substitute for allegations of predatory conduct. To

permit this case to go forward under the Second Circuit’s

erroneous construction of Section 2 would fundamentally

transform the Sherman Act so as to require monopolists to

pull their competitive punches, assist their competitors, con-

vert themselves from retailers into wholesalers, and share

monopoly profits on demand. That is not conduct the Sher-

man Act requires.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

Respectfully submitted.

31

THEODORE B. OLSON

Solicitor General

R. HEWITT PATE

Acting Assistant Attorney

General

PAUL D. CLEMENT

WILLIAM E. Kovacic Deputy Solicitor General

General Counsel JEFFREY A. LAMKEN

Federal Trade Commission Assistant to the Solicitor

General

CATHERINE G. O’SULLIVAN

NANCY C. GARRISON

DAVID SEIDMAN

Attorneys

MAY 2003