Trinko talk
During the AALS session last Friday with Yoo, Shelanski, Weiser, Lemley, Speta, and me, there was a sharp question about Trinko:
What's left after Trinko of antitrust liability for interconnection or nondiscrimination problems caused by carriers?
The answer seemed to depend on who was speaking. If you are against network neutrality, you want to assure everyone that if there are problems in the future they'll be resolved by antitrust law. So you read Trinko narrowly to say that it only removes antitrust liability in areas in which the FCC is already active — and you say that it's better for the FCC to stay out of creating network neutrality rules.
If you're neutral, but suspicious of what the carriers might do, you point out that Trinko has some very broad language in it:
One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny.
Translated: In Trinko, Justice Scalia broadly dismissed the idea that competitors to an incumbent phone company could make antitrust claims against that company for providing deficient interconnection services. Even though there's no other way for the competitor to sell access and the incumbent has a lock on the market, the fact that the FCC has a regulatory structure that deals with anticompetitive behavior means that the incumbents are shielded from antitrust scrutiny for run-of-the-mill refusals to deal. You'd have to show real anticompetitive conduct — and reluctance to share facilities could stem from any number of justifications.
So interpreting Trinko is a battleground for this entire discussion. Go ahead — take your best shot and interpret away.
Notice how important the Areeda treatise is to the Supreme Court. It's cited in almost Biblical fashion: “Thus, it is said that 'essential facility claims should . . . be denied where a state or federal agency has effective power to compel sharing..” (citing Areeda). It is said? Very passively powerful. As if the Truth was derived most effectively from secondary sources.
In copyright law, the same thing happens with the Nimmer treatise. Very powerful stuff. Ann Bartow has a nice article about the power of the Nimmer treatise here. This is yet another parallel moment for the Romantic Network Builder, who, like the Romantic Author of copyright fame has some juicy treatise language backing him up.
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