Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4

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European Approach – 1) no case akin to Alcoa; EC law is meant to regulate, rather than condemn, dominance; 2) EC is receptive to, not sceptical of, governmental regulation; 3) European system never begrudged law to protect opportunity, access and openness for competitors (freedom of trade is conceptualized as a component of “free movement” and overall European integration)
      1. Exclusion vs. “Duty to Deal” – Aspen Skiing to Trinko

  • Terminal Railroad Case (1912) – Quintessential Essential Facility Case

  • Essential Facility Doctrine – if a group of competitors act together to create a facility that gives them a significant competitive advantage over excluded competitors, those competitors must give access to the excluded competitors on reasonable terms

  • Access must be essential for competitors to compete  addresses market failure (exclusion raises competitors’ cost) that results from monopolization

  • NOTE: few cases fall w/in doctrine; courts d/n want to determine reasonable rates/terms

  • Otter Tail Power v. U.S. (1973)

  • Δ had duty to provide power at wholesale prices; attempt to monopolize through use of monopoly power to destroy potential and actual competition

  • Antitrust law can be applied in regulatory environment

  • NOTE: see Trinko for whether antitrust laws should be applied where there is a competing regulatory framework; in this case, the two could be followed simultaneously

  • Official Airline Guides v. FTC (1980)

  • NOTE: assumption of a conspiracy w/major airlines is unproven

  • Essential facility is a weak argument b/c Δ is engaged in a different line of commerce from that of air carriers – commuter airline industry (market definition)

  • Donnelly has no incentive to harm competition in the airline industry

  • Refusal to Deal – absent perverse incentives (no intent to restrain competition or to enhance or extend his monopoly and no coercive acts) retains the right to refuse to deal w/others
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