Withdrawal of assistance is not a violation – no duty to help competitors enter the market plus; there may be liability under theories of tort or contract, but not antitrust law!
Distinguishes Aspen Skiing – π has alternative means to acquiring the means to compete effectively Monopolist may be guilty of monopolization if it refuses to cooperate w/a competitor in circumstances where some cooperation is indispensable to effective competition
Antitrust laws protect competition (consumers), not competitors! U.S. courts are most likely to err on the side of nonintervention rather than undergo complicated analysis
Effect of Regulatory Scheme:
If the regulatory scheme and the antitrust laws can be applied concurrently and w/o conflict, then a violation of the antitrust laws should stand; however, if the two conflict, then the regulatory scheme, especially if enacted post Sherman Act, should be presumed to trump the antitrust laws
Scalia on Monopoly: Mere possession of monopoly power and the concomitant charging of monopoly prices in not unlawful it is an important element of the free market system (induces new entry, innovation and economic growth)
Possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct
Scalia on Essential Facilities Doctrine: Court has never recognized or repudiated the doctrine;
indispensable requirement for invoking the doctrine is the unavailability of access to the “essential facility”; where access exists, the doctrine serves no purpose
This statement would wipe out many past cases b/c they were predicated on the requirement that Δ d/n provide sufficient access rather than any access!
Regulatory scheme is an element to an essential facility inquiry
Scalia on Duty to Deal: feared that such a rule would induce competitors to form cartels, whether price-fixing or non-price-fixing; a regulatory scheme may lessen this impact, but there needs to be a general rule in place to function in the absence of a regulatory scheme
§2 d/n obligate competitors to take on affirmative duties to assist each other just b/c the possibility exists that there are more optimal means of doing business that will yield greater social gains (lower prices)
§2 is not concerned w/impact on consumers (monopoly prices) unless that conduct is on the route to monopolization
Terminal Railway – is it still good law? – courts today d/n use language of fairness and equality; d/n want litigation to be a deterrent to efficient policies
Whats left of Aspen Skiing? – excluding price and product predation (below) – if the acts are seriously exclusionary, which will likely raise rivals costs, and there is evidence that they will tend to increase monopoly power, and there is no pro-competitive justification, then there is a prima facie case and burden is shifted to Δ