By: Jonathan Rubin
The Ninth Circuit’s majority opinion in Pacific Bell Telephone Co. v. linkLine Communications, Inc.1 is a thoughtful and not at all unreasonable approach to the application of the antitrust laws to telecommunications. Should the U.S. Supreme Court grant certiorari review, the plaintiffs should be permitted to attempt to prove their Sherman Act Section 2 case based on facts “that involve only unregulated behavior at the retail level,” as the U.S. Court of Appeals for the Ninth Circuit suggested.2 On the other hand, should the Supreme Court accept review of linkLine in order to hold that Trinko bars a plaintiff from pursuing a Section 2 claim even for unregulated conduct in an unregulated retail market the result would not only be contrary to the reasoning in Trinko itself, but also alien to the traditions of antitrust law and inimical to the nation’s pro-competitive aspirations for the telecommunications industry.
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