Volume 78, Number 5

November 2003

Filling the Gaps: A Principled Approach to Antitrust Enforcement Provides a Necessary Complement to the Telecommunications Act of 1996

Daniel L. Cendan

The Telecommunications Act of 1996 (TCA or 1996 Act) aims to secure lower prices and higher quality services for consumers through vigorous competition among telecommunications carriers. Yet consumers have not enjoyed such results, in part due to carriers’ noncompliance with the 1996 Act. Regrettably, statutory gaps in the rules for remedying violations of the TCA have left consumers largely without recourse. In this Note, Daniel L. Cendan responds to the shortcomings of the TCA by discussing a circuit split that the Supreme Court will resolve this October 2003 term in Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp. Cendan concludes that the Court should affirm Trinko’s holding that a complaint alleging sustained anticompetitive conduct-grounded in behavior that may be distinctly categorized as a violation of the 1996 Act-states a cause of action for exclusionary conduct that violates Section 2 of the Sherman Act. Cendan proposes that the antitrust laws, by shoring up the TCA’s weaknesses, provide a necessary complement to the TCA. Because not every violation of the TCA is a violation of the antitrust laws, a principled approach to antitrust enforcement should permit those complaints pleading a sustained course of anticompetitive conduct-under either a “refusal to deal” or “essential facilities” theory of liability-to survive a motion to dismiss for failure to state an antitrust claim; in contrast, courts should dismiss complaints that allege violations of the antitrust laws for mere isolated conduct that may have harmed competitors. Cendan concludes that whereas the TCA has failed to rigorously enforce consumer rights, the antitrust laws will provide fundamental consumer protection, both in acting as a deterrent to anticompetitive behavior and in providing remedies that are unavailable under the 1996 Act.