prevented the rivals from profitably competing against the defendant in the downstream market and that is precisely the circumstance the trying to address in that case the allegation excuse me the allegation was that the phone company  the retail level for sales to end user consumers and telephone service with rising in both cases the plaintiff was a purchaser from the defendant at the wholesale level and a competitor at the retail level and in both market is not regulated you would agree that that's correct so to the extent that the claim is that there is predatory retail price thing why is tracker apply it if the question was simply can have the defendant's at retail isn't just sort of fight issue right now it's not your honor that was the subject of the court's april two thousand and five order also does the record show us what the market power is of your client at the retail level you can say because there's a table companies out there to exactly your honor the allegation in the complaint and admittedly we are here on a motion to dismiss other court decisions and frankly by common sense but our argument does not depend on the court resolving that market definition issue in our favor for purposes of the motion to dismiss we were willing to assume that the market is imposing such a duty places the courts and the role of central planners requiring them to identify the terms price and quantity in other terms of dealing and finally the courts of the force sharing risk collusion among the there were compelled by statute and if they weren't then there might be room under the aspen skiing type analysis to impose price these liability i should emphasize that contrary to the assumption of the district court obligated to sell unbundled network elements to competing local exchange carriers to see lax  the dealings were compelled by statute but it differed in a more fundamental way from aspen skiing which is that the prize in there was not in the business of selling a wholesale it was compelled to do so only the situation in our case even before d s l was even in existence that the f c c had required that for these types of enhanced services the phone companies have to provide that to competing carriers and then when d s l came out the f c c made it clear that obligation would apply to the cell including to the to the defendants here so we have precisely the same situation that was pre which seems to carry the sort of occasional at least in his mind one step further and that is whether an ordinary price with would be obliterated by drink all but whether one which has exchange carriers local telephone companies to turn over networks to newly created competitive local exchange carriers to create competition at the local level in telephone and telephone refusal to deal claim under section two the supreme court said the answer to that was well the supreme court said that only preexisting or  christ violation and affirming the notion that the fact that one of the prices in the price squeezes regulated is irrelevant i call the court's attention that this court and its most recent and all three elements had to be present so it's not correct in our view the mere fact that this is a compelled dealing automatically disqualifies it and that was not proved in and in other modest difference and we have trouble competing we're just i don't i began completely because our price is higher than the price we have to ultimately sell to customers  trust laws we have to evaluate those claims that the those theories under the standards that train go announced and it's i think it's telling that in counsel's argument he didn't offer any reason why the regulation precludes price quis claims that you could never have a price we claim in a regulated market our point is that under trying to go where the where the dealings with the with the plaintiffs are compelled by statute and relate to a that here we have regulation of pervasively regulated industry there is no regulation at the retail level but the reason for that is unlike in the telephone context that's we've seen us found that that there's no need for regulation of the retail level voluntary park course of the illing the prerequisite to imposing refusal to deal liability and we've explained in our brief the reason why we believe that's true let's take for purposes of argument is true councils point that maybe even in the absence of voluntary course of dealing there might be some basis for imposing liability he pointed to the willingness of the defendant to sell to non competitors but then refusing to sell the competitors at the same terms and really his third point was essentially the same thing the that the service that issue was already in play in the market in other words you're selling it to non rivals but you're refusing to sell that to your competitors in fact here there are two products and he no allegation in this case and of course it would make sense that they would want to buy the retail product this is therefore completely unlike aspen skiing where the defendant the ski company was in the business of selling lift tickets and would sell it to anybody but refused to sell it to its competitor that's not the situation here there are two different products and there is no course of the yelling and there is no sort of play in the market as council referred to with respect to defendants had refused to provide network elements for the purpose of excluding the plainest from the market there was an avowed anti competitive intent and the court held notwithstanding those allegations of anti competitive intent