Mandatory Access Obligations and Standing

I. INTRODUCTION The Supreme Court's January 2004 decision in the Trinko case1 was eagerly awaited by both the antitrust and telecommunications bars. The case focused on the intersection of antitrust law and the Telecommunications Act of 1996.2 Antitrust law is supremely concerned with competition, and the heart of the 1996 Act was its effort to create meaningful competition in local telecommunications.3 The Court had already wrestled twice with the 1996 Act's competition structure in Iowa Utilities4 and Verizon,5 but neither of those had required consideration of antitrust law. Plus, Trinko was a twofer. Not only did it pose the intersection questions just described, but it raised interesting substantive and standing issues. The 1996 Act creates a mandatory dealing regime for local telecommunications companies. Antitrust has its own flavors of mandatory dealing obligations, captured most directly by the Supreme Court in Terminal Railroad,6 Associated Press,7 and Aspen Skiing.8 How the Court would confront those doctrines was likely to be interesting in and of itself, and the standing issues in Trinko might force the Court to revisit its important analysis in Illinois Brick9 of how we should allocate the right to sue between purchasers and indirect purchasers. The lower court case law-in particular, Goldwasser,10 Covad,11 and the Second Circuit opinion in Trinkon-had provided an interesting range of thoughts on these questions and therefore the Supreme Court had a great deal to work with. In this Article, I consider the standing question. Trinko resolves some core substantive questions about mandatory dealing in antitrust. Well, not really, or perhaps, not really; we will be fighting about what Trinko actually said for some time.13 But Trinko certainly addresses quite directly the mandatory dealing issue, at least in the context of the 1996 Act, and we and the lower courts will have to figure out what propositions Trinko stands for. But that is not my mission here. Given its substantive resolution of Trinko, the majority opinion did not need to resolve the standing issue, and we get few freebies from the Court these days.14 Justice Stevens, joined by Justices Souter and Thomas, addressed standing in his opinion concurring in the judgment, concluding that the consumer customer should not be found to have standing to address the scope of the mandatory dealing obligation. That is the question I consider in this Article. Part II briefly describes some of the relevant case law. Part III presents a simple model of the social welfare consequences of an access breach and various approaches to assigning lawsuit rights to entrants and consumers. Part IV matches up the results of the model with how the substantive law of antitrust and the 1996 Act interact together and with standing rules for telecommunications and antitrust. In particular, Part IV matches the model with the antitrust doctrine in Illinois Brick, which bars consumers from suing their remote sellers-typically manufacturers, but here possibly the local exchange carrier required by the 1996 Act to give access to unbundled network elements. II. A QUICK TOUR OF THE CASES To plunge in and set the scene quickly, consider the three key courts of appeals decisions that set up the Supreme Court's consideration of Trinko. In mid-2000, the Seventh Circuit issued its decision in Goldwasser v. Ameritech Corp.15 In Goldwasser, consumer plaintiffs brought a class action complaint against their local phone company.16 The complaint set forth twenty alleged violations of the 1996 Act.17 These were alleged as violations of the Act itself, and without more, as violations of section 2 of the Sherman Act, which bars monopolization and attempted monopolization.18 The plaintiffs sought treble damages for the Sherman Act violations and declaratory and injunctive relief.19 The district court dismissed the complaint under the filed rate doctrine, which, under certain circumstances, prohibits inquiry into rates authorized by a regulator,20 and for lack of antitrust standing. …