Can Telecommunications Competitors and Consumers Bring Antitrust Claims Based on Incumbents Non-antitrust Duties?
The telecom mess has gotten messier. Thanks to the ingenious efforts of enterprising class action lawyers, a split has emerged among three federal courts of appeals, further complicating the legal swamp created by the 1996 Telecommunications Act. The divergence occurs on the road where that statute intersects with the antitrust laws. And it involves this question: do allegations of inadequate performance of duties imposed by the 1996 Act—specifically duties that compel cooperation with competitors—state an antitrust claim? The three cases at issue each involved suits brought against regional local telephone companies, specifically Ameritech, Bell Atlantic (now Verizon), and BellSouth. These companies, progeny of the old Bell System, are known as Incumbent Local Exchange Carriers, or ILECs. And all three suits involved allegations relating to the ILECs’ obligations to open their respective markets to competition from entrants in the market for local telephony. These new entrants are com
