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FTC, Verizon at Odds on Effect of SCOTUS Trinko Decision

Publication Date: 
June 16, 2010
Communications Daily

Professor Mark Lemley is quoted on antitrust law and government regulation in relation to the U.S. Supreme Court's Trinko decision:

Recent Supreme Court cases haven't displaced antitrust law in telecom and other highly regulated industries, Verizon Senior Vice President John Thorne said at a hearing Tuesday of the House Judiciary Subcommittee on Courts and Competition Policy. But an FTC official and others urged Congress to use legislation to clarify the meaning of the high court's 2003 Trinko and 2007 Credit Suisse decisions. Democratic and Republican subcommittee members said they were troubled by the rulings, but Republicans seemed hesitant to back legislative action. House Judiciary Committee Chairman John Conyers, D-Mich., told us a legislative fix is unlikely.

The Supreme Court rulings were "offensive" to Subcommittee Chairman Hank Johnson, D-Ga. The cases could be cited by lower courts to dismiss antitrust cases in telecom and other regulated industries, he said. In Trinko, the court reasoned that a consumer didn't have an antitrust claim in alleging a breach of Verizon's network sharing duties under the 1996 Telecom Act, because those rules didn't alter antitrust law. Similarly, in Credit Suisse, the court ruled that the large body of federal securities regulation preempted an antitrust lawsuit against several Wall Street firms.


Congress should consider an amendment to antitrust law to clarify that "there is no implied repeal of the antitrust laws in government regulation," said Mark Lemley, a professor at Stanford School of Law. He recommended a rule preventing courts from interpreting an exemption to antitrust laws unless Congress expressly wrote the exemption into law.