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MCI Communications Corp. v. American Telephone and Telegraph Co.

decided: January 12, 1983; *fn* As Amended, April 18, 1983.

MCI COMMUNICATIONS CORPORATION AND MCI TELECOMMUNICATIONS CORPORATION, PLAINTIFFS-APPELLEES,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74-C-633 -- John F. Grady, Judge.

Wood and Cudahy, Circuit Judges, and Fairchild, Senior Circuit Judge. Wood, Circuit Judge, concurring in part and dissenting in part.

Author: Cudahy

CUDAHY, Circuit Judge.

In this extraordinary antitrust case,*fn1 defendant American Telephone and Telegraph Company (" AT&T") appeals from a judgment in the amount of $1.8 billion, entered on a jury verdict, in a treble damage suit brought by plaintiffs MCI Communications Corporation and MCI Telecommunications Corporation (collectively "MCI") under section 4 of the Clayton Act, 15 U.S.C. § 15 (1976).*fn2

I. FACTS

MCI's original complaint, filed March 6, 1974, contained four separate counts: monopolization, attempt to monopolize, and conspiracy to monopolize -- all under section 2 of the Sherman Act*fn3 -- and conspiracy in restraint of trade -- under section 1 of the Sherman Act. MCI alleged that AT&T had committed twenty-two types of misconduct, classifiable into several categories including predatory pricing, denial of interconnections, negotiation in bad faith and unlawful tying. MCI claimed at trial, on the basis of a lost profits study originally prepared in part for financing purposes, that it had suffered damages of approximately $900 million as a result of AT&T's allegedly unlawful actions.*fn4

The case was tried to a jury between February 6 and June 13, 1980. After completion of MCI's case in chief, the district court directed a verdict in favor of AT&T on seven of the twenty-two alleged acts of misconduct.*fn5 The remaining fifteen charges -- all based on section 2 of the Sherman Act -- were submitted to the jury. A special verdict form required the jury to make a separate finding of liability as to each of the fifteen charges, but permitted the jury to award damages in a single lump sum, without apportioning MCI's claimed financial losses among AT&T's various lawful and unlawful acts. The jury found in favor of MCI on ten of the fifteen charges submitted, and awarded damages of $600 million -- a sum equal to two thirds the total damage figure claimed in MCI's aggregated lost profits study.*fn6 The district court trebled this damage award, as required by section 4 of the Clayton Act, resulting in a judgment of $1.8 billion, exclusive of costs and attorneys' fees.

AT&T filed motions for judgment notwithstanding the verdict or, in the alternative, for a new trial on June 23, 1980. These motions were denied without opinion on July 29, 1980. On August 25, 1980, AT&T filed its notice of appeal. On September 8, 1980, MCI filed a notice of cross-appeal.*fn7 In this opinion, we reject challenges to certain jury findings upon which AT&T's liability was based, sustain other challenges, and remand for a new trial on the issue of damages.

A. Background and Initial Entry of MCI

Prior to 1969, the telecommunications industry was regulated as a lawful monopoly. Local exchange service was and still is provided exclusively by one of the twenty-three Bell System operating companies or by one of some 1600 independent telephone companies, depending upon the geographical area involved.*fn8 Long distance service was provided by the Long Lines Department of AT&T in partnership with these operating companies.*fn9 The network of long distance transmission facilities was owned in substantial part by Long Lines; however, the interexchange facilities of the local telephone companies, including both transmission and switching facilities, were used in conjunction with Long Lines facilities whenever efficiency required. The local exchange facilities and switching machines belonging to the local companies were also used at each end of a regular long distance call.

This same nationwide network was used as well by AT&T to provide other intercity telephone services, including point-to-point private lines, foreign exchange lines ("FX"), and common control switching arrangements ("CCSA"). Point-to-point private lines (also called tie lines) are connections between two locations that do not require the use of local switching machines because the lines are available to the customer on a continuing and exclusive basis. FX and CCSA, although classified for tariff purposes as private line services, do require interconnection with local switching machines.*fn10

In 1963, Microwave Communications, Inc., the predecessor corporation to MCI,*fn11 requested permission from the Federal Communications Commission ("FCC") to construct and operate a long distance telephone system between Chicago and St. Louis. The proposed system consisted of a terminal in each city and microwave radio relay towers connecting the terminals. Through this system, MCI intended to provide long distance, private line telephone service to business and industrial subscribers whose needs justified the exclusive or semi-exclusive use of a long distance telephone line. MCI also sought interconnections from its terminals to ordinary local telephone facilities, principally telephone wires running in conduits beneath the street. These interconnections were essential to MCI's ability to do business, since they provided the telephone or computer linkage between MCI's terminals and its individual customers in each city.

In 1969, after lengthy administrative proceedings in which AT&T and the other general service carriers opposed MCI's application, the FCC approved MCI's proposal. Microwave Communications, Inc., 18 F.C.C.2d 953, 966 (1969); 21 F.C.C.2d 190 (1970).*fn12 The FCC's decision specifically authorized MCI to provide only point-to-point private line service not requiring connection to the nationwide switched network -- that is, tie lines that would connect two or more locations without the use of switching machines. 18 F.C.C.2d at 953-54. The FCC also retained jurisdiction to order appropriate local interconnections.

The MCI decision resulted in a deluge of new applications to the FCC for authority to construct and operate facilities for specialized common carrier services. MCI filed applications for authority to provide specialized services among more than 100 cities. Other companies filed similar applications, creating a situation in which, in many instances, more than one carrier was seeking to provide specialized services over the same route. To deal with this situation, the FCC instituted a broad rulemaking inquiry designed to permit consideration in one proceeding of the policy questions raised by these numerous applications. Specialized Common Carriers, 24 F.C.C.2d 318 (1970) (Notice of Inquiry).

In June 1971, the FCC handed down its Specialized Common Carriers decision, approving in principle the entry of specialized carriers into the long distance telecommunications field, and declaring as a matter of policy that there should be open competition in the specialized services to which the decision applied. 29 F.C.C.2d 870 (1970). Because AT&T, reversing its earlier position, agreed to negotiate with MCI and other new entrants for local interconnections, the FCC elected to defer consideration of MCI's claim that AT&T was misusing its power over local telephone service to gain a competitive advantage over potential specialized competitors.

The FCC's Specialized Common Carriers decision was hardly a model of clarity.*fn13 The decision did not define the specialized services to which it referred, nor did it define the corresponding obligations that the FCC expected the general carriers (primarily AT&T) to assume in order to assist the new carriers. AT&T contended, both at the time of the FCC decision and throughout the pendency of this lawsuit, that the Specialized Common Carriers decision authorized only point-to-point private line services not requiring switched network connections, and that the obligations of the Bell System extended only to providing local distribution facilities for these point-to-point private line services. MCI, by contrast, has consistently taken the position that the Specialized Common Carriers decision authorized it to provide FX and CCSA type services, as well as point-to-point private lines, and that AT&T had a corresponding obligation to provide it with the switched network connections required for these services. MCI also contended, both before and after the Specialized Common Carriers decision, that AT&T was obligated to provide it with local distribution facilities at the same rate at which AT&T provided such facilities to Western Union, under a longstanding contract between those two carriers. AT&T disagreed, claiming that the contract then in effect with Western Union did not reflect AT&T's current costs, and that the price charged to MCI for local distribution facilities should be set so as to recover AT&T's costs on a current basis.

In September 1971, AT&T entered into interim contracts with MCI defining the kinds of interconnections that AT&T would provide for MCI's initial Chicago-St. Louis route and establishing the price for those interconnections. These contracts did not permit switched network connections for FX or CCSA type services, nor was the price set by the contracts for local distribution facilities comparable to that charged to Western Union.

During this same time period, the original MCI investors joined forces with William McGowan, an experienced business executive and engineer, to form a venture that envisioned the eventual construction and operation of a nationwide long distance telephone system. After scrutiny of the market it believed had been opened by the Specialized Common Carriers decision, MCI created a plan contemplating sales of 74,000 circuits (leased telephone lines) having an average length of 500 miles per circuit, or approximately 37 million circuit miles*fn14 by the end of 1975. According to this plan, MCI expected its revenues to average $1.00 per circuit mile excluding AT&T's local connection charges, which MCI intended to pass on to its customers. Projected annual revenues for 1975 were approximately $350 million. Armed with these projections, MCI proceeded to raise $110 million by June 1972, making it one of the largest start-up ventures in the history of Wall Street. The funds were raised after review and analysis by leading lenders and large equipment suppliers who were either lending the funds or underwriting or guaranteeing the financing.

MCI commenced operations over its Chicago-St. Louis route on January 1, 1972. In the fall of 1972, MCI began construction of the first segment of its nationwide system, extending east and south from the original Chicago-St. Louis route. MCI initially expected to complete the first portion of its national network and commence customer service over major parts of the system by late summer 1973. Expansion to a second and a third group of smaller cities was to follow over the next three years. MCI planned to fund these capital expenditures from its initial $110 million capitalization, from substantial additional anticipated financing, and from operating revenues.

B. The Interconnection Disputes

During late 1972, while construction was progressing, MCI entered into negotiations with AT&T over the provision by AT&T of interconnections and local distribution facilities on the expanded MCI system. Because MCI had previously experienced difficulty obtaining satisfactory interconnections for its Chicago-St. Louis segment, MCI hired an experienced lawyer-negotiator to secure a national interconnection agreement with AT&T that would permit MCI to serve the entire market it believed the FCC had opened. These negotiations began in September 1972, and continued with little progress for the next nine months.

During this same period, MCI appealed to the FCC for help in breaking down what it viewed as AT&T's unreasonable negotiating stance. Through a series of informal complaints and conferences with FCC staff, MCI charged that AT&T was treating it unfairly, on the question of interconnections, in at least three respects:

(1) MCI claimed that AT&T was unlawfully denying it interconnections to the switched network for FX and CCSA services and for point-to-point service to customers located outside a local distribution area,*fn15 including multipoint service;*fn16

(2) MCI claimed that it was being charged excessive and discriminatory prices for the local distribution facilities provided by the Bell System; and

(3) MCI claimed that it was being harassed by Bell System employees in the provision of local distribution facilities through delays, improper installation, improper maintenance and other similar practices.

AT&T denied each of these charges. Both in its direct dealings with MCI and in its responses to FCC staff members, AT&T adhered to the position that the Specialized Common Carriers decision authorized only private line service not requiring switched network connections. AT&T also contended that it was providing MCI with all the interconnections to which MCI was entitled and that the prices it was charging for those interconnections were not excessive or unfair.

In August 1973, with negotiations still pending, and without informing MCI, AT&T decided to file with forty-nine of the state utility commissions interconnection tariffs that would be equally applicable to all carriers -- including MCI and Western Union. By filing interconnection tariffs with the state commissions rather than with the FCC, AT&T made it more difficult for MCI to oppose the tariffs, since, in the words of one AT&T official, the interconnection "controversy would spread to 49 jurisdictions." PX 2148 at 2031. Even after making this unilateral tariff decision, AT&T continued to "negotiate" with MCI. After MCI accidentally learned of the state tariff plan, however, AT&T formally broke off all contract negotiations.

In early October 1973, several top MCI officials met with Bernard Strassburg, Chief of the FCC Common Carrier Bureau, to discuss a plan designed to resolve the interconnection controversies between MCI and AT&T. Pursuant to this plan, FCC Chairman Burch, on October 4, 1973, issued a letter on behalf of the Commission, rejecting AT&T's resort to state regulatory agencies as unlawful and asserting exclusive FCC jurisdiction over the interconnection dispute. Shortly thereafter, MCI wrote to Mr. Strassburg, inquiring as to the nature and scope of the services that MCI was authorized to provide and for which AT&T was obliged to supply interconnections under the Specialized Common Carriers decision. Mr. Strassburg replied by letter dated October 19, 1973, that these services included FX and CCSA, as well as services outside local distribution areas and multipoint services. On November 2, 1973, MCI filed a complaint in federal district court under section 406 of the Communications Act asking that AT&T be ordered to provide interconnections for these services.

On December 31, 1973, the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction ordering AT&T to provide all of the interconnections sought by MCI, on the theory that such interconnections were contemplated and required by the FCC's Specialized Common Carriers decision. MCI Communications Corp. v. AT&T, 369 F. Supp. 1004 (E.D. Pa. 1973). AT&T provided the required interconnections, but immediately appealed the district court's injunction. Meanwhile, the FCC, on December 13, 1973, issued its own order requiring AT&T to show cause why it should not be held to have violated the Specialized Common Carriers decision by refusing to provide the interconnections requested by MCI.

On April 15, 1974, the Third Circuit reversed the preliminary injunction issued against AT&T. MCI Communications Corp. v. AT&T, 496 F.2d 214 (3d Cir. 1974). On April 16, 1974, despite assurances that the FCC's "show cause" decision was expected "any day now," and despite FCC warnings that disconnection of MCI's customers would violate the Communications Act, AT&T ordered its local operating companies to disconnect MCI's customers on twenty-four hours notice. MCI alleged that the resulting disconnections caused turmoil among its customers and seriously damaged its reputation for reliable service. On April 23, 1974 -- eight days after the Third Circuit had vacated the injunction obtained by MCI -- the FCC issued a decision ordering AT&T to provide the disputed interconnections.*fn17 Bell System Tariff Offerings of Local Distribution Facilities for Use by Other Common Carriers, 46 F.C.C.2d 413, aff'd sub nom. Bell Telephone Co. v. FCC, 503 F.2d 1250 (3d Cir. 1974), cert. denied, 422 U.S. 1026, 95 S. Ct. 2620, 45 L. Ed. 2d 684 (1975). The FCC held that it had intended to include both FX and CCSA services within the terms "specialized" or "private line" services as those terms were used in the Specialized Common Carriers decision. 46 F.C.C.2d at 425-27. AT&T provided the requested interconnections within ten days of the FCC's order.

C. The Execunet Decision

In October 1974, MCI filed a tariff with the FCC for what the tariff referred to as metered use private line services, principally a service called "Execunet." Although the FCC did not immediately perceive it as such, this tariff was apparently designed to permit MCI to provide ordinary switched long distance service to users in any city to which its microwave system extended. See MCI Telecommunications Corp., 60 F.C.C.2d 25, 40-43 (1976) (the "Execunet decision"). When the FCC discovered the nature and purpose of the new tariff, it declared the tariff unlawful and ordered MCI to discontinue providing ordinary long distance message service on the ground that the Specialized Common Carriers decision limited MCI's authorization to the provision of private line services. 60 F.C.C.2d at 35-44, 58.

MCI appealed the FCC's Execunet decision to the Court of Appeals for the District of Columbia Circuit and, in July 1977, the Court of Appeals set the decision aside. MCI Telecommunications Corp. v. FCC, 182 U.S. App. D.C. 367, 561 F.2d 365 (D.C. Cir. 1977), cert. denied, 434 U.S. 1040, 54 L. Ed. 2d 790, 98 S. Ct. 780 (1978). In its opinion, the Court of Appeals assumed, without deciding, that "a service like Execunet was not within the contemplation of the [FCC] when it made the Specialized Common Carriers decision," 561 F.2d at 378, but held that the FCC had not conducted a sufficient hearing -- either during the Specialized Common Carriers proceeding or at any subsequent time -- to justify any limitation on the operating authority of MCI and the other new specialized carriers. Id. at 378-80.

This decision by the District of Columbia Circuit -- handed down long after the events involved in the instant case occurred -- rendered virtually meaningless the debate between MCI and AT&T over the proper interpretation and definition of the specialized private line services to which the Specialized Common Carriers decision applied. AT&T also claims that it was only by virtue of this Court of Appeals decision that MCI was able to achieve profitability since, according to AT&T, MCI's costs for private line services (including FX and CCSA) substantially exceeded the rates AT&T was then charging its large users under the Telpak tariff. See infra, pp. 1099-1100.

D. The Pricing Controversies Between MCI and AT&T

From the time of MCI's entry into the telecommunications field, AT&T's prices for specialized long distance services had been a significant source of controversy. Initially the principal controversy centered on AT&T's Telpak tariff. The Telpak tariff, which accounted for most of AT&T's private line circuits at the time MCI commenced operations, offered private line service to large users under two schedules: (1) the user could obtain the right to up to 60 circuits between any two points for $30 per mile per month, or an average of $.50 per circuit mile per month if all circuits were being used; or (2) the user could obtain the right to up to 240 circuits between any two points for $85 per mile per month, or an average of $.35 per circuit mile per month if all 240 circuits were being used. PX 821.

AT&T originally instituted its Telpak tariff in 1961 as a competitive response to the FCC's decision to permit large telephone users to construct and operate their own private microwave systems.*fn18 At the time MCI entered the industry, in 1969, a number of microwave manufacturers were contending in proceedings before the FCC that Telpak rates were too low and unfairly hindered efforts to interest large users in building their own microwave systems. At the same time, however, a number of large users, including the federal government, were resisting any efforts to increase the Telpak tariff and, indeed, were contending that Telpak rates were already too high.

In 1968, shortly before MCI obtained its first authorization to enter the telecommunications industry, AT&T was permitted to increase its Telpak rates on an interim basis. During the period 1969-1972, AT&T was able -- over the strenuous objections of some Telpak users -- to obtain FCC approval for two additional rate increases. Although MCI contended strongly before the FCC that AT&T's Telpak tariff did not cover its fully distributed costs and was therefore predatory, the FCC, in 1977, ultimately rejected all of the attacks upon the Telpak tariff.*fn19

Concurrent with MCI's entry into the telecommunications field, AT&T also initiated studies to consider nationwide deaveraging of its rates for individual private line service. Pursuant to these studies, AT&T formulated a plan known as the Hi-Lo tariff, which provided for the deaveraging of AT&T's individual private line service into two principal rate categories.*fn20 Under Hi-Lo, AT&T would lower its rates on certain "high density" long distance routes, many of which MCI planned to serve. At the same time, AT&T would increase its rates between so-called "low density" cities, most of which MCI was not planning to serve. In February 1973, the month after MCI had announced its plans and prices for nationwide service, AT&T announced Hi-Lo to the public and sought permission from the FCC to file the new tariff. AT&T did not actually receive permission to file its Hi-Lo tariff until November 15, 1973, and the new tariff finally became effective on June 13, 1974.

E. MCI's Damage Evidence

Faced with unproductive negotiations, a "chilled" market caused by AT&T's early announcement of Hi-Lo, and curtailed sales commitments stemming in part from customer awareness of MCI's interconnection difficulties, MCI in mid-1973 began to pare down its construction program. Because the company's revenues were substantially lower than originally anticipated, MCI decided to defer construction on fifteen of the thirty-four routes contained in its original plan. In addition, MCI terminated almost one-third of its employees and renegotiated its bank loans to secure permission to use loan proceeds for working capital rather than for additional construction. Although MCI survived and eventually prospered, it alleges in the instant lawsuit that by the time the interconnection dispute was finally resolved, in May 1975, it had a far smaller system, slower growth rate and related lower net cash flows and profits than it would have had absent AT&T's unlawful interference.

At trial, MCI's proof of damages was based almost entirely on a lost profits study authored by MCI's former controller, Mr. Uhl. This study compared the profits that a hypothetical MCI -- undamaged by AT&T's allegedly unlawful actions -- would have enjoyed with MCI's actual and projected profit figures for the years 1973-1984.*fn21 The revenues posited for the "undamaged" MCI were based upon projections made by MCI in 1971-1972 and previously used for financing purposes. Among other presumptions, these revenue projections assumed that AT&T's Telpak service -- which the jury in this case found to be lawfully priced and marketed -- would not be in existence during the relevant time period. Costs for the "undamaged" MCI were derived from MCI's actual operating experience. These revenue and cost projections were then used to compute MCI's "lost profits," measured in net cash flow, for each of the years 1973-1994.*fn22 These computations resulted in an aggregated before-tax damage claim of $900,468,000.

AT&T, at trial, sharply disputed the accuracy of MCI's revenue projections. AT&T argued that MCI's own lost profits study demonstrated that MCI could never have achieved profitability in the private line business, even including FX and CCSA services, since MCI's costs for such services substantially exceeded the rates AT&T was then charging its large business users under the Telpak tariff. According to AT&T, MCI's lost profits study showed MCI's costs to be $.63 per circuit mile per month assuming that it could obtain local distribution facilities at the Western Union contract rates and $.74 per circuit mile per month, if it had to pay for those facilities on the basis of the current prices charged by AT&T. On either basis, AT&T argued that MCI's costs were substantially in excess of the Telpak rates and, hence, that MCI could not have undercut these rates and still have covered its costs.*fn23 AT&T also argued that because its ordinary long distance rates are averaged on a nationwide basis, and because state and federal regulatory policy has traditionally required AT&T to set its long distance rates high enough to subsidize its less profitable local telephone service, MCI and other specialized carriers, by competing exclusively in the most lucrative long distance markets, could easily undercut AT&T's artificially elevated long distance rates.

II. REGULATION AND THE ANTITRUST LAWS

A. The Federal Regulatory Scheme for Telecommunications

The first venture of the federal government into the regulation of telecommunications was section 7 of the Mann-Elkins Act of 1910,*fn24 which added telephone and telegraph companies to the list of common carriers regulated by the Interstate Commerce Commission ("ICC"). The Mann-Elkins Act imposed upon the newly-designated common carriers the obligation to provide service upon request at just and reasonable rates, without unjust discrimination or undue preference.*fn25 The Act did not, however, subject the telecommunications industry to the broad tariff and regulatory jurisdiction enjoyed by the ICC over railroads. See Essential Communications Systems v. AT&T, 610 F.2d 1114, 1117-19 (3d Cir. 1979) (detailing early regulation of telecommunication and railroad industries).

Competition among telephone services in the same geographic area was, in the early part of the century, a fact of life. Thus, the enactment, in 1914, of the Clayton Act's antimerger provisions*fn26 presented a serious obstacle to the development of an integrated national telephone network. The Willis-Graham Act addressed this problem by authorizing the ICC to approve the consolidation of telephone company properties into single companies if such consolidation was "of advantage to the persons to whom service is to be rendered and in the public interest." Willis-Graham Act of 1921, ch. 20, 42 Stat. 27 (1921) (current version at 47 U.S.C. § 221(a) (1976)). The statute granted express immunity from the antitrust laws for such consolidation. Id.

Thus, as of 1921, federal law recognized the telecommunications industry as a common carrier, subject to the consumer protection and non-discrimination provisions of the Mann-Elkins Act and exempt from antitrust liability for consolidations of competing local service systems. In other respects, however, the industry was subject to the antitrust laws. Indeed, in 1914, a government antitrust suit produced a consent decree against AT&T. See Essential Communications, 610 F.2d at 1119 & n.19. Aside from the ICC's jurisdiction to enforce AT&T's common carrier obligations, AT&T was free to determine its own rates, return on investment and service obligations. Federal law did not even impose upon AT&T an obligation to interconnect with other communications common carriers, although AT&T's local subsidiaries were subject to regulation at the state level. Id. at 1119.

In 1934, Congress enacted the Federal Communications Act, 47 U.S.C. § 151 et seq. (1976), which constitutes the primary federal regulatory mechanism for the telecommunications industry today. The 1934 Act severed regulation of the telephone, telegraph and radio industries from the ICC, and vested regulatory jurisdiction over those industries in the newly created Federal Communications Commission. The Act carried forward, almost verbatim, many provisions of the Mann-Elkins Act of 1910 -- for example, the just and reasonable tariff requirement and the prohibition against unjust or unreasonable discrimination.*fn27 The 1934 Act also imposed certain new obligations on the telecommunications industry -- for example, the requirement that regulated carriers interconnect or establish through routes with other common carriers. See 47 U.S.C. § 201(a) (1976).

With respect to tariffs, the 1934 Act continued the prior practice that tariffs be generated, at least in the first instance, by the carriers themselves. Under section 203(a) of the Act, these tariffs must be filed with the FCC, and carriers must give the FCC and the public ninety days notice of any proposed changes. 47 U.S.C. § 203(a) (1976); 47 U.S.C.A. § 203(b) (West Supp. 1982). No charge may be demanded or collected, or any service rendered, except in accordance with a filed tariff. Id. § 203(c). Section 204 of the Act further authorizes the FCC, either sua sponte or upon request, to conduct a hearing concerning the lawfulness of the rates embodied in a proposed tariff and to suspend operation of the tariff for up to five months. Id. § 204. If the Commission determines that the new tariff does not meet the requirements of the Act, it may prescribe a "just and reasonable" substitute, or set maximum and/or minimum charges to be observed. Id. § 205; see American Broadcasting Companies v. FCC, 207 U.S. App. D.C. 68, 643 F.2d 818, 822 (D.C. Cir. 1980). Any carrier which knowingly fails to obey an FCC order issued under this section is liable for a fine of $1000 per violation per day. In addition, any common carrier which does or causes to be done any act prohibited or declared unlawful by the Communications Act shall be liable "to the person or persons so injured thereby for the full amount of damages," plus attorneys' fees. 47 U.S.C. § 206 (1976).

B. Implied Immunity

AT&T contends that the district court should have dismissed this suit on its motion because the FCC's regulatory control over AT&T's conduct renders AT&T immune from antitrust liability.*fn28 The trial court denied the motion in a well-reasoned memorandum opinion. MCI Communications Corp. v. AT&T, 462 F. Supp. 1072 (N.D. Ill. 1978). Judge Grady traced the legislative history of the Federal Communications Act, and concluded that while AT&T is subject to considerable regulatory control and supervision, there is no indication that the Act was meant to immunize a carrier such as AT&T from the antitrust laws. 462 F. Supp. at 1086-87. Moreover, he concluded, the regulatory scheme to which AT&T is subject is not so wholly inconsistent with the antitrust laws as to require immunity. AT&T is not subject to conflicting requirements, nor would it be held liable for decisions which were not its own business judgment. The district court noted that the FCC did not sanction AT&T's conduct with regard to interconnections nor dictate its tariffs. Thus, while certain actions might ultimately have been subject to agency review, the initial decisions were the product of AT&T's private business judgment, and were not so heavily regulated as to remove them from AT&T's control.

On appeal, AT&T contends that the district court's decision incorrectly focused on blanket immunity rather than immunity for the particular actions of which MCI complained. Thus, AT&T argues that the critical question left unconsidered by the district court is "whether the charges in this case do in fact relate to matters basic to the pervasive regulatory scheme to which AT&T is subject." Appellant's Br. at 188. Our reading of the district court's opinion, however, convinces us that it did not, as AT&T insists, miss the point now raised on appeal. While the district court did address the question of "blanket immunity" (i.e., whether regulation by the FCC under the public interest standard contained in the Communications Act is wholly inconsistent with the antitrust laws), 462 F. Supp. at 1078, 1080-82, it also fully considered AT&T's "fall back position . . . that even though all of AT&T's conduct may not be immunized, the FCC, in its pervasive regulation, has approved each of the allegedly anticompetitive activities of which MCI complains and that therefore AT&T should obtain at least ad hoc immunity from antitrust laws." Id. at 1078, 1082-1102. For the reasons largely set forth in the district court's memorandum opinion denying AT&T's motion to dismiss, we reject AT&T's assertion of implied immunity.

As the district court recognized, the Communications Act of 1934 does not expressly grant AT&T immunity from the antitrust laws for the conduct challenged in the instant case. Nor does the legislative history of the Communications Act indicate how Congress intended that the Act and the antitrust laws were to be reconciled. See United States v. AT&T, 461 F. Supp. 1314, 1321 (D.D.C. 1978); Comment, AT&T and the Antitrust Laws: A Strict Test for Implied Immunity, 85 Yale L.J. 254, 269 (1975). It is well established, however, that regulated industries "are not per se exempt from the Sherman Act." Georgia v. Pennsylvania R.R., 324 U.S. 439, 456, 89 L. Ed. 1051, 65 S. Ct. 716 (1945). "Repeal of the antitrust laws by implication is not favored and not casually to be allowed. Only where there is a 'plain repugnancy between the antitrust and regulatory provisions' will repeal be implied." Gordon v. New York Stock Exchange, 422 U.S. 659, 682, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975) (quoting United States v. Philadelphia National Bank, 374 U.S. 321, 350-51, 10 L. Ed. 2d 915, 83 S. Ct. 1715 (1963)). As a further limitation, repeal is to be regarded as implied only where necessary to make the regulatory scheme work, and even then, only to the minimum extent necessary. Silver v. New York Stock Exchange, 373 U.S. 341, 357, 10 L. Ed. 2d 389, 83 S. Ct. 1246 (1963); see National Gerimedical Hospital & Gerontology Center v. Blue Cross, 452 U.S. 378, 69 L. Ed. 2d 89, 101 S. Ct. 2415 (1981).

Application of these general principles to a particular claim of implied immunity requires an evaluation of the specific regulatory scheme involved and the administrative authority exercised pursuant to that scheme. Northeastern Telephone Co. v. AT&T, 651 F.2d 76, 83 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982); see National Gerimedical Hospital & Gerontology Center v. Blue Cross. Thus, in our case, the inquiry must focus upon (1) whether the activities that are the subject of MCI's complaint were required or approved by the Federal Communications Commission, pursuant to its statutory authority, in a way that is incompatible with antitrust enforcement, see, e.g., Gordon v. New York Stock Exchange, 422 U.S. 659, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 9 L. Ed. 2d 325, 83 S. Ct. 476 (1963), or (2) whether these activities are so pervasively regulated "that Congress must be assumed to have forsworn the paradigm of competition." Northeastern Telephone, 651 F.2d at 82; see United States v. AT&T, 461 F. Supp. 1314, 1324 (D.D.C. 1978).

With respect to interconnections, we conclude, as did the district court, that the FCC's regulatory authority under the Communications Act does not preclude application of the Sherman Act. See 462 F. Supp. at 1089-96. The mere pervasiveness of a regulatory scheme does not immunize an industry from antitrust liability for conduct that is voluntarily initiated. Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973); see Comment, The Application of Antitrust Law to Telecommunications, 69 Calif. L. Rev. 497, 509 (1981). Although the FCC has authority to compel interconnection under section 201(a) of the Act, the initial decision whether to interconnect rests with the utility, and the record shows that the FCC did not control or approve of AT&T's actions here. Nor has the FCC supervised AT&T's interconnection practices so closely that the FCC's approval could be inferred. Cf. Gordon v. New York Stock Exchange, 422 U.S. 659, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975).

Other circuits that have considered AT&T's implied immunity in interconnection-type disputes have uniformly rejected arguments the same as or similar to those made by AT&T in the instant case. See, e.g., Northeastern Telephone Co. v. AT&T, 651 F.2d 76 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982); Phonetele, Inc. v. AT&T, 664 F.2d 716 (9th Cir. 1981), cert. denied, 459 U.S. 1145, 103 S. Ct. 785, 74 L. Ed. 2d 992, 51 U.S.L.W. 3533 (1983); Mid-Texas Communications Systems v. AT&T, 615 F.2d 1372, 1377-82 (5th Cir.), cert. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980); Sound, Inc. v. AT&T, 631 F.2d 1324, 1327-31 (8th Cir. 1980) (citing with approval Judge Grady's memorandum opinion); Essential Communications Systems v. AT&T, 610 F.2d 1114 (3d Cir. 1979); see also United States v. AT&T, 461 F. Supp. at 1320-30. But see Southern Pacific Communications Co. v. AT&T, 556 F. Supp. 825 (D.D.C. 1982). We agree with the reasoning of these decisions and are not persuaded that a contrary result is warranted here.

AT&T relies heavily on Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 34 L. Ed. 2d 577, 93 S. Ct. 647 (1973), and Pan American World Airways, Inc. v. United States, 371 U.S. 296, 9 L. Ed. 2d 325, 83 S. Ct. 476 (1963), to support its claim that "matters at the heart of a pervasive scheme of common carrier, or public utility, regulation [here, presumably, AT&T's interconnection and pricing policies] are immune from antitrust liability." Appellant's Br. at 183. In both of these cases, however, the Supreme Court found that the transactions challenged as violative of the antitrust laws fell precisely within the detailed scheme of administrative oversight established by Congress. Thus, in Hughes Tool, the Court held that where the Civil Aeronautics Board (CAB) had specifically authorized certain transactions between a parent and its subsidiary, those transactions were immunized from antitrust liability by section 414 of the Federal Aviation Act, 49 U.S.C. § 1378 (1976). Similarly, in Pan American Airways, the Court held that section 411 of the Federal Aviation Act granted to the CAB the very jurisdiction over the division of territories and allocation of air carrier routes that was the subject of the government's antitrust complaint. In the instant case, by contrast, neither AT&T's interconnection decisions nor its price structure policies are dictated, in the first instance, by the FCC (although, of course, AT&T's overall rate of return is subject to continuing surveillance). Moreover, to the extent that any FCC decisions are relevant to AT&T's claim of implied immunity, those decisions disapprove of, rather than condone, AT&T's actions. Thus, this is not a case like Hughes Tool or Pan American Airways, where the refusal to grant antitrust immunity could subject AT&T to conflicting and potentially irreconcilable liability standards. See also Phonetele, Inc., 664 F.2d at 732-34.

AT&T also cites the case of FCC v. RCA Communications, Inc., 346 U.S. 86, 97 L. Ed. 1470, 73 S. Ct. 998 (1953), for the proposition that the public interest standard embodied in the Communications Act is inconsistent and thus presumably irreconcilable with the policy of the antitrust laws favoring competition. However, the Eighth Circuit, in Sound, Inc. v. AT&T, 631 F.2d 1324 (8th Cir. 1980), recently rejected precisely this irreconcilability argument. In Sound, Inc., AT&T argued that it was exempt, by virtue, inter alia, of the public interest standard contained in the Communications Act, from antitrust liability arising out of its rate structure and marketing practices for terminal telephone equipment. In rejecting AT&T's assertion that the public interest standard of the Communications Act was necessarily inconsistent with the pro-competition standard of the antitrust laws, the Eighth Circuit noted that the FCC had exercised its supervisory authority so as to encourage rather than discourage competition in the terminal equipment market. In light of this policy, the court concluded that "the maintenance of an antitrust suit will not conflict with the operation of the regulatory scheme authorized by Congress but will supplement that scheme." 631 F.2d at 1330. Similarly, in the instant case, the interconnection policies adopted by the FCC during the time period relevant to this litigation appear designed to promote rather than inhibit competition in the specialized telecommunications field. Thus, the allowance of antitrust liability is likely to complement rather than undermine the applicable statutory scheme.

AT&T's assertion of implied immunity with respect to MCI's predatory pricing allegations presents a closer question. Because section 201(b) of the Communications Act requires that AT&T rates be "just and reasonable," and because both AT&T's rates and rate making methodology are subject to continuing supervision by the FCC, it is probable that AT&T enjoys less flexibility in setting rates than it does, for example, in making initial interconnection decisions. Moreover, it can be argued that the hearing and enforcement provisions of the Communications Act itself afford competitors such as MCI an adequate opportunity to contest and seek relief from tariffs they consider unreasonable or unfair.*fn29 Although these arguments are not entirely without merit, we believe that, under the particular circumstances of this case, AT&T is not entitled to antitrust immunity for the competitive rate filings which form the basis of MCI's predatory pricing claims.

Although the Communications Act grants the FCC potentially broad authority over interstate and foreign telephone rates, in practice, this authority is considerably more circumscribed. First, as the district court in this case noted, the Act gives the carrier sole responsibility for filing a tariff, and a carrier may file a new or revised tariff at any time. See 47 U.S.C. § 204 (1976). Thus, it is AT&T, not the FCC, that has the primary responsibility for initiating and setting both regular and private line telephone rates. See Sound, Inc., 631 F.2d at 1330. "When [such decisions] are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws." Otter Tail, 410 U.S. at 374.*fn30

Moreover, although the Communications Act gives the FCC the right to conduct hearings on proposed tariffs, a new tariff automatically goes into effect after 90 days unless acted upon by the FCC in its discretion. See 47 U.S.C. § 203(b)(1) (Supp. 1981). Thus, the FCC does not expressly approve or adopt as agency policy every tariff it permits to become effective. "By permitting a tariff to go into effect, the FCC does not assert that it has examined the content of the tariff and found it necessary or appropriate to effectuate the regulatory program, nor does it have an obligation under the Act to make such a finding." Phonetele, 644 F.2d at 733; see Essential Communications, 610 F.2d at 1124; MCI Telecommunications Corp. v. FCC, 182 U.S. App. D.C. 367, 561 F.2d 365, 374 (D.C. Cir. 1977), cert. denied, 434 U.S. 1040, 54 L. Ed. 2d 790, 98 S. Ct. 780 (1978).

The less than comprehensive nature of the FCC's authority over tariffs is further reinforced by the huge volume of tariff filings received by the Commission. During the twelve month period between September 1974 and August 1975, for example, the FCC received 1,371 tariff filings, totaling 11,491 pages. Because of this volume, it was able to investigate only a small percentage of the tariffs filed. See United States v. AT&T, 461 F. Supp. at 1326. Recognizing these practical limitations on its regulatory jurisdiction, the FCC has acknowledged, in an antitrust case involving implied immunity questions similar to those at issue here, that "rate filings generally proceed from the carrier's independent judgment . . . ." Id. at 1326 (quoting Memorandum of FCC, filed December 30, 1975, pp. 19-20). Moreover, the FCC has consistently maintained -- in contrast to the SEC in the stock exchange cases relied upon by AT&T -- that antitrust enforcement is not precluded in this area.*fn31 United States v. AT&T, 461 F. Supp. at 1326. Finally, as is the case in the interconnection context, the actual FCC decisions relevant to the pricing policies challenged as predatory in the instant case have tended to disapprove of, rather than support, those policies.*fn32 We thus conclude that where, as here, the pricing decisions complained of are more the result of business judgment than regulatory coercion, and the FCC has neither dictated nor approved of those decisions, the challenged rate filings are not immune from antitrust scrutiny.*fn33 See City of Kirkwood v. Union Electric Co., 671 F.2d 1173, 1176-79 (8th Cir. 1982), cert. denied, 459 U.S. 1170, 103 S. Ct. 814, 74 L. Ed. 2d 1013 (1983) (no immunity for rate filing under similar provisions of Federal Power Act); City of Mishawaka v. Indiana & Michigan Electric Co., 560 F.2d 1314, 1318-21 (7th Cir. 1977), cert. denied, 436 U.S. 922, 56 L. Ed. 2d 765, 98 S. Ct. 2274 (1978) (denying immunity for price squeeze claim arising out of relationship between electric utility's filed wholesale and retail rates); cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 49 L. Ed. 2d 1141, 96 S. Ct. 3110 (1976) (denying state action immunity for light-bulb-exchange program contained in tariff approved by state public utility commission).

C. The Impact of Regulation

Our conclusion that AT&T is not entitled to antitrust immunity in the instant case does not mean that AT&T's status as a regulated common carrier is irrelevant to our evaluation of AT&T's conduct. On the contrary, an industry's regulated status is an important "fact of market life," the impact of which on pricing and other competitive decisions "is too obvious to be ignored." ITT v. General Telephone and Electronics Corp., 518 F.2d 913, 935-36 (9th Cir. 1975) (footnote omitted). For this reason, the Supreme Court has repeatedly recognized that consideration of federal and state regulation may be proper even after the issue of antitrust immunity has been resolved. United States v. Marine Bancorporation, 418 U.S. 602, 627, 41 L. Ed. 2d 978, 94 S. Ct. 2856 (1975) (application of antitrust doctrine to bank mergers "must take into account the unique federal and state restraints on [defendant's conduct]. Failure to do so would produce misconceptions that go to the heart of the doctrine itself."); see Silver v. New York Stock Exchange, 373 U.S. 341, 360-61, 10 L. Ed. 2d 389, 83 S. Ct. 1246 (1963) (although applicable statutory scheme not sufficiently pervasive to create antitrust immunity, particular acts of self regulation -- even if in restraint of trade -- may be justified with reference to that scheme); Otter Tail, 410 U.S. at 381 (court, in fashioning antitrust remedy, "should [not] be impervious to [regulated utility's] assertion that compulsory interconnection or wheeling will erode its integrated system and threaten its capacity to serve adequately the public").

Similarly, several recent decisions of the courts of appeals involving regulated industries have emphasized the "continuing significance of regulation" in evaluating alleged antitrust violations. Mid-Texas Communications Systems v. AT&T, 615 F.2d 1372, 1385 (5th Cir. 1980), cert. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980) (antitrust laws "are not so inflexible as to deny consideration of government regulation."); Almeda Mall, Inc. v. Houston Lighting & Power Co., 615 F.2d 343, 354 (5th Cir.), cert. denied, 449 U.S. 870, 66 L. Ed. 2d 90, 101 S. Ct. 208 (1980) ("Monopolization cases involving . . . regulated industries are special in nature and require close scrutiny."); Jacobi v. Bache & Co., 520 F.2d 1231, 1237-39 (2d Cir. 1975), cert. denied, 423 U.S. 1053, 46 L. Ed. 2d 642, 96 S. Ct. 784 (1976) (rejecting application of per se liability rule in light of regulation of stock exchange); ITT, 518 F.2d at 935-36 (impact of regulations must be assessed as fact of market life). As Professors Areeda & Turner have stated:

Antitrust courts can and do consider the particular circumstances of an industry and therefore adjust their usual rules to the existence, extent, and nature of regulation. Just as the administrative agency must consider the competitive premises of the antitrust laws, the antitrust court must consider the peculiarities of an industry as recognized in a regulatory statute.

1 P. Areeda & D. Turner, Antitrust Law P223d (1978).

Whether in a regulated context or not, the broad outline of the offense of monopolization is well understood. Most recently, the Supreme Court has stated:

The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

United States v. Grinnell, 384 U.S. 563, 570-71, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); see Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 274-76 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061 (1980). Cases dealing with non-regulated industries have developed a number of analytic tools designed to aid courts in identifying each of these elements. In many instances, however, these tools are of only limited value in resolving monopolization charges against regulated monopolies. See Watson & Brunner, Monopolization by Regulated "Monopolies": The Search for Substantive Standards, 22 Antitrust Bull. 559, 563 (1977). In particular, the presence of a substantial degree of regulation, although not sufficient to confer antitrust immunity, may affect both the shape of "monopoly power" and the precise dimensions of the "willful acquisition or maintenance" of that power. Id.

According to the Supreme Court, monopoly power may be defined as "the power to control prices or exclude competition" in a relevant market. United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 391, 76 S. Ct. 994, 100 L. Ed. 2d 1264 (1956). In many cases involving unregulated industries, however, courts have eschewed examination of the ostensible monopolist's actual degree of control over prices or competition, and have relied solely on statistical data concerning the accused firm's share of the market. Where that data reveals a market share of more than seventy to eighty percent, the courts have inferred the existence of monopoly power. See, e.g., United States v. Grinnell, 384 U.S. at 571, American Tobacco Co. v. United States, 328 U.S. 781, 797, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946); Standard Oil Co. v. United States, 221 U.S. 1, 33, 55 L. Ed. 619, 31 S. Ct. 502 (1911).

Such a heavy reliance on market share statistics is likely to be an inaccurate or misleading indicator of "monopoly power" in a regulated setting. In many regulated industries, each purveyor of service, regardless of absolute size, is in a monopoly position with regard to its customers. Indeed, while a regulated firm's dominant share of the market typically explains why it is subject to regulation, the firm's statistical dominance may also be the result of regulation. See United States v. Marine Bancorporation, 418 U.S. at 633. For these reasons, the size of a regulated company's market share should constitute, at most, a point of departure in assessing the existence of monopoly power. Ultimately, that analysis must focus directly on the ability of the regulated company to control prices or exclude competition -- an assessment which, in turn, requires close scrutiny of the regulatory scheme in question.*fn34

In the instant case, the district court properly instructed the jury that, in determining whether AT&T possessed monopoly power in the relevant market,

you may consider the effect of the FCC's exercise of regulatory authority over prices and entry, including interconnection. Similarly, you may consider the effect of the exercise by state regulatory agencies of regulatory authority over prices and entry in connection with the provision of local services and facilities. That AT&T may have had the largest share or the entire share of the telephone business in certain areas would not be sufficient to establish that AT&T possessed monopoly power if in fact regulation by regulatory agencies prevented AT&T from having the power to restrict entry or control prices.

App. 1200.

Although the district court's instructions in this area might have been more helpful if they had described, in more detail, the specific regulatory scheme to which AT&T was subject, see Mid-Texas, 615 F.2d at 1386-87, we believe the instructions, taken as a whole, adequately apprised the jury of its duty "to take into account the unique federal and state regulatory restraints" to which AT&T was subject. Id. at 1387. We, therefore, reject AT&T's contention that the trial court's instructions on this issue left the jury without any meaningful way to assess the impact of regulation on the existence or non-existence of AT&T's monopoly power (and constituted reversible error).

AT&T's status as a regulated public utility also bears on the second element of a monopolization offense: the willful acquisition or maintenance of monopoly power. The precise dimensions of the "willfulness" standard have been the subject of considerable litigation and varying formulations even in cases involving unregulated industries. Some courts, building upon Judge Learned Hand's noted opinion in United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), have concluded that monopolistic conduct can be presumed from the possession of monopoly power unless the accused firm affirmatively demonstrates that its monopoly position has been "thrust upon it." Id. at 432; see American Tobacco Co. v. United States, 328 U.S. at 813-14. Under this analysis, if the ordinary business conduct of a dominant firm leads to the acquisition or maintenance of monopoly power, that conduct is presumed to reflect the requisite willful monopolistic intent. Whatever merit this presumption may have in other contexts,*fn35 we believe it is a particularly inappropriate means of identifying monopolistic conduct by a regulated utility or common carrier. For these industries, anticipating and meeting all reasonable demands for service is often an explicit statutory obligation. See, e.g., 47 U.S.C. § 201(a) (1976) ("It shall be the duty of every common carrier . . . to furnish such communication service upon reasonable request therefor."). To apply the Alcoa presumption to such conduct would be tantamount to holding that adherence to a firm's regulatory obligation could, by itself, constitute improper willfulness in a section 2 monopolization case.

This circuit has already declined to endorse such an anomalous result. In City of Mishawaka v. American Electric Power Co., 616 F.2d 976, 985 (7th Cir. 1980), cert. denied, 449 U.S. 1096, 66 L. Ed. 2d 824, 101 S. Ct. 892 (1981), we specifically held that "in the particular circumstances of a regulated utility . . . entitled to recover its cost of services and provide its investors with a reasonable rate of return, we believe that something more than general intent should be required to establish a Sherman Act violation." See also Watson & Brunner, supra, at 574-79 (willfulness by a regulated monopoly should be demonstrable only by evidence of predatory conduct or other exclusionary acts contrary to public policy). We reaffirm our holding in Mishawaka and, therefore, reject MCI's contention on cross-appeal that the trial court erred in requiring MCI to prove that each allegedly anticompetitive act or practice attributed to AT&T was done with the intent to maintain a monopoly in the relevant market.*fn36

The impact of regulation was also an important element of AT&T's defense in the instant case. Particularly with regard to the interconnection controversy, AT&T argued that its dealings with MCI were reasonable and that they represented a good faith attempt to comply with AT&T's regulatory obligations under section 201 of the Communications Act. AT&T claims that the trial court's instructions improperly prevented the jury from considering this defense, in that the instructions were fatally "silent concerning the overall structure of the Communications Act, the public interest standards under which the provisions of that Act are administered by the FCC and to which common carriers are required to conform their conduct, and the requirements set forth in the Act relating to the particular interconnection and pricing controversies presented to the jury for resolution." Appellant's Br. at 138.

MCI, by contrast, argues in its cross-appeal that the district court gave too much credence to AT&T's regulatory defense. In particular, MCI claims that the district court improperly held it to an "over-rigorous burden of proof" by instructing the jury that, if AT&T believed in good faith that interconnection with MCI would have violated established regulatory policies, then AT&T's refusal to interconnect could not be considered anticompetitive conduct. We reject both parties' contentions. The district court in this case properly allowed AT&T to assert a defense based on good faith adherence to its regulatory obligations. See Mid-Texas, 615 F.2d at 1388-90. The district court also properly articulated this defense in its instructions to the jury. Thus the district court instructed the jury that

MCI must prove more, however, than the fact that AT&T refused to provide the interconnections. As you know, AT&T contends that it refused to provide the connections because it believed that it had not been ordered to do so, that MCI was not authorized to provide the service, and that it would have violated established regulatory policies for MCI to receive the connections. If AT&T refused the interconnections because of such reasons, believing in good faith that they justified the refusal, then the refusal to provide the interconnections was not anticompetitive conduct and cannot be considered conduct engaged in for the purpose of maintaining a monopoly.

MCI has the burden of proving that in refusing the FX and CCSA interconnections AT&T acted with anti-competitive intent, for the purpose of maintaining a monopoly, rather than for what it in good faith regarded as legitimate reasons.

App. 1201.

Similarly, with respect to the charge that AT&T unlawfully pre-announced its Hi-Lo tariff, the jury was told to consider AT&T's contention that the time interval involved was reasonable and required by applicable regulations. In addition, the district court instructed the jury that:

With respect to those facilities and interconnections which AT&T did not provide, its position is that its failure to do so was based upon a good faith belief that it would have violated established regulatory policies and therefore that it acted reasonably in all the circumstances.*fn37

App. 1200.

We believe these instructions adequately conveyed to the jury the substance of AT&T's regulatory defense and, thus, allowed the jury to "consider the effect of regulation in ascertaining whether Bell misused its monopoly power." Mid-Texas, 615 F.2d at 1389. We reject AT&T's contention that the trial court's failure to provide a more detailed exposition of the standards contained in the Communications Act constitutes reversible error. We also reject MCI's counter-argument that the district court's instructions in this area improperly placed upon MCI the burden of disproving AT&T's subjective good faith. See California Computer Products, Inc. v. IBM Corp., 613 F.2d 727, 736 (9th Cir. 1979) (holding that a verdict must be directed in favor of defendant when plaintiff's evidence is insufficient to establish that defendant acted unreasonably). In the particular context of an industry subject to extensive and rapidly changing regulatory demands, we believe that an antitrust defendant is entitled both to raise and to have the jury consider its good faith adherence to regulatory obligations as a legitimate antitrust defense. See Mid-Texas, 615 F.2d at 1389-90; City of Mishawaka, 616 F.2d at 985.

Finally, we believe the fact of FCC regulation is relevant to our analysis of antitrust principles in another, more subtle way. AT&T, as the dominant firm in a regulated industry recently opened in part to competition, is subject to dual, and sometimes conflicting, principles of regulatory and antitrust law. As already indicated, we believe the trial court properly reconciled these bodies of law by allowing AT&T to present evidence as to its good faith belief in its compliance with regulatory requirements. In addition, the fact of FCC regulation to some extent affects our view of the appropriate purposes and proper scope of antitrust law in the present context -- specifically, whether we should focus our examination on economic efficiency and consumer benefit or whether we should more expansively consider the political and social consequences of bigness or concentration of economic power. Compare R. Bork, The Antitrust Paradox (1978) and R. Posner, Antitrust Law (1976) with L. Sullivan, Handbook of the Law of Antitrust § 2 (1977) and Pitofsky, The Political Content of Antitrust, 127 U. Pa. L. Rev. 1051 (1979) and Schwartz, "Justice" and Other Non-Economic Goals of Antitrust, 127 U. Pa. L. Rev. 1076 (1979).

Certain factors may tend to distinguish this from ordinary monopolization cases. AT&T is a public utility subject to public regulation, occupying a unique place in the American industrial scene. To the extent that it may have enjoyed economies of scale and significant technological resources, the political and regulatory judgment, until recently, has been to tolerate the political and social consequences of its size in the ostensible interest of reliable, effective and economic telecommunications service. Now this regulatory judgment has been drastically modified, and competition -- with all its economic, political and social consequences -- is transforming the telecommunications industry.

Certainly this transformation, carried out at the behest of regulatory authorities, is meeting the broadest objectives of the antitrust laws at least as effectively as they might be pursued by this court in this case. The FCC has exercised its powers under the Communications Act and has instituted sweeping pro-competitive changes in the telecommunications industry to accommodate the broad demands of national communications policy. We also note the role of the Justice Department, AT&T itself, and the federal district court in the consent decree entered recently between AT&T and the government in the District Court for the District of Columbia. See United States v. AT&T, 552 F. Supp. 131, 43 Antitrust & Trade Reg. Rep. (BNA) No. 1077 (Spec. Supp. Aug. 12, 1982). The massive restructuring of AT&T accomplished in that decree is an additional avenue through which the issues of the concentration of economic power in the Bell System, as well as its political power, are being addressed.

We acknowledge with approval the populist origins of the antitrust laws as well as the preeminent role of the Sherman Act as a charter of economic freedom.*fn38 But we also believe that, as we have pointed out, larger concerns about broad pro-competitive policy, economic concentration and political power have been, and are being at this very moment, effectively addressed by the regulators, and possibly by the Congress. Hence, we have tended to believe it appropriate to focus at this time and in this case upon the specific issues of economic efficiency and consumer benefit which are directly presented. Thus, our resolution of the allegations of predatory pricing and unlawful failure to interconnect MCI to Bell's local distribution facilities has centered on the questions whether prices cover costs and whether the denied facilities are essential. We are, of course, not insensitive to broader social and political issues, but as indicated, we think that our principal task is to deal in depth with the specific questions presented.

III. PREDATORY PRICING

At trial MCI alleged that AT&T had engaged in predatory pricing of both its Telpak and Hi-Lo services for long distance business communications. The jury found that Telpak was lawfully priced, but that Hi-Lo was priced below its fully distributed costs and was predatory. We disapprove this finding with respect to Hi-Lo because of erroneous instructions, the use of an improper cost standard and insufficiency of the evidence. We also disapprove the jury's finding that AT&T unlawfully preannounced its Hi-Lo tariff. Further, we reject MCI's cross-appeal on Telpak's marketing plan and sustain the jury's finding that Telpak was lawfully priced and marketed.

A. Jury Instructions

One of the crucial issues presented at trial concerned the proper standard for determining predatory pricing. Both parties presented expert testimony on this issue. AT&T argued that unless its prices for a particular service failed to cover that service's long-run incremental costs the price could not be found predatory. MCI contended that proof of price below fully distributed cost was sufficient to establish predation.

At trial Judge Grady refused to instruct the jury as to which cost measure was the correct legal standard to determine predatory pricing. Instead, he left the choice of a cost-based standard for predation -- in this case fully distributed costs ("FDC") or long-run incremental costs ("LRIC") -- for the jury to decide as a question of fact. Judge Grady instructed the jury:

You're going to have to decide whether it should be fully distributed costs on the one hand, or incremental costs on the other hand; and in doing that you'll have to look at all the evidence and decide which is the cost that truly reflects the actual cost of producing the service.

The test for determining whether Hi-Lo was predatory is the same as for Telpak. Again, it is a question of whether the price covered what you consider the applicable cost. If it did, you may not infer predatory intent. If it did not, you may infer predatory intent.

Tr. 11486-87.*fn39 As a result, the special verdict required the jury to check which cost standard it felt was appropriate and then decide whether AT&T's prices were below that measure of cost: either LRIC or FDC.

This we hold to be error. The choice of a cost-based standard for evaluating claims of predatory pricing is a question of law to be decided by the trial judge. Thus, while several courts have stated that the appropriate cost-based standard for predation may differ depending on the facts of the case, see, e.g., Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980), both courts and commentators are united in regarding the selection of that standard as a question of law. Indeed, the entire judicial and academic struggle to enunciate an appropriate definition of predatory pricing reflects the legal rather than factual nature of the question. Since a finding of below-cost pricing permits the jury to infer, or even presume, anticompetitive intent, it is imperative that the judge instruct the jury on the relevant cost standard to compare with defendant's prices. See 2 P. Areeda & D. Turner, supra, at P315.

MCI relies on Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391 (4th Cir. 1974), to support the proposition that the jury may select the appropriate cost standard to evaluate a predatory pricing claim. MCI's reliance here reflects an overly broad interpretation of that case. In Greenville Publishing the Fourth Circuit reversed a grant of summary judgment for the defendant in a case charging monopolization and attempted monopolization. On the issue of predatory pricing the court took note of affidavits by the defendant purporting to show that the operation of the advertising guide in question was profitable and that prices covered average variable costs. Plaintiffs challenged both the actual calculation of these costs and the failure of the defendant to include in its cost calculations "any portion of the company's fixed expenses or personnel costs." Id. at 397 & n.10.

The court in Greenville Publishing reversed the grant of summary judgment in favor of the defendant stating "the sum of this evidence presents an issue of disputed fact." Id. at 398. It is misleading, however, in the context of the instant case, to place much reliance on this sentence. The court in Greenville Publishing was not concerned with which entity -- judge or jury -- is empowered to select the proper cost-based standard for determining predation. Rather, the Greenville Publishing court was addressing the much more general issue of the propriety of summary judgment in a complex antitrust case. At the summary judgment stage, the plaintiffs in Greenville Publishing had presented no evidence on the issue of anticompetitive intent other than the pricing policies of the defendant. Hence, the propriety of summary judgment on plaintiffs' monopolization and attempted monopolization claims turned entirely on whether any inferences of intent could be drawn from the relationship between the defendant's prices and costs. The Fourth Circuit's refusal to uphold the grant of summary judgment in Greenville Publishing merely represents the traditional view that summary judgment is generally inappropriate in complex antitrust cases where intent may be difficult to discern. Id. at 398 (citing Poller v. Columbia Broadcasting System, 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962)).

There is no support in the cases for the proposition that a jury may simply choose the cost-based standard it feels is most appropriate. Indeed, the only other purportedly apposite case cited by MCI in its brief, the district court's opinion in Northeastern Telephone Co. v. AT&T, 497 F. Supp. 230 (D.Conn. 1980), has been reversed on this very point, with the Second Circuit stating that the cost standard used to determine whether a monopolist's prices were predatory was a legal question. 651 F.2d 76, 87 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982), rev'g in part 497 F. Supp. 230, 240-41 (D. Conn. 1980). Judge Grady himself acknowledged that it is inappropriate for the jury to consider all possible economic theories of predation in ruling that MCI's originally proffered profit-maximizing theory was inadequate as a matter of law.

B. Below Cost Pricing

Liability for predatory pricing represents an exception to the general antitrust regime which contemplates that no limits on price competition shall be imposed. Predatory pricing is prohibited because of the fear that a monopoly or dominant firm will deliberately sacrifice present revenues for the purpose of driving rivals from the market and then recoup its losses through higher profits earned in the absence of competition. See Northeastern Telephone Co. v. AT&T, 651 F.2d 76, 86 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982); Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697, 698 (1975). [Hereinafter cited as Areeda & Turner, Predatory Pricing ].

There is at present, in cases such as the one before us, no reliable way to determine whether predatory pricing has occurred without some comparison between the prices charged and a properly defined measure of the cost of production. A subjective test based wholly upon intent is almost incapable of distinguishing between pro- and anticompetitive price cuts by a monopolist. Areeda, Predatory Pricing (1980), 49 Antitrust L.J. 897, 899 (1980); R. Posner, supra, at 188. Nor is a subjective test capable of identifying which pricing strategies represent rational business decisions and which have no legitimate business purpose and are designed only to injure competition.

In addition, a test based wholly on intent is unworkable.*fn40 Even if it were possible to identify those persons within a firm whose intentions are relevant, the meaning of the evidence will usually be obscure. After all, competition consists of winning business from rivals. The intent to preserve or expand one's market share is presumptively lawful. To encourage judges and juries to rely overly on nonprobative data allegedly bearing on a firm's "state of mind" invites the twin mischiefs of (1) burdening litigation with thousands of documents about the firm's motives and calculations; and (2) encouraging inconsistent and quixotic results. Areeda, Predatory Pricing (1980), 49 Antitrust L.J. 897, 899 (1980); see R. Posner, supra, at 189-90.*fn41

In the absence of an objective standard, firms making pricing decisions in the presence of competition would be unable to ascertain what price reductions may be legally undertaken. Because the antitrust laws are designed to encourage vigorous competition, as well as to promote economic efficiency and maximize consumer welfare, such uncertainty seriously undermines the goals of antitrust enforcement. As one commentator has recently emphasized:

It is imperative that courts timely establish objective and understandable pricing standards which bring into sharp focus the line which separates commendable price reductions from predatory pricing practices. Such standards are necessary for the guidance of businessmen. . .. Businessmen should not be put into the position where they must either forego competitive price decreases or risk treble damages in Sherman Act suits.

Sherer, Predatory Pricing: An Evaluation of its Potential for Abuse Under Government Procurement Contracts, 6 J. Corp. L. 531, 539 (1981).

Within the past decade, both economists and lawyers have recognized the need for an objective standard to evaluate predatory pricing claims.*fn42 Advocates of an objective test agree that price cuts by a dominant firm or monopolist are nothing more than lawful competition on the merits if prices remain above costs. Since such price cuts benefit consumers by providing greater output of desired goods at lower prices, they are pro-competitive and cannot result in the elimination of equally efficient competitors.

Similarly, the courts have nearly unanimously adopted some form of a cost-based standard in deciding questions of predation. E.g., Northeastern Telephone Co. v. AT&T, 651 F.2d 76 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430-32 (7th Cir. 1980); California Computer Products, Inc. v. IBM Corp., 613 F.2d 727, 742-43 (9th Cir. 1979); Janich Bros. v. American Distilling Co., 570 F.2d 848, 857 (9th Cir. 1977), cert. denied, 439 U.S. 829, 58 L. Ed. 2d 122, 99 S. Ct. 103 (1978); Pacific Engineering & Production Co. v. Kerr-McGee Corp., 551 F.2d 790, 797 (10th Cir.), cert. denied, 434 U.S. 879, 54 L. Ed. 2d 160, 98 S. Ct. 234 (1977); National Association of Regulatory Utility Commissioners v. FCC, 173 U.S. App. D.C. 413, 525 F.2d 630, 637-38 & n.34 (D.C. Cir.), cert. denied, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976).

MCI nonetheless argues in its cross-appeal that the district court erred in requiring it to prove that AT&T priced its Hi-Lo service below any measure of cost. MCI contends that, if AT&T knowingly sacrificed revenue (i.e., failed to maximize its profits) with the intent to injure competition, this court should hold that behavior to constitute unlawful predatory pricing. In support of this "profit maximization" theory, MCI cites a trio of cases. Hanson v. Shell Oil Co., 541 F.2d 1352, 1358 n.5 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 50 L. Ed. 2d 792, 97 S. Ct. 813 (1977); International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 724 (5th Cir. 1975), cert. denied, 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411 (1976); ILC Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp. 423, 432 (N.D. Cal. 1978), aff'd per curiam sub nom. Memorex Corp. v. IBM Corp., 636 F.2d 1188 (9th Cir. 1980), cert. denied, 452 U.S. 972, 69 L. Ed. 2d 983, 101 S. Ct. 3126 (1981).

Each of these cases contains language to the effect that a price may be predatory if it is below the short-run profit-maximizing price and barriers to new entry are great. Assuming, arguendo, that these statements are more than mere dicta, we must reject such a "profit maximization" theory as incompatible with the basic principles of antitrust. The ultimate danger of monopoly power is that prices will be too high, not too low. A rule of predation based on the failure to maximize profits would rob consumers of the benefits of any price reductions by dominant firms facing new competition.*fn43 Such a rule would tend to freeze the prices of dominant firms at their monopoly levels and would prevent many pro-competitive price cuts beneficial to consumers and other purchasers. In addition a "profit maximization" rule would require extensive knowledge of demand characteristics -- thus adding to its complexity and uncertainty. Another, and related, effect of adopting the "profit maximization" theory advocated by MCI would be to thrust the courts into the unseemly role of monitoring industrial prices to detect, on a long term basis, an elusive absence of "profit maximization." Such supervision is incompatible with the functioning of private markets. It is in the interests of competition to permit dominant firms to engage in vigorous competition, including price competition. See Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 273 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061 (1980). We therefore reject MCI's "profit maximization" theory, and reaffirm this Circuit's holding that liability for predatory pricing must be based upon proof of pricing below cost. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980).

C. Defining Measures of Cost

The first commentators to propose a specific cost-based standard for predatory pricing were Professors Areeda and Turner, who argued that pricing below a firm's short-run marginal cost should be deemed unlawful, and that prices above that level should be deemed lawful. Areeda & Turner, Predatory Pricing at 709-13. See also 3 P. Areeda & D. Turner, supra, at P711-15. In economic terms, short-run marginal cost represents the increment to total cost that results from producing an additional unit of output, where some inputs of production are variable and others are fixed. 3 P. Areeda & D. Turner, supra, at P712 at 155. Because short-run marginal cost is an economic concept that cannot be derived by conventional accounting methods, Areeda and Turner advocate the use of "average variable cost" ("AVC") as a proxy in predatory pricing cases. Variable costs, as the name implies, are costs that vary with changes in output. They typically include such items as materials, fuel, maintenance, and labor directly used to produce the product. Id. A product's average variable cost is the sum of all its variable costs divided by the number of units of output.

The Areeda-Turner rule has engendered much discussion about whether short-run marginal (or, its proxy, average variable) cost represents the proper cost standard for evaluating predatory pricing claims.*fn44 Much of the economic literature, as well as the case law, has examined whether average variable cost or some measure of average total cost (which includes "fixed" as well as variable costs) represents the better cost standard for measuring predatory pricing.

It is unfortunate that in the course of trial the case before us was characterized as a contest between the supporters and opponents of the Areeda-Turner rule. At trial long-run incremental cost was incorrectly equated with average variable cost while fully distributed cost was incorrectly equated with average total cost. In fact, the validity of the Areeda-Turner rule, based on short-run marginal costs, is not at issue in this case because neither party ever argued for a short-run cost standard. Rather, AT&T introduced evidence, unrefuted by MCI, showing that its prices for both Telpak and Hi-Lo were above those services' long-run incremental costs.

There are important economic differences between long-run incremental cost and short-run marginal cost. First, incremental costs (LRIC) represent the average cost of adding an entire new service or product rather than merely the last unit of production. Professor Alfred Kahn has highlighted this distinction by stating:

Marginal cost, strictly speaking, refers to the additional cost of supplying a single, infinitesimally small additional unit, while "incremental" . . . refer[s] to the average additional cost of a finite and possibly a large change in production or sales.

1 A. Kahn, The Economics of Regulation 66 (1970) (emphasis in original).

Second, and more important, long-run incremental cost differs from average variable cost in that it is a long-run rather than a short-run cost measure. Because variable costs, by definition, are associated with the limited time period in which a firm cannot replace or increase its plant or equipment, the cost of plant and equipment is regarded as fixed and is not included in the calculation of a product's short-run marginal, or average variable, cost. Long-run incremental cost, by contrast, measures all the costs of adding a new product or service -- "fixed" as well as variable costs (and "capital" as well as "operating" items).*fn45 Essentially, the LRIC approach assumes that all costs become variable in the long run. Hence, a number of the criticisms that have been leveled against the choice of a short-run marginal cost standard are not applicable to the use of long-run incremental cost. The use of long-run cost analysis may be particularly appropriate to capital-intensive processes where growth of plant and equipment is marked.

In addition to incorrectly equating long-run incremental cost with short-run marginal (or average variable) cost, the district court (without adequate guidance from the parties) incorrectly equated fully distributed cost ("FDC") with average total cost. Both these notions are incorrect because LRIC and FDC can be viewed as simply different ways of defining the average total cost ("ATC") of a particular product or service for a firm that produces multiple products or services.*fn46

For a single product firm, average total cost can be easily defined as the sum of all costs, both fixed and variable, divided by the total units of output produced by the firm. Such simple concepts of average total cost, however, lose their meaning when one considers a multi-service firm such as AT&T. Joint and non-joint common costs shared among products of the same firm render it impossible to calculate ATC simply by adding up costs and dividing by the number of units of output. This is possible only in a firm which produces a single product. One cannot proceed in this fashion for multiproduct firms because the total number of units produced include many different products each with different costs and different price and sales data. It is therefore necessary, in the multiproduct context, to determine what costs are caused by which products and services, and this requires some sort of differential (e.g., incremental) methodology.

In an antitrust context, fully distributed cost is not an economically relevant definition of average total cost and must be rejected as determinative.*fn47 First, FDC is a quite arbitrary allocation of costs among different classes of service. There are countless FDC methods, each allocating costs by a different mathematical formula.*fn48 Despite trenchant criticism on economic grounds,*fn49 FDC continues to be widely used for regulatory purposes, inter alia, because of its ease of application in dividing an authorized total revenue requirement among individual products or services -- much as a pie is divided into slices. But FDC cannot purport to identify those costs which are caused by a product or service, and this is fundamental to economic cost determination.

FDC also fails as an economically relevant measure of cost for antitrust purposes because it relies on historical or embedded costs. For it is current and anticipated cost, rather than historical cost that is relevant to business decisions to enter markets and price products. The business manager makes a decision to enter a new market by comparing anticipated additional revenues (at a particular price) with anticipated additional costs. If the expected revenues cover all the costs caused by the new product, then a rational business manager has sound business reasons to enter the new market. The historical costs associated with the plant already in place are essentially irrelevant to this decision since those costs are "sunk" and unavoidable and are unaffected by the new production decision. This factor may be particularly significant in industries such as telecommunications which depend heavily on technological innovation, and in which a firm's accounting, or sunk, costs may have little relation to current pricing decisions.*fn50

In particular, FDC fails as a relevant measure of cost in a competitive market. FDC is, at best, a rough indicator of an appropriate rate ceiling for regulatory purposes and should not be used as a measure of the minimum price permissible in a competitive market. The justifiable fear of monopoly, and the basis of section 2 of the Sherman Act, is that a firm enjoying monopoly power will not be constrained by market forces; it will raise prices and decrease output in such a manner that its own profit will be maximized but that consumers will be subject to higher prices and a less efficient allocation of resources than would be the case in a competitive market. A standard making predatory pricing illegal and subject to treble damages must be carefully structured to fit the needs of the Sherman Act and its encouragement of competition on the merits. See Janich Bros. v. American Distilling Co., 570 F.2d 848, 855 (9th Cir. 1977), cert. denied, 439 U.S. 829, 58 L. Ed. 2d 122, 99 S. Ct. 103 (1978). When a price floor is set substantially above marginal or incremental cost a price "umbrella" is created which allows less efficient rivals to remain in the market sheltered from full price competition. A fully distributed price floor may thus misallocate resources and force consumers to pay more for less production than competition would dictate.

The economic literature that has considered the problem of predatory pricing has rejected almost entirely the notion that fully distributed costs are a relevant measure of ATC.*fn51 To the contrary, long-run incremental cost has been approved as an economically relevant measure of average total cost for one product produced by a multiproduct firm. Professor Baumol has stated in reply to the sloppy use of the term " average total cost":

By average total cost, [one] surely does not mean fully allocated cost, which is a mare's nest of arbitrary calculations parading as substantive information . . . . Consequently, I assume that when [one] requires the price of a good in the long-run to exceed its "average total cost," [one] defines the latter to mean the average incremental cost of the product including any fixed cost outlays required by the item.

Baumol, Quasi-Permanence of Price Reductions: A Policy for Prevention of Predatory Pricing, 89 Yale L.J. 1, 9 n.26 (1979). Professors Joskow and Klevorick agree with this critique of fully distributed cost as a measure of average total cost:

For a single-product firm, average total cost is easily defined. In the more likely multiproduct context, we are using "average total cost" to signify the average incremental cost of the commodity of concern and not any arbitrary "fully allocated cost measure."

Joskow & Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89 Yale L.J. 213, 252 n.79 (1979). Since all costs are variable in the long run it is long-run incremental costs (including return on investment) which most closely measure anticipated average total cost. 3 P. Areeda & D. Turner, supra, at P712 at 156. Cf. R. Posner, supra, at 190.*fn52

A simplified example of some of these cost relationships can be found in Judge Wilkey's dissenting opinion in Aeronautical Radio, Inc. v. FCC, 206 U.S. App. D.C. 253, 642 F.2d 1221, 1236 (D.C. Cir. 1980), cert. denied, 451 U.S. 920, 68 L. Ed. 2d 311, 101 S. Ct. 1998 (1981) (Wilkey, J., dissenting).*fn53 In Judge Wilkey's example, a judge accepts an invitation to participate in a law school moot court, with the school paying for his hotel room costing $125 per night. He later decides to bring his wife along even though the school's moot court representative cannot assure him that his wife's expenses will also be paid. Judge and Mrs. X attend the moot court, and their hotel bill for two is $150 per night. Upon his return, Judge X sends the moot court board his itemized expenses, noting that if the board has decided to pay for his wife's trip, he should be reimbursed at $150 a day; if not, he should receive $125 a day, the amount it would have cost him had he attended the moot court alone. The moot court board sends back a check for $75, noting that it is unable to absorb the expenses of Mrs. X, and explaining that, using a fully distributed cost methodology, it has allocated one half of the couple's daily $150 hotel bill to Judge X and the other half to his wife. Judge X is understandably both annoyed and confused; he knows that if he had attended the moot court alone, he would have been reimbursed at $125 a day, because this is what his actual hotel charge would have been, and because the moot court board's original invitation had been extended on this basis. Judge X is also angry because, had he known that the moot court board was going to penalize him in this manner, he would not have asked Mrs. X to accompany him, but would have come by himself at the agreed all-expenses paid rate of $125 a day. Thus, both practical considerations and economic theory dictate that the relevant cost of Mrs. X's stay is $25 and that a marginal cost methodology should be used to analyze the judge's travel expenses and other real world problems.*fn54

D. The Proper Cost Standard

This case, insofar as predatory pricing is concerned, is truly one of first impression for this circuit. The case law in this and most other circuits has thus far largely addressed the merits of short-run marginal cost (or its proxy, average variable cost) as compared with average total cost; the cases have not discussed the choice between long-run incremental cost and fully distributed cost as a way to measure average total cost. See, e.g., Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980); Borden, Inc. v. FTC, 674 F.2d 498, 515 (6th Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3271 (U.S. Aug. 25, 1982) (No. 82-328); O. Hommel Co. v. Ferro Corp., 659 F.2d 340 (3d Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1711, 72 L. Ed. 2d 134 (1982); Americana Industries v. Wometco de Puerto Rico, Inc., 556 F.2d 625 (1st Cir. 1977); International Air Industries v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411 (1976). Cf. Northeastern Telephone Co. v. AT&T, 651 F.2d 76, 89-90 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982) (rejecting use of fully distributed cost standard). The Supreme Court has not spoken on the entire issue of predatory pricing except to note a firm's below cost pricing in a price discrimination case. Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 698-99, 18 L. Ed. 2d 406, 87 S. Ct. 1326 (1967).

Recently, several courts have questioned whether short-run marginal cost should be the exclusive standard for predatory pricing and have expressed a willingness to consider other factors. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 (9th Cir. 1981), cert. denied, 459 U.S. 825, 103 S. Ct. 58, 74 L. Ed. 2d 61, 103 S. Ct. 57 (1982); International Air Industries v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411 (1976); see generally Note, Predatory Pricing: The Retreat from the AVC Rule and the Search for a Practical Alternative, 22 B.C.L. Rev. 467 (1981) (hereinafter cited as Note, Retreat from AVC). Exclusive reliance on AVC (a proxy for short-run marginal cost) has been criticized primarily on the grounds that it focuses on short-run rather than long-run price cost comparisons, a criticism which, as noted earlier, is not fairly applicable to LRIC. See Note, Retreat from AVC at 484-85, 489-94.

This court in Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980), affirmed the use of an incremental cost methodology as the starting point for predatory pricing analysis. In that case, the Areeda-Turner standard based upon short-run marginal cost was cited as "both a relevant and an extremely useful factor" in identifying predatory conduct. 615 F.2d at 432. We are now required to move away from the Areeda-Turner rule because we are faced with a choice between two different cost standards -- LRIC or FDC -- each of which may be argued to measure average total cost. If average total cost is the objective (and the principle of cost causation is to be honored), we think that LRIC is and FDC is not an appropriate method of getting at it.*fn55 We, of course, do not close the door on such other methods -- as yet undeveloped and undisclosed -- as may be firmly based on the relation of cause and effect between the product or service involved and the costs it produces.

It is not surprising that no court has ever adopted fully distributed cost as the appropriate cost standard in a predatory pricing case. Most recently, the Second Circuit rejected fully distributed cost and adopted marginal cost as the test for predation in a case involving AT&T. In Northeastern Telephone Co. v. AT&T, 651 F.2d 76 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982), the court considered allegations that a Bell System affiliate had engaged in predatory pricing in the equipment market. The Second Circuit, in reversing the portion of the judgment relating to predatory pricing, stated:

Adopting marginal costs as the proper test of predatory pricing is consistent with the pro-competitive thrust of the Sherman Act. When the price of a dominant firm's product equals the product's marginal costs, "only less efficient firms will suffer larger losses per unit of output; more efficient firms will be losing less or even operating profitably." . . . Marginal cost pricing thus fosters competition on the basis of relative efficiency. Establishing a pricing floor above marginal cost would encourage underutilization of productive resources and would provide a price "umbrella" under which less efficient firms could hide from the stresses and storms of competition.

Id. at 87 (citation omitted).

The Second Circuit explicitly rejected the trial court's reasoning that because AT&T was a multiservice regulated utility the use of fully distributed cost was appropriate. Id. at 89-90. The Second Circuit reiterated its conclusion that maintaining a price floor above marginal cost provided a haven for inefficient competitors. It then detailed the perverse effects of FDC pricing on consumer welfare and the competitive process itself. Finally, the court examined and rejected the argument that FDC was required to prevent cross-subsidization, explaining that if prices were above marginal cost no subsidies could exist and in fact contributions would be made to the overhead of the other Bell services. Id. at 90. See also Southern Pacific Communications Co. v. AT&T, 556 F. Supp. 825 (D.D.C. 1982).

The Eighth Circuit has also rejected the use of fully allocated costs, although in a less definitive manner than the Second Circuit. In Superturf, Inc. v. Monsanto Co., 660 F.2d 1275 (8th Cir. 1981), the court held that pricing below fully allocated cost but above average variable cost was not predatory, particularly in the absence of predatory intent or other conduct sufficient to render the pricing unreasonable.

Nor has FDC gained any adherents among district courts in the Sixth Circuit, which has not decided the validity of the Areeda-Turner short-run marginal cost approach. See Borden, Inc. v. FTC, 674 F.2d at 515 (affirming violation of section 5 of the FTC Act where monopolist had engaged in selective price cutting and promotional allowances in competitive markets only); cf. Brodley and Hay, Predatory Pricing at 780-86. In Hillside Dairy Co. v. Fairmont Foods Co., 1980-2 Trade Cas. P63,313 (N.D. Ohio 1980), the Northern District of Ohio considered a meeting competition defense to a price discrimination charge where the facts indicated that the defendant had inadvertently beaten rather than met its competitor's dairy prices. The court held that such a defense would still prevail if the defendant had made substantial efforts to verify the actual price offered by its competitor, and did not operate at a loss in supplying the product. Id. at p. 75,625. The court, in holding for the defendant, explicitly chose average variable cost over fully allocated cost as the proper standard. Id. at p. 75,626.

The other circuits have been virtually unanimous in their endorsement of a marginal cost standard for predatory pricing. The Third Circuit stated recently in O. Hommel Co. v. Ferro Corp., 659 F.2d 340 (3d Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1711, 72 L. Ed. 2d 134 (1982), that although the record before it obviated the need to choose explicitly among competing economic theories of predation, it was "inclined to accept the basic premise of the Areeda and Turner thesis that predatory intent may not be inferred from sales at or above average variable cost." 659 F.2d at 352.*fn56 Similarly, in International Air Industries v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411 (1976), the Fifth Circuit held that, except where barriers to entry are "extremely high," a plaintiff claiming predatory pricing must show that the defendant "is charging a price below his average variable cost in the competitive market." 517 F.2d at 724 & n.31.*fn57 The First, Tenth and District of Columbia Circuits have also expressed their approval of the Areeda-Turner marginal cost test. See Americana Industries v. Wometco de Puerto Rico, Inc., 556 F.2d at 628; Pacific Engineering & Production Co. v. Kerr-McGee Corp., 551 F.2d 790, 797 (10th Cir.), cert. denied, 434 U.S. 879, 54 L. Ed. 2d 160, 98 S. Ct. 234 (1977); AT&T v. FCC, 602 F.2d 401, 410 n.49 (D.C. Cir. 1979); National Association of Regulatory Utility Commissioners v. FCC, 173 U.S. App. D.C. 413, 525 F.2d 630, 638 n.34 (D.C. Cir.), cert. denied, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976); Southern Pacific Communications Co. v. AT&T, 556 F. Supp. 825 (D.D.C. 1982).

Only one circuit has ever permitted a jury to hear evidence of predation based on pricing above average variable but below average total cost. In William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 (9th Cir. 1981), cert. denied, 459 U.S. 825, 103 S. Ct. 58, 74 L. Ed. 2d 61, 103 S. Ct. 57 (1982), the Ninth Circuit held that it was permissible for a jury to find predation based on evidence that demonstrated pricing above average variable cost, if accompanied by intent. In Inglis the trial court had entered judgment n.o.v. for the defendant as a result of plaintiff's failure to introduce evidence that prices were below marginal costs. Id. at 1026.

The Ninth Circuit reversed, noting its reluctance to adopt the Areeda-Turner rule as the exclusive test for predatory pricing. Id. at 1032. In place of Areeda-Turner, the court stated a new rule:

We hold that to establish predatory pricing a plaintiff must prove that the anticipated benefits of defendant's price depended on its tendency to discipline or eliminate competition and thereby enhance the firm's long-term ability to reap the benefits of monopoly power. If the defendant's prices were below average total cost but above average variable cost, the plaintiff bears the burden of showing defendant's pricing was predatory. If, however, the plaintiff proves that the defendant's prices were below average variable cost, the plaintiff has established a prima facie case of predatory pricing and the burden shifts to the defendant to prove that the prices were justified without regard to any anticipated destructive effect they might have on competitors.

Id. at 1035-36. See also D & S Redi-Mix v. Sierra Redi-Mix and Contracting Co., 692 F.2d 1245 (9th Cir. 1982).

Nothing in this statement supports the use of fully distributed cost in a predatory pricing case. The Ninth Circuit established a rule which allows a jury to hear evidence of pricing between ATC and AVC without any reference to FDC at all. The court in Inglis defined average total cost as the "portion of the firm's total cost -- both fixed and variable -- attributable on an average basis to each unit of output." Id. at 1035 n.30. This definition is consistent with the use of long-run incremental cost as a measure of ATC, as advocated by Professors Baumol, Joskow and Klevorick; it does not support the use of non-economic cost measures such as FDC. Moreover, the Inglis rule must be read narrowly to avoid conflict with prior Ninth Circuit decisions endorsing a marginal cost standard and with the specific reason given by the Ninth Circuit in Inglis for reversing the district court. See id. at 1032-33, 1036.

It is important to understand that the "average total cost," to which some courts and commentators refer, should not be equated with FDC; it is, when properly understood, best measured in the multiproduct context by average long-run incremental cost. Essentially, this is the case because LRIC, unlike FDC, only measures costs which are causally related to the service or product in question.*fn58

This is not an economist's quibble or a theoretical musing; it is a matter of principled analysis and practical reality in the market place. Pricing at or above long-run incremental cost in a competitive market is a rational and profitable business practice. Because there are legitimate, and in fact compelling, business reasons for pricing products at or above their long-run incremental cost, no predatory intent should be presumed or inferred from such conduct.*fn59

E. Cross-subsidization

MCI makes one final argument to support the use of fully distributed cost. MCI argues at considerable length that an FDC methodology is required to prevent AT&T from subsidizing its competitive services with revenues derived from services in which it retains a monopoly. MCI claims that such " cross-subsidization" injures AT&T's competitors as well as AT&T's local monopoly customers, who must pay higher rates in order to "subsidize" the company's less profitable private line services. Nowhere does MCI define precisely what it means by a "cross-subsidy," although it presented evidence at trial that different AT&T services earned differing rates of return. In particular, MCI noted that AT&T's Telpak and other private line long distance services, although showing a positive rate of return, earned on an allocated rate base a lower rate of return than did certain other AT&T long distance services.

Such differing rates of return, however, even if correctly and meaningfully derived, do not support the imposition of antitrust liability. The fact that different services may earn different rates of return largely reflects the realities of a competitive market.*fn60 Where a firm faces competition, demand is more elastic -- that is, more sensitive to changes in prices -- because of the presence of other firms producing substitute products to which buyers may turn. Lower returns on investment are to be expected in competitive markets because each firm, in accordance with classical competitive theory and practice, will be forced to lower prices toward marginal costs in order to maintain its market share.

MCI's argument presumes that customers of monopoly services will have to pay higher prices if AT&T prices below FDC in markets where competition is present. See In Re American Telephone & Telegraph Co., 61 F.C.C. 2d 587, 624, 652 (1976). Such arguments ignore the nature of costs and revenues in a multi-service enterprise. AT&T's unattributable overhead costs do not increase when AT&T offers a new service, nor do they decrease when such a service is discontinued. When a multiproduct firm prices a competitive service above its long-run incremental cost, no cross-subsidy can occur because the additional revenues produced exceed all additional costs associated with the competitive service and provide a contribution to the unallocable common costs otherwise borne by the firm's existing customers. For this very reason the Second Circuit in Northeastern Telephone Co. v. AT&T rejected a cross-subsidization argument identical to that advanced by MCI here:

[The plaintiff's] argument in favor of the fully distributed cost test is based on a misunderstanding of the economic notion of subsidization. [The plaintiff] seems to believe that whenever a product's price fails to cover fully distributed costs, the enterprise must subsidize that product's revenues with revenues earned elsewhere. But when the price of an item exceeds the costs directly attributable to its production, that is, when price exceeds marginal or average variable cost, no subsidy is necessary. On the contrary, any surplus can be used to defray the firm's non-allocable expenses.

651 F.2d 76, 90 (2d Cir. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1438, 71 L. Ed. 2d 654 (1982). See also Southern Pacific Communications Co. v. AT&T, 556 F. Supp. 825 (D.D.C. 1982).

Judge Wilkey of the District of Columbia Circuit amplified this point in his dissent in Aeronautical Radio, Inc. v. FCC, 206 U.S. App. D.C. 253, 642 F.2d 1221, 1240 (D.C. Cir. 1980), cert. denied, 451 U.S. 920, 68 L. Ed. 2d 311, 101 S. Ct. 1998 (1981):

AT&T's common or joint unattributable costs will exist whether or not it offers services in the competitive market. These costs existed and were borne by AT&T's monopoly service customers before AT&T entered the competitive market, and would again be borne fully by them if AT&T were forced out of the competitive market.

When AT&T considers whether to enter or to expand sales in a competitive market the old monopoly service customers stand to benefit so long as the new customers bear any part of the common or joint costs. To determine whether monopoly customers will benefit from the firm's operations in the competitive market, one need only calculate whether the revenues from the new competitive market operations pay fully for the incremental or additional costs the firm incurs for these operations. If revenues cover these costs (including cost of capital as measured by LRIC or any similar variant of marginal cost measurement) then ANY additional revenue earned above the LRIC level is a bonus for the monopoly customers.

642 F.2d at 1240 (Wilkey, J., dissenting). See also 2 P. Areeda & D. Turner, supra, at P719; 1 A. Kahn, supra, at 150-58.

If AT&T were forced to price at FDC levels in competitive markets, its monopoly customers would probably be worse rather than better off. Because of the elasticity of demand in competitive markets, any rate substantially above LRIC would cause AT&T to lose business against an equally efficient competitor and, hence, decrease AT&T's total revenue from competitive markets. There would thus be less revenue available from competitive services to contribute to the firm's joint or common costs, and monopoly customers would be required to provide a greater share of these costs.*fn61

For a regulated utility such as AT&T, fully distributed cost methodology may be used to establish a regulatory rate ceiling, in order to provide no more than a "fair rate of return" for the enterprise as a whole. If FDC is adopted as a floor for predatory pricing purposes, as well as a ceiling for ratemaking purposes, the regulated utility will be effectively prohibited from materially raising or lowering prices to engage in competition. This result flies in the face of a major objective of the antitrust laws -- the promotion of price competition. It is also inconsistent with the FCC's explicit endorsement of price competition in its Specialized Common Carriers decision. An antitrust rule requiring a dominant firm to price at or above FDC in competitive markets may effectively require the firm to forego price competition and gradually abandon its market share, i.e., lose its business. Constraining AT&T to FDC pricing of its competitive services thus runs the risk of permitting actually or potentially less efficient competitors to serve a growing segment of the telecommunications market and thus deprive consumers of the benefits of price competition.*fn62

F. Insufficiency of the Evidence

In addition to reliance on an incorrect cost standard, the jury's finding that Hi-Lo was predatory is disapproved and must be set aside because MCI failed to produce sufficient evidence to create a jury question that Hi-Lo was priced below cost under any standard. The testimony of Dr. William Melody, a regulatory economist, accompanied by certain documents, constitutes the only evidence MCI presented on the issue of predatory pricing. Dr. Melody testified twice, first in the latter part of February 1980 and again on June 3 and 4, 1980. On neither occasion did his testimony produce evidence sufficient to sustain a jury verdict that Hi-Lo was priced below cost under any standard.

Testifying the first time, Dr. Melody presented no evidence whatsoever that Hi-Lo was priced below any measure of cost. Dr. Melody introduced a chart, Plaintiff's Exhibit 933, which purported to prove that Telpak was predatory by comparing its price with the costs associated with Hi-Lo service. Dr. Melody argued that the costs attributable to both services were identical because each service was simply a different marketing plan for the same private lines. This chart shows the cost of the Hi Density (Hi-D) circuits to be $. 65 per circuit mile. Thus, MCI's own proof on this issue establishes that AT&T's Hi-D circuits,*fn63 which were sold for $.85 per circuit mile, were priced $.20 above even their fully distributed costs.

This admission was reinforced on cross-examination in an exchange between counsel for AT&T and Dr. Melody:

Q: Now turning back to Hi-Lo, you are not contending, are you, that the high density portion of the Hi-Lo tariff is below cost by any measure?

A: I have not contended that the high density rate is below cost. I have not assessed the high density rate in terms of costs.

Tr. 2593. Despite expressing misgiving about the costs reflected in PX 933, Dr. Melody repeatedly adopted these costs, including the $.65 figure, as the best evidence available. Tr. 2576, 10481. Dr. Melody also stated that, in examining Bell's cost data, he was unable to make the adjustments necessary to demonstrate that Hi-D costs were any greater than $.65. Tr. 2594.

On rebuttal, Dr. Melody purported, for the first time, to suggest that Hi-D was below cost. MCI introduced PX 3915, reproduced below, which is a table computed by Dr. Melody showing various alleged revenue deficiencies for AT&T's entire private line telephone service.

AT&T PRIVATE LINE TELEPHONE SERVICE

(IN $MILLIONS)

1971 1972 1973 1974 1975

REVENUE NECESSARY $109 $120 $153 $164 $172

TO COVER AT&T'S

COST OF CAPITAL

REVENUE AVAILABLE $37 $47 $65 $68 $73

DEFICIENCY OF REVENUE ($72) ($73) ($88) ($96) ($99)

BELOW COST

Dr. Melody explained the preparation of his chart as follows:

On the basis of Mr. Johnson's [sic] [an AT&T witness] study, what I did was I examined every revenue that would be available after deducting all of the normal operating expenses of business. . . .

What I did was I calculated the revenue that would be available for paying the cost of capital on the basis of Mr. Johnson's [sic] studies. . . .

I then calculated the revenue that would be necessary to cover AT&T's cost of capital as earned by the business as a whole. That is indicated by the first row. The revenues that would be necessary if private line telephone service were to provide sufficient revenue to pay the cost of capital.

I then subtracted the revenue necessary from the revenue available and was able to calculate the deficiency of revenue below costs for private line telephone service.

Tr. 10474-76.

Neither Dr. Melody's testimony nor his private line telephone chart reflect the sort of analysis and presentation necessary to support a claim of predatory pricing. The summary nature of Dr. Melody's chart would make it very difficult for the jury to determine the basis of his calculations. Dr. Melody purports to be making adjustments to a series of fully distributed cost exhibits introduced by AT&T. Each of these exhibits consisted of voluminous cost studies (using several different methods of cost distribution), or summaries of such studies, which on their face stated that private line telephone service and Telpak earned positive rates of return*fn64 under each FDC method used in the studies. Dr. Melody provides us with no calculation (or even specification) of AT&T's overall cost of capital (including, presumably, embedded cost of debt), which establishes a deficiency in contribution by private line telephone to that cost.*fn65

Thus, Dr. Melody's testimony is deficient as to the reasons why he selected one of the FCC's at least seven cost methods or how he may have adjusted AT&T's cost studies to produce the revenue deficiencies derived on his chart. Dr. Melody does not state what percentage he used to calculate AT&T's cost of capital rate, nor what plant items he attributed to private line services for purposes of calculating these capital costs. Similarly, there is no definition or description of AT&T's "normal operating expenses of business." Thus, we do not know if, or how, Dr. Melody allocated capital costs and normal operating expenses.*fn66 More importantly, Dr. Melody's chart fails to isolate Hi-D circuits or even Hi-Lo service as a whole; instead it calculates alleged revenue deficiencies for AT&T's entire private line sector. As Dr. Melody acknowledged, this sector includes many services besides Hi-D, as well as several types of switching equipment.*fn67

Dr. Melody's chart, together with his testimony, is therefore an insufficient basis for a jury verdict that the Hi-D portion of the Hi-Lo rate is "below cost." We assume that Dr. Melody's testimony was designed to demonstrate that, during the years in question, under some FDC method (presumably Method 1, see supra, note 65), "private line telephone" was returning less than AT&T's overall cost of capital. Whatever the merits of such a demonstration as a measure of predation, see supra, text and note at note 47, we think the attempted demonstration is defective for lack of specificity and explanation of key elements and because "private line telephone" is inadequately related to the high density portion of the Hi-Lo rate.*fn68 This evidence falls below the legal standard of proof necessary to support a finding of predatory pricing. Indeed, the Second Circuit recently rejected summary evidence of this sort in a predatory pricing case. In Broadway Delivery Corp. v. United Parcel Service of America, 651 F.2d 122 (2d Cir.), cert. denied, 454 U.S. 968, 70 L. Ed. 2d 384, 102 S. Ct. 512 (1981), plaintiffs had attempted to demonstrate predation using only lump summaries of defendants' costs, revenues, and profits, which purported to show below-cost operations. The district court granted defendants' motion to dismiss, after a jury trial. The Second Circuit affirmed the dismissal, noting that plaintiffs had offered no explanation of how they had adjusted the defendants' cost figures to show below-cost pricing:

Whether or not one agrees that proof of pricing below marginal or average variable cost is essential to a predatory pricing claim, the plaintiffs could not demonstrate price predation by the defendants without proof permitting a careful assessment of the relationship between the defendants' prices and costs. . . . The plaintiffs' proof did not permit a reasonable fact-finder to make this assessment. The summaries of [one defendant's] operations lump all its traffic figures in one category, all its revenues in another, and all its profits in a third. It may be that an expert in cost accounting could have discerned in these gross figures a basis for the required analysis, but the plaintiffs presented no such testimony.

651 F.2d at 131 (citations omitted). See Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980) (affirming district court's grant of directed verdict on ground that plaintiff's cost data and other evidence failed to present a prima facie case of predation).

Because MCI's evidence is similarly inadequate to establish that Hi-Lo was priced below cost under any standard, the jury's finding that AT&T engaged in predatory pricing of its Hi-Lo private line services cannot be sustained.

G. Pre-announcement

Our conclusion that Hi-Lo was not shown to be predatory largely dictates our disapproval of the jury's finding that AT&T unlawfully pre-announced its Hi-Lo service. MCI argued that, if Hi-Lo was in fact predatory, AT&T would incur major losses in cutting its rates to stifle competition. At least part of these losses would result from AT&T customers shifting from more remunerative services such as WATS to private line. According to MCI, AT&T could maintain its monopoly without actually incurring any losses by simply announcing the proposed Hi-Lo tariff and then delaying its implementation for a significantly long period of time -- thus discouraging AT&T customers from switching to MCI's more economical services during the fifteen month period between Hi-Lo's pre-announcement and its effective date. Insofar as this claim is predicated upon the alleged predatory nature of the announced Hi-Lo price, the jury verdict on this count is disapproved and must be set aside.

MCI also claims that by pre-announcing Hi-Lo, AT&T knowingly misled the public into believing that the new tariff would be implemented without "undue delay," when, in fact, AT&T's actions significantly contributed to the fifteen month lag period between Hi-Lo's announcement and effective date. How to determine whether and under what circumstances the pre-announcement of a lawful price might constitute an act of monopolization is an extremely delicate task. Unnecessarily restrictive rules are likely to inhibit the flow of valuable information to the market; they also risk infringing upon protected commercial speech and First Amendment rights. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-97, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975). In commenting on liability for pre-announcement, Professors Areeda and Turner have stated that while a "knowingly false statement designed to deceive buyers" could qualify as an exclusionary practice,

no liability should attach to statements that truly reflect the monopolist's expectations about future quality or availability where that expectation is both actually held in good faith and objectively reasonable. Such reasonable good faith statements about research, development, and forthcoming production serve the social interest in maximizing the relevant information available to buyers.

3 P. Areeda & D. Turner, supra, at P738 p. 284.

Such a standard comports with the policies of the antitrust laws and with existing case law. In Americana Industries v. Wometco de Puerto Rico, Inc., 556 F.2d 625 (1st Cir. 1977), the plaintiffs alleged that the defendant movie theaters had advertised in advance prices for the film "Godfather II" which maliciously undercut Americana. Plaintiffs also alleged that the pre-announcement was done with the intent of putting Americana out of business. The court held that, absent allegations of pricing below marginal cost, the announcement represented the sort of healthy competition which the antitrust laws were designed to foster. 556 F.2d at 628. The court stated:

[The defendant] was not obliged to follow Americana's prices, nor to hide the fact that it would, in three months time, show the same film in another city for less. Americana's complaint not only alleges facts that are completely consistent with perfectly lawful conduct, but falls short of alleging facts that, by themselves, constitute an antitrust violation.

Id.

It is certainly not unusual for competitors to announce a new product, service or price before its actual introduction in the market. The courts have upheld such "pre-announcements" in a variety of factual contexts. In Ronson Patents Corp. v. Sparklets Devices, 112 F. Supp. 676 (E.D. Mo. 1953), the court considered an antitrust counterclaim to a patent infringement suit where the plaintiff was charged with advertising its new butane lighter in advance of even obtaining a patent. 112 F. Supp. at 688-89. The court declined to find liability even though the actual lighter advertised never appeared on the market. The court refused to infer predatory intent given the use of such an announcement to test demand in the market and production problems which subsequently led the company to decide not to put the product on the market. Id.

Similarly, in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 287-88 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061 (1980), the Second Circuit held that, absent actual deception, a monopolist's vigorous and even one-sided advertising of a new product or service does not constitute anticompetitive conduct violative of the Sherman Act. See also ILC Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp. 423, 442 (N.D. Cal. 1978), aff'd per curiam sub nom. Memorex Corp. v. IBM Corp., 636 F.2d 1188 (9th Cir. 1980), cert. denied, 452 U.S. 972, 69 L. Ed. 2d 983, 101 S. Ct. 3126 (1981) (defendant's premature announcement of new product not actionable absent evidence of knowing falsehood); Solargen Electric Motor Car Corp. v. American Motors Corp., 530 F. Supp. 22, 26 n.3 (S.D.N.Y. 1981), aff'd, 697 F.2d 297 (2d Cir. 1982) (competitor's allegations that dominant car company "knowingly exaggerated" success of its experimental battery do not support antitrust liability).

These cases suggest that AT&T's early announcement of Hi-Lo must be found to be knowingly false or misleading before it can amount to an exclusionary practice.*fn69 Applying this standard here, the issue of pre-announcement should never have been sent to the jury. Neither AT&T's application to the FCC for permission to file the Hi-Lo rate, nor the accompanying press release contains any false or misleading information about Hi-Lo or its availability. MCI claims that AT&T's statement in its FCC application that the Hi-Lo tariff "should be made effective without undue delay" is inconsistent with contemporaneous internal AT&T memoranda suggesting that AT&T had originally planned a voluntary extension of the effective date of the tariff until May 1974.*fn70 We, however, see no deliberate deception or misleading conduct here.*fn71

At the time AT&T first sought permission to file its Hi-Lo tariff, in February 1973, it could not simply file the tariff and automatically set the regulatory review in motion. Rather, because of an FCC "special permission" rule in effect at the time, AT&T was required to obtain FCC approval before it could file any new tariff. Thus, as of February 1973, AT&T was not permitted to file or effectuate its new tariff. It was not until October 1973, when, at the behest of AT&T, the Second Circuit invalidated the "special permission" rule, that AT&T was free to file its Hi-Lo tariff. See AT&T v. FCC, 487 F.2d 865 (2d Cir. 1973).

AT&T actually filed its Hi-Lo tariff on November 15, 1973, and the tariff became effective on June 15, 1974. Once the tariff was filed, the provisions of Sections 203 and 204 of the Communications Act accounted for much of the remaining delay. This delay included the two-month notice period prescribed by FCC regulations and a three-month suspension of the tariff ordered by the FCC. Hence, the only delay that MCI can fairly attribute to AT&T is AT&T's voluntary extension of the tariff for a period of about two months at the request of the FCC chairman. We believe that this rather minimal delay, considered in conjunction with the absence of deception or knowing falsehood in AT&T's filings and public statements regarding Hi-Lo, is insufficient to create a jury question on the issue of unlawful preannouncement.*fn72 We therefore hold that the trial court erred in failing to direct a verdict on this count in favor of AT&T.

H. Telpak Marketing Plan

MCI in its cross-appeal contends that even if Telpak was lawfully priced the jury should have been instructed to consider whether AT&T maintained its monopoly by marketing its Telpak service in a way that excluded competition. MCI alleges that two aspects of the Telpak marketing scheme were anticompetitive: the so-called "free" circuits and "fictional" routing.

MCI first argues that Telpak customers had free spare circuits available from AT&T because AT&T only offered Telpak in bundles of 60 or 240 circuits. Because AT&T's rates were quite low, this encouraged customers to order a bundle of Telpak circuits, even if the customer did not need all the circuits immediately. MCI argues that the remaining unused circuits of the Telpak bundle were "free spares" that could be used later at no additional charge, thus discouraging customers from purchasing MCI services.

This argument has no factual or legal merit. The unused capacity was in no sense free. Telpak customers had already paid for all their circuits in advance. The fact that the customer chose to use only a portion of the circuits at first does not render the remaining circuits free.*fn73 Indeed, in this regard Telpak is no different than any volume discount or package pricing plan. The mere existence of volume or package pricing does not support antitrust liability. See Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 433 (7th Cir. 1980). Moreover, absent predatory pricing, the sale of bundles of Telpak circuits could have little exclusionary or anticompetitive significance since Bell offered many different marketing plans for long distance business telecommunications users. Since the jury found that Telpak was not predatorily priced, the fact that customers preferred this marketing plan because it was more responsive to their needs than MCI's alternate marketing plan is a matter of little concern to the enforcement of the antitrust laws.*fn74

MCI also contends that Telpak's "fictional routing" feature tended to restrict MCI from serving large private line users. MCI argues that the routing was fictional in the sense that a Telpak customer who purchased a bundle of circuits, for example, from New York City to Columbus, Ohio and another bundle of circuits from Columbus to Toledo, Ohio could combine these circuits and make a call from New York to Toledo, which would be billed under Telpak. MCI contends that it has been injured because, although its Toledo to New York service is cheaper than AT&T's, it does not serve Columbus and a customer requiring communications to all three cities is penalized for choosing MCI.

MCI's competitive disadvantage in this regard stems from the fact that it entered the market only on a limited geographic scale, and does not reflect unlawful predation by AT&T. What MCI calls "fictional routing" merely represents the customer's ability to tack one Telpak circuit onto another in such a way that a call can be placed between two distant cities connected by a string of circuits -- or between intermediate cities. A customer building a private microwave system linking the same cities would be able to achieve precisely the same result. As AT&T points out, Telpak was designed -- and upheld by the FCC -- as an alternative to private microwave systems, and the "fictional routing" of which MCI complains involves no more than billing the Telpak customer as if service were provided over the same kind of facilities that the customer would have available from its own private microwave system.*fn75 We hold, as in the case of the volume pricing of Telpak, that in the absence of predatory pricing such a billing system represents no violation of the antitrust laws.*fn76

IV. INTERCONNECTIONS

In the years following the 1971 Specialized Common Carriers decision, a major source of contention between MCI and AT&T was the extent to which AT&T was obliged to interconnect with MCI's facilities to accommodate MCI's needs. The interconnection issue arose in part because MCI had facilities in place to serve only a limited number of cities and in part because MCI was unable to provide the local circuits necessary to connect its long distance service to the telephone customer. MCI's telecommunications system consists of transmission towers that relay microwave impulses between terminals in the cities MCI serves. In each of those cities MCI must connect its terminals to telephones at its customers' locations. In order to provide full end-to-end transmission, MCI's equipment at some point must make contact with AT&T's equipment because AT&T, through its operating companies, controls the local service to MCI's customers. AT&T also provides long distance service to locations not covered by MCI. The dispute thus focuses on the local interconnections between MCI towers and its customers' premises and on "multipoint" interconnections (discussed infra, at pp. 1147-1150) between MCI towers and certain AT&T long distance circuits.

When MCI sought interconnections that would give it access to AT&T's switched network,*fn77 AT&T balked. AT&T contended that the FCC's 1971 decision limited the new carriers to providing "point-to-point private lines," which require no switching because each line is dedicated to the exclusive use of a specific customer and runs between only two designated premises. MCI complained that AT&T unlawfully refused interconnections for FX and CCSA services, both of which use switching machines,*fn78 and for essentially local lines that led beyond a limited, defined geographical area. MCI also complained that AT&T unlawfully refused interconnections for multipoint service. Although AT&T supplied some interconnections when required by a 1973 district court injunction, it promptly terminated those connections when the injunction was vacated on appeal because the same issues were pending before the FCC. MCI alleged that these terminations were aimed at maintaining AT&T's monopoly by injuring MCI's reputation as a reliable firm and were improper since an FCC decision on the very matter of interconnections was imminent. MCI also maintained that AT&T illegally tied the provision of long distance service to local service.

The interconnections that were actually implemented between AT&T and MCI also gave rise to dispute. MCI asserted that the entire interconnection procedure required by AT&T was unreasonable because the physical interconnections utilized materials inadequate for the volume of business MCI was doing and because it involved unduly complex and ineffective installation and maintenance procedures.

All of these acts, MCI claimed, were committed deliberately by AT&T to damage MCI's conduct of its business and constituted an abuse of AT&T's monopoly power over facilities essential to MCI's success.

A. FX-CCSA Interconnections

1. The Essential Facilities Doctrine

The jury found that AT&T unlawfully refused to interconnect MCI with the local distribution facilities of Bell operating companies -- an act which prevented MCI from offering FX and CCSA services to its customers. A monopolist's refusal to deal under these circumstances is governed by the so-called essential facilities doctrine. Such a refusal may be unlawful because a monopolist's control of an essential facility (sometimes called a "bottleneck") can extend monopoly power from one stage of production to another, and from one market into another. Thus, the antitrust laws have imposed on firms controlling an essential facility the obligation to make the facility available on non-discriminatory terms. United States v. Terminal Railroad Association, 224 U.S. 383, 410-11, 56 L. Ed. 810, 32 S. Ct. 507 (1912); Byars v. Bluff City News Co., 609 F.2d 843, 856 (6th Cir. 1979).

The case law sets forth four elements necessary to establish liability under the essential facilities doctrine: (1) control of the essential facility by a monopolist; (2) a competitor's inability practically or reasonably to duplicate the essential facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility. Hecht v. Pro-Football, Inc., 187 U.S. App. D.C. 73, 570 F.2d 982, 992-93 (D.C. Cir. 1977), cert. denied, 436 U.S. 956, 57 L. Ed. 2d 1121, 98 S. Ct. 3069 (1978). See Otter Tail Power Co. v. United States, 410 U.S. 366, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973); United States v. Terminal Railroad Association, 224 U.S. at 405, 409; City of Mishawaka v. American Electric Power Co., 465 F. Supp. 1320, 1336 (N.D. Ind. 1979), aff'd in relevant part, 616 F.2d 976 (7th Cir. 1980), cert. denied, 449 U.S. 1096, 101 S. Ct. 892, 66 L. Ed. 2d 824 (1981).

The Supreme Court in Otter Tail, considered the refusal of a regulated electric utility to sell power wholesale or to transmit power purchased from other sources to municipalities which had chosen to own their own retail distribution systems. This refusal to sell or transmit was held to violate section 2 of the Sherman Act. The Court noted the district court's determination that "Otter Tail had 'a strategic dominance in the transmission of power in most of its service area ,'" id. 410 U.S. at 377, and, in effect, was concerned that market power in one market (transmission) was being used to further a monopoly in another market (retail distribution). Id. at 377-79.

Otter Tail provides an analogy to the instant problem. AT&T had complete control over the local distribution facilities that MCI required. The interconnections were essential for MCI to offer FX and CCSA service. The facilities in question met the criteria of "essential facilities" in that MCI could not duplicate Bell's local facilities. Given present technology, local telephone service is generally regarded as a natural monopoly and is regulated as such. It would not be economically feasible for MCI to duplicate Bell's local distribution facilities (involving millions of miles of cable and line to individual homes and businesses), and regulatory authorization could not be obtained for such an uneconomical duplication.

Finally, the evidence supports the jury's determination that AT&T denied the essential facilities, the interconnections for FX and CCSA service, when they could have been feasibly provided. No legitimate business or technical reason was shown for AT&T's denial of the requested interconnections. Cf., Gamco, Inc. v. Providence Fruit & Produce Building, Inc., 194 F.2d 484, 487-88 & n.3 (1st Cir.), cert. denied, 344 U.S. 817, 97 L. Ed. 636, 73 S. Ct. 11 (1952) (defendants may deny access to their building because of limited space or the applicant's financial unsoundness). See generally, Comment, Refusals to Deal by Vertically Integrated Monopolists, 87 Harv. L. Rev. 1720, 1740 (1974). MCI was not requesting preferential access to the facilities that would justify a denial. See Town of Massena v. Niagara Mohawk Power Corp., 1980-2 Trade Cas. (CCH) P63,526 (N.D.N.Y. 1980). Nor was MCI asking that AT&T in any way abandon its facilities. See American Football League v. National Football League, 323 F.2d 124 (4th Cir. 1963). MCI produced sufficient evidence at trial for the jury to conclude that it was technically and economically feasible for AT&T to have provided the requested interconnections, and that AT&T's refusal to do so constituted an act of monopolization.

2. The Meaning of the Specialized Common Carriers Decision

AT&T never challenged the assertion that it had denied MCI access to the local distribution network for FX and CCSA service. Instead, AT&T maintained that MCI had never been authorized to receive these interconnections. AT&T also argued that its own regulatory obligations prohibited it from interconnecting MCI with its local switched network for FX and CCSA.

The meaning of the FCC's 1971 Specialized Common Carriers decision lies at the heart of the dispute over interconnections. As indicated, the FCC's 1971 decision was extremely opaque. Following the Specialized Common Carriers decision, AT&T contended that it was required to provide local interconnections only for point-to-point private line service, in accordance with service descriptions contained in documents submitted by the specialized carriers in the 1971 case. But MCI argued that the language of the Specialized Common Carriers decision also required AT&T to provide interconnection with its local switched network for FX and CCSA.

In November 1973, following more than a year of futile negotiations, MCI sought an injunction requiring AT&T to accede to MCI's demand for interconnections. A preliminary injunction was issued but was later vacated on appeal because of a pending FCC show-cause proceeding on the interconnection issue. MCI Communications Corp. v. AT&T, 369 F. Supp. 1004 (E.D. Pa. 1973), injunction vacated on primary jurisdiction grounds, 496 F.2d 214 (3d Cir. 1974). AT&T immediately dismantled all the interconnections it had provided pursuant to the preliminary injunction. This action obviously adversely affected MCI's ability to serve its customers. AT&T claimed its filed tariffs required the disconnection.

Eight days after the Third Circuit decision vacating the injunction, the FCC issued its ruling on the show cause order. The FCC interpreted the Specialized Common Carriers decision, although conceding its lack of clarity, as requiring the interconnections MCI sought. Bell System Tariff Offering of Local Distribution Facilities for Use by Other Common Carriers, 46 F.C.C.2d 413, aff'd sub nom. Bell Telephone Co. v. FCC, 503 F.2d 1250 (3rd Cir. 1974), cert. denied, 422 U.S. 1026, 95 S. Ct. 2620, 45 L. Ed. 2d 684 (1975).

The Specialized Common Carriers decision was interpreted three years later by the District of Columbia Circuit in the Execunet case. MCI Telecommunications Corp. v. FCC, 182 U.S. App. D.C. 367, 561 F.2d 365 (D.C. Cir. 1977), cert. denied, 434 U.S. 1040, 54 L. Ed. 2d 790, 98 S. Ct. 780 (1978). In Execunet the court held that the FCC had not conducted a sufficient hearing in Specialized Common Carriers to justify any limits on the services MCI could provide. MCI was then permitted to offer all forms of long distance service. Thus, with the benefit of hindsight, the FCC's 1974 order and Execunet established MCI's right to interconnections for FX and CCSA.

At trial, MCI contended that in denying interconnections, AT&T intended to prevent competition. AT&T argued that the Specialized Common Carriers decision was so vague that it gave no guidance on AT&T's obligation to interconnect or even on MCI's authority to provide FX and CCSA service. AT&T argued that it reasonably believed that MCI was not authorized to provide the services for which it sought interconnections, and that this good faith belief in the regulatory requirements was a complete defense to antitrust liability for the denial of interconnections.

The propriety of Judge Grady's instructions on the meaning of the Specialized Common Carriers decision became an extraordinary issue in this case. Although noting that "[ordinarily] what a decision means is a question of law for the court," Judge Grady stated that under the circumstances of this case the jury must decide as a fact question whether the Specialized Common Carriers decision required AT&T to provide the requested FX and CCSA interconnections. Tr. 11463. He further told the jury that, even if it found that the Specialized Common Carriers decision ordered AT&T to make the connections, AT&T would not be liable unless it "knew or had good reason to believe that the decision constituted such an order." App. 1200. Judge Grady then explained the holding in Execunet and concluded by stating "I instruct you as a matter of law, therefore, that at the time MCI requested FX and CCSA interconnections it was authorized to render those services and AT&T was obligated under the Communications Act to provide the interconnections." App. 1201. The judge cautioned the jury that a violation of the Communications Act does not establish a violation of the antitrust laws. Finally, Judge Grady instructed that AT&T would not be liable for failure to provide the interconnections if "it believed that it had not been ordered to do so, that MCI was not authorized to provide [FX and CCSA service], and that it would have violated established regulatory policies for MCI to receive the connections." Id.

AT&T asserts that the nature of obligations imposed by a regulatory statute or agency order is a question of law, not of fact, and thus that the jury should not have been permitted to decide whether the Specialized Common Carriers decision required the interconnections MCI sought. AT&T's argument at trial centered on the contention that it denied the interconnections in good faith.*fn79 That good faith, AT&T said, was based on its belief that neither the Communications Act nor the Specialized Common Carriers decision ordered the interconnections because that decision and the general regulatory policy relevant to the issue were so unclear that they offered little guidance.

By instructing on the Specialized Common Carriers decision, Judge Grady attempted to take AT&T's argument into account. The unusual dilemma facing the district court, however, was that in this case it concluded that antitrust liability turned not so much on what the Specialized Common Carriers decision ordered, but on what AT&T believed it ordered. Declining to take a legal position on the meaning of the decision, Judge Grady first permitted the jury to decide entirely as a fact question what the decision actually ordered. Although that approach improperly allowed the jury to decide what amounted to a question of law, the only party that could have been harmed by that error was MCI, whose case would have been cut short only by a legally incorrect finding that no interconnections were required. Judge Grady's approach could not have prejudiced AT&T, and only that possibility concerns us on appeal.

The remainder of the instruction on the Specialized Common Carriers decision took into account the thrust of AT&T's theory of defense: namely, that regardless of what the 1971 decision ordered as a matter of law, AT&T believed in good faith that MCI was not authorized to provide FX and CCSA and that AT&T was not required to provide the interconnections and could make an independent assessment of the public interest with respect to these interconnections. The jury could decide that AT&T was free to deny interconnections, based upon a good faith determination that interconnection was contrary to the public interest, by finding that AT&T believed no interconnections were required because (a) the 1971 decision by its terms did not explicitly order them or (b) the context in which the interconnections were ordered was so vague that AT&T did not know that they were ordered. In either case, AT&T's defense could be fully considered by the jury. As indicated, only MCI and not AT&T could have been injured by transforming into a fact question an issue decided against AT&T as a matter of law by the FCC in 1974 and by the District of Columbia Circuit in 1977.

3. "Retroactive" Application of Execunet

AT&T also contends that the court erred in instructing on the meaning of the Execunet decision. AT&T argues that the district court improperly gave retroactive application to the 1977 Execunet decision by instructing the jury that the case meant MCI had been authorized to provide FX and CCSA, and AT&T had been obligated under the Communications Act to provide the FX and CCSA interconnections since the date MCI's permits issued.

The Supreme Court has in part analyzed the retroactivity question as follows:

The decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed. . . .

Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971) (citations omitted).

Although Execunet may have taken AT&T and the FCC by surprise, its holding did not establish a new principle of law, nor was the case one of first impression. While the FCC had concluded that Specialized Common Carriers did not authorize Execunet service, 60 F.C.C.2d at 38-40, the appeals court noted that this view represented "a substantial departure from prior administrative practice." 561 F.2d at 373. The court carefully set out FCC regulations and practices, and the case law from both the District of Columbia and Second Circuits to support its conclusion. Id. at 374-76.*fn80 In a later case dealing with FCC proceedings on the interconnection issue pursuant to the Execunet decision, the District of Columbia Circuit reaffirmed its earlier view. MCI Telecommunications Corp. v. FCC, 188 U.S. App. D.C. 327, 580 F.2d 590, 593 (D.C. Cir.), cert. denied, 439 U.S. 980, 58 L. Ed. 2d 651, 99 S. Ct. 566 (1978). The reasoning and holding of the District of Columbia Circuit in Execunet, while perhaps startling, did not create a "new principle of law."*fn81

Unlike the usual situation in which a question of retroactive application is raised, the Execunet decision was not determinative of the outcome in this case.*fn82 Even though Judge Grady correctly instructed the jury that by the reasoning of Execunet, MCI was entitled to the interconnections, the instructions clearly stressed that entitlement under the Communications Act did not establish liability under the antitrust laws. More importantly, the careful instruction that the jury was to consider "the historical context and all of the facts and circumstances known to the parties at the time" of AT&T's allegedly improper acts*fn83 preserved AT&T's good faith defense (which was emphasized in the instruction immediately following the explanation of Execunet), and rendered Judge Grady's instruction on Execunet an accurate representation of the controversy between MCI and AT&T rather than a "retroactive" application of a new legal principle resulting in prejudice to AT&T.

Nor do we believe that the explanation of Execunet misled or confused the jury. AT&T argues that it "placed AT&T in the anomalous position of being required to prove that it was ignorant of the law." AT&T does not argue that Judge Grady misstated the law. His instruction placed in proper context AT&T's position that it believed at the time that MCI was not authorized to provide FX and CCSA service. It removed any misleading implication that MCI was not, as a matter of law, so authorized, leaving only the crucial question of AT&T's good faith belief, which was the focus of the remainder of the instruction. Moreover, as previously stated, the instructions, when read as a whole, did not mislead the jury as to the date Execunet was decided in relation to the date of the conduct under scrutiny here.

4. Instructions on Regulatory Policy

As we have already indicated the regulatory constraints governing the behavior of a public utility are an important factor to be weighed in assessing the potential antitrust liability of a regulated firm. See supra, at pp. 1105-1111. Ordinarily, antitrust liability should not be imposed when a firm acts in compliance with its regulatory obligations. See Watson & Brunner, Monopolization by Regulated "Monopolies": The Search for Substantive Standards, 22 Antitrust Bull. 559 (1977).

AT&T contends that, since it asserted at trial that public interest considerations under Section 201(a) of the Communications Act prompted its refusal to provide interconnections, the district court should have instructed the jury on the details of the regulatory statute as they relate to the controversy involved here. Judge Grady instructed the jury that MCI had to prove that AT&T denied the FX and CCSA interconnections for anticompetitive reasons, and not because of its good faith belief "that it would have violated established regulatory policies for MCI to receive the connections."

AT&T argues that this instruction was nonetheless inadequate because it failed to explain in detail the regulatory provisions governing interconnection. In making this argument AT&T relies heavily on Mid-Texas Communications Systems, Inc. v. AT&T, 615 F.2d 1372 (5th Cir.), cert. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980). In Mid-Texas, the defendant Bell System had refused to make available to a local telephone company certain essential interconnections. The Fifth Circuit reversed a verdict for the plaintiff on the basis of erroneous instructions to the jury. The jury was instructed to assume the existence of monopoly power, thus precluding it from consideration of state and federal regulation. On the issue of willful misuse of monopoly power, the instruction allowed for consideration of "legitimate telephone business reasons," but did not specifically direct the jury to take into account the ...


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