Beyond Goldwasser: Ex Post Judicial Enforcement in Deregulated Markets

Abstract

Regulatory agencies are increasingly adopting ex ante rules to set market access terms and conditions for network industries. At the same time, in industries such as telecommunications and electric power transmission and distribution, antitrust laws play an important role in defining the terms and conditions of market access. Courts may have an important ex post enforcement role to play in the enforcement of the antitrust laws.

In this Essay, I address the filed rate doctrine - a legal principle that determines when courts, rather than regulatory agencies, may serve as a standard-setter for or arbiter of market terms, independent of their widely-accepted role as the reviewer of decisions by an agency, such as the Federal Communications Commission (FCC). I begin by discussing the issue in the context of electric power deregulation. Then, I turn to the telecommunications context, in which the points of departure for this issue after the Telecommunications Act of 1996 are the Seventh Circuit's Goldwasser decision and the Second Circuit's Curtis Trinko case, which is currently pending before the U.S. Supreme Court. It is argued that Goldwasser should be read narrowly, to preclude judicial consideration of only to poorly-pled antitrust claims.