& Admin. News at 4620; see 15 U.S.C. § 34(1)(B).
Requirement of Valid Governmental Action
In a final effort to distinguish this case from Sakamoto, IT & E asserts that GTA is entitled to immunity as a federal instrumentality only if the challenged conduct constitutes valid governmental action. In support of its position, IT & E cites the district court's opinion in Sakamoto. See Sakamoto v. Duty Free Shoppers, Ltd., 613 F. Supp. 381 (D.Guam). There, the district court noted that the federal instrumentality in question, the GAA, was acting "in accordance with the mandate of the Government of Guam when it entered into the exclusive airport merchandise concession agreement." Id. at 387. Accordingly, IT & E contends that GTA would not qualify for antitrust immunity under the federal instrumentality doctrine if its conduct was ultra vires or beyond the scope of authority conferred in its enabling legislation.
The simple answer to this argument is that the federal instrumentality doctrine provides absolute immunity. Thus, in Sea-Land, the seminal case which established the doctrine, the Court of Appeals held that "the United States, its agencies and officials, remain outside the reach of the Sherman Act." Id. at 246. See also Howes Leather Co. v. Golden, 681 F. Supp. 6, 15 (D.D.C. 1987) ("the government, its agencies, and officials, are absolutely immune from antitrust liability per se"). Furthermore, IT & E has not succeeded in demonstrating that GTA's adoption of the third amendment to the Traffic Agreement exceeded the scope of its legal authority. GTA's enabling legislation authorizes it to provide interconnection services, establish rates for those services, and enter into contracts. See 12 Guam Code Ann. § 7104. Indeed, recent legislation on Guam demonstrates that GTA has the authority to enter into private agreements.
See Guam Public Law No. 20-146, § 6 (1990), attached as Exhibit C to Defendant's Supplemental Memorandum in Further Support of Summary Judgment.
The Definition of "Person" under 15 U.S.C. § 7
Finally, the Court rejects IT & E's argument that GTA is not entitled to immunity as a federal instrumentality because as a public corporation incorporated under territorial law it is a "person" under 15 U.S.C. § 7.
This argument does not survive scrutiny. In Sakamoto, the GAA was held to be a federal instrumentality despite the fact that it too is a public corporation incorporated under territorial law. Similarly, the Federal Reserve Bank, a public corporation with private shareholders, has also been held immune as a federal instrumentality. Jet Courier Serv. v. Federal Reserve Bank, 713 F.2d 1221, 1228 (6th Cir. 1983). See also City of Loudon v. TVA, 585 F. Supp. 83, 87 (E.D. Tenn.), aff'd, 754 F.2d 372 (6th Cir. 1984) (TVA exempt from antitrust laws).
* * * *
The thrust of IT & E's complaint is that it was victimized by GTA actions pursuant to a conspiracy with Globcom. See Complaint at 21-22. But, as discussed above, the actions of GTA, a federal instrumentality, cannot give rise to antitrust liability. Therefore, Globcom is entitled to summary judgment on all claims based on the alleged combination or conspiracy between it and GTA. Accordingly, the Court finds that Globcom is entitled to judgment as a matter of law on Counts I (unlawful combination in violation of 15 U.S.C. § 1), IV (unlawful combination in violation of 15 U.S.C. § 2), and V (unlawful combination in violation of 15 U.S.C. § 3) of the amended complaint.
As a final matter, the Court turns to Globcom's motion for a primary jurisdiction referral to the FCC.
Because the Court has determined that GTA is a federal instrumentality and that its conduct is within the scope of its territorial enabling legislation, the Court need not consider the applicability to Guam of the FCC interconnection rules. As the Court has no need to refer this issue to the FCC, the motion for primary jurisdiction referral will be denied.
A separate order accompanies this opinion.
ORDER -- June 12, 1990, Filed
Upon consideration of defendant's motion for summary judgment and defendant's motion for a primary jurisdiction referral to the Federal Communications Commission, the opposition thereto, the arguments of counsel, the entire record herein, and in accordance with the Court's opinion of this date it is hereby
ORDERED that defendant's motion for summary judgment be and hereby is granted in part; and it is further
ORDERED that judgment be and hereby is entered on behalf of the defendant on Counts I, IV, and V of the amended complaint; and it is further
ORDERED that defendant's motion for a primary jurisdiction referral to the Federal Communications Commission be and hereby is denied.
ORDER -- June 12, 1990, Filed
Upon consideration of defendant's Motion to Strike Plaintiff's Affidavits, the opposition thereto, and the entire record herein it is hereby
ORDERED that defendant's motion to strike plaintiff's affidavits be and hereby is denied.