The opinion of the court was delivered by: Gladys Kessler, United States District Judge.
Plaintiffs, Covad Communications Company and Dieca Communications,
Inc. (collectively "Covad"), bring this antitrust action for damages and
injunctive relief against Defendants, Bell Atlantic Corporation and its
subsidiaries (collectively, "Bell Atlantic").
The matter is now before the Court on Defendants' Motion to Dismiss the
Second Amended Complaint. Upon consideration of the Motion, Opposition,
Reply, Sur-reply, the numerous submissions of supplemental authority
submitted by parties, the Motions Hearing held on March 11, 2002, and the
entire record herein, for the reasons stated below, the Court grants
Defendants' Motion to Dismiss.
Covad is a California-based start-up company founded in 1996 that uses
a technology called Digital Subscriber Line ("DSL") to provide high-speed
Internet services, as well as other network and data services.*fn2
Defendants are collectively the Bell Atlantic Corporation and its
twelve subsidiaries.*fn3 Bell Atlantic provides telecommunications and
local exchange services in thirteen states along the North Eastern
Seaboard as well as in the District of Columbia.*fn4
Covad alleges that Bell Atlantic has unlawfully maintained monopoly
power in various telecommunications markets, including the DSL market, and
has engaged in anticompetitive and exclusionary conduct in violation of
Section 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. § 1, 2
("Sherman Act"), Sections 4 and 16 of the Clayton Antitrust Act,
15 U.S.C. § 15 and 26 ("Clayton Act"), the District of Columbia
Antitrust Act of 1980, D.C. Code §§ 28-4503, 4508 and common law.
Before turning to the particulars of Covad's Complaint, some general
explanation about the regulatory framework within which the parties
operate is warranted.
A. Telecommunications Act of 1996
The relationships between the parties are governed in large part by the
Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56 (1996),
codified at 47 U.S.C. § 151 et seq. ("1996 Act" or the "Act"), which
sought to jump-start competition in the communications industry after a
lengthy period of state and FCC regulated monopolies. The goal of the
1996 Act was to transform the telecommunications industry from a
monopolistic setting to a competitive one.*fn5
To encourage competition, the Act requires that those companies that
have historically provided telephone services, referred to as "incumbent
local exchange carriers" or "ILECs," provide certain services to new
entrants in the telecommunications market, referred to as "competitive
local exchange carriers" or "CLECs."
Among other things, the 1996 Act requires that ILECs permit
"interconnection" with their local telecommunications network.*fn6
Specifically, ILECs must give new entrants access to their local network
on terms that are "just, reasonable and non-discriminatory" so that these
new entrants or CLECs can compete with ILECs in existing and emerging
telecommunications markets. 47 U.S.C. § 251. Furthermore, the 1996
Act establishes a set of procedures for making and enforcing
"interconnection agreements" between ILECs and CLECs for access to local
networks. 47 U.S.C. § 252.
Since December of 1997, Covad (a CLEC) and Bell Atlantic (an ILEC),
have entered into numerous interconnection agreements concerning access
to Bell Atlantic's local network. All of these agreements have been, or
currently are, the subject of dozens of enforcement proceedings before
numerous state regulatory bodies and the FCC.
In this action, Covad alleges that Defendants have unlawfully
maintained their monopoly power in various telecommunications markets by
engaging in a pattern of "unlawful, anticompetitive and fraudulent
practices" in order to prevent Covad's entry into those markets. Compl.
In particular, Covad alleges that its DSL services threaten Bell
Atlantic's monopoly power in three different product markets, namely the
"Local Internet Access Market," the "Local Telecommuting Market," and the
"Local Voice Services Market."*fn7 See Compl. ¶ 53.
asserts the existence of hundreds of different geographic
markets in the states Bell Atlantic serves.*fn8 Virtually all the
conduct of which Plaintiffs complain concerns Bell Atlantic's failure to
perform duties required under the 1996 Act. Chief among these allegations
is that Bell Atlantic has denied Covad access to its local telephone
network in the following four ways: (1) refusing to "collocate" or
provide physical space and facilities for the placement of Covad's
equipment within Bell Atlantic's central offices, Compl. ¶¶ 91-124;
(2) denying access to "local loops," which are the wires running between
Bell Atlantic's central offices and customers' premises, Compl. ¶¶
125-177; (3) refusing to maintain adequate operations support systems
("OSS"), the computer systems that Covad along with numerous other new
entrants in the local telecommunications markets must use to order loops
from Bell Atlantic, Compl. ¶¶ 131-135; and (4) denying access to the
"transport" facilities that connect Covad's central office equipment with
other points in Covad's network, Compl. ¶¶ 175-177.
Covad argues that Bell Atlantic has repeatedly denied or delayed access
to these four dimensions of the local telephone network. Plaintiffs
further allege that timely access to Bell Atlantic's local network is
essential to their provision of DSL services and to competition in the
relevant telecommunications markets. See Compl. ¶¶ 89-177.
Plaintiffs' other allegations of anticompetitive conduct include price
squeezing and refusal to line share, see Compl. ¶¶ 178-185;
misleading and fraudulent advertising, see Compl. ¶¶ 186-192; bad
faith negotiations, see Compl. ¶¶ 196-201; and patent misuse, see
Compl. ¶¶ 202-212.
Plaintiffs filed this action on April 28, 1999, amending their
Complaint twice, once on July 8, 1999, and again on August 10, 2000.
The Court has issued two Memorandum Opinions since then, both of which
denied Non-resident Defendants' Motions to Dismiss for Lack of Personal
Jurisdiction.*fn9 Defendants now move to dismiss the entire case for
failure to state a claim. ...