No antitrust issue in ISP suit vs. AT&T, U.S. Supreme Court rules

Reuters reports the U.S. Supreme Court has ruled against several Internet Service Providers who brought an antitrust suit against AT&T in 2003 claiming the big telco's pricing policies on DSL service constituted uncompetitive market conduct.

The ISPs alleged AT&T and its predecessor, SBC Communications, maintained unreasonably high wholesale access charges to ISPs to deliberately thwart them from competing with SBC/AT&T for Digital Subscriber Line (DSL) customers as permitted under the line sharing provisions of the federal Telecommunications Reform Act of 1996. Ma Bell then lowballed prices on her own DSL offerings, making it impossible for the ISPs to compete on price, the ISP plaintiffs complained.

Supreme Court to hear AT&T DSL anti-trust case

More than two decades ago, a federal judge ordered the breakup of AT&T after concluding Ma Bell's monopolistic control of local and long distance voice telephone service violated federal anti-trust law.

Now AT&T as the successor to SBC Communications faces another anti-trust suit that the U.S. Supreme Court decided to take up this week. The high court will review a Sept. 11, 2007 decision by the 9th U.S. Circuit Court of Appeal in which the appellate court affirmed a U.S. district court ruling allowing an anti-trust action brought against SBC/AT&T by several Internet service providers to proceed.

The ISPs allege SBC/AT&T maintained unreasonably high wholesale access charges to ISPs to deliberately thwart them from competing with SBC/AT&T for Digital Subscriber Line (DSL) customers as permitted under the line sharing provisions of the federal Telecommunications Reform Act of 1996. Ma Bell then lowballed prices on her own DSL offerings, making it impossible for the ISPs to compete on price, the ISP plaintiffs complain.

The case, Linkline Communications et. al. v. SBC California, et. al. represents an important test of federal policy under the 1996 law intended to foster robust market competition and speed timely deployment of high speed Internet access to all Americans.

However the suit suggests SBC/AT&T's actions in response to the law have had just the opposite effect. By cutting its DSL prices to the bone in order to deter competing ISPs -- SBC/AT&T was promoting residential DSL for as little as $13 a month in late 2006-- it lacked adequate revenue to finance the expansion of DSL within its service territory. That led to the formation of monstrous broadband black holes filled with frustrated customers unable to order wireline broadband from AT&T at any price.

U.S. Supreme Court asks for government brief in anti-trust suit against AT&T

The Associated Press reports the U.S. Supreme Court has asked Solicitor General Paul Clement for his opinion on whether the high court should review a Sept. 11 ruling by Ninth Circuit U.S. Court of Appeals allowing an anti-trust suit against AT&T by four California Internet Service Providers (ISPs) to go forward.

The ISPs contend AT&T jacked up wholesale prices it charged ISPs for access to its lines in order to subject the ISPs to a "pricing squeeze" as part of a scheme to drive consumers to SBC's proprietary retail DSL services.

According to the AP, the court's request for Clement's opinion shows at least some of the justices are interested in taking up the case, Linkline Communications et. al. v. SBC California, et. al.

From a market perspective, the suit spotlights a major roadblock in the implementation of federal law enacted in 1996 designed to speed the deployment of advanced telecommunications services including broadband Internet access. If the allegations of the ISPs are correct, they explain to a large extent why AT&T has not fully built out its broadband infrastructure because it set its DSL prices too low to cover the cost of doing so in much of its service area, leaving sprawling broadband black holes.

Watch for AT&T to continue to mount a scorched earth legal strategy to prevent this lawsuit from proceeding on the merits since it could effectively turn the clock back to 1984 when the break up of AT&T was ordered by a federal court. Tellingly, another big telco that could also find itself facing anti-trust litigation, Verizon, has filed in brief in the case in support of AT&T.

Federal appeals court rejects telco's bid to dismiss anti-trust action brought by competing ISPs

The Ninth U.S. Circuit Court of Appeals has rejected a bid by SBC Communications (now AT&T) to toss out a federal anti-trust action brought by four California Internet Service Providers (ISPs). The ISPs sued the telco claiming it jacked up wholesale prices charged competing ISPs for access to its lines in order to subject the ISPs to a "pricing squeeze" as part of a scheme to drive consumers to SBC's proprietary retail DSL services.

The federal appellate court decision affirms a U.S. district ruling that the suit could proceed as an anti-trust action under the Sherman Antitrust Act. SBC unsuccessfully argued that the action was barred by the U.S. Supreme Court's ruling in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). In Trinko, the Supreme Court held that the Sherman Act doesn't apply to Verizon's failure to deal fairly with a competing ISP. A customer of one of Verizon's competitors alleged Verizon engaged in anticompetitive practices by discriminatorily delaying orders placed by customers of Verizon’s competitors that Verizon was required to fill by the federal Telecommunications Act of 1996.

The Sept. 11 ruling comes as AT&T and other telcos have requested the Federal Communications Commission to relieve them from the requirement that they continue making their lines available to competing ISPs under the 1996 Act, according to this recent post at Broadband Reports.com. The FCC is expected to act on the requests this week.

The full ruling by the Ninth Circuit in Linkline Communications et. al. v. SBC California, et. al. can be read here.