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Dear Reader:

We wanted to let you know that, after nearly three years of operation on the World Wide Web, National Journal's Insider Update: The Telecom Act ceased publication as of January 1, 2008.

We took this step at a time when the National Journal Group is moving to increase technology coverage -- including reporting on telecommunications and broadcasting issues -- in several of its other publications. In particular, National Journal's CongressDaily -- our twice daily publication for Capitol Hill insiders -- will be adding staff in the coming weeks for this purpose.

CongressDaily will feature the kind of detailed coverage of telecom issues, both on Capitol Hill and at the Federal Communications Commission, that you are accustomed to seeing in Insider Update -- plus a lot more.

If you are interested in a trial subscription to CongressDaily, please call 800-424-2921 or e-mail us at memberships@nationaljournal.com. Thank you for your readership and support of Insider Update, and please don't hesitate to write to me at lpeck@nationaljournal.com if you have any questions or concerns.

With best regards,
Lou Peck Editor In Chief

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High Court Dismisses Case Against Telcos

By Andrew Noyes

(Monday, May 21) The Supreme Court dismissed an antitrust case against a handful of dominant telecommunications firms accused of conspiring against competitors in local telephone markets.

The 2002 class-action case against BellSouth, Qwest Communications International, the former SBC, and Verizon Communications was characterized by some as the most important antitrust matter before the court since a 1986 feud between Japanese television makers and U.S.-based rivals. The court heard Bell Atlantic v. Twombly last November.

The complaint, filed on behalf of William Twombly and Lawrence Marcus, alleged that the companies refused to provide sufficient assistance to new competitors under FCC regulations. They also claimed that the firms refrained from "meaningful," but not total, competition in one another's territories.

The 2nd U.S. Circuit Court of Appeals previously ruled that allegations of companies acting similarly, combined with a conclusory allegation of conspiracy, is almost always enough to justify an antitrust claim. Justice David Souter wrote the high court's 7-2 majority opinion reversing the decision, saying it distorted basic antitrust policies.

Chief Justice John Roberts and Justices Samuel Alito, Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined the majority.

Justice John Paul Stevens filed a dissenting opinion, which Ruth Bader Ginsburg supported in part. Stevens said he disagreed with the district court's dismissal of the case because it did not require a response from the Bells, which is required by federal law and prior rulings.

The ruling "embraces an important principle about protecting the freedom of firms to make unilateral decisions on what markets to enter or not enter," Verizon Deputy General Counsel John Thorne said in a statement. The decision "affirms the freedom to decide when and how to enter new markets."

Stephen McCullough, Virginia's deputy solicitor general called the ruling a "victory for common sense." Jones Day partner John Majoras said the ruling is a "death knell" for civil antitrust claims that allege a litany of parallel business activities among competitors accompanied by "an all-encompassing, yet unsupported, charge that a conspiracy lurks behind them."

He said money spent defending those cases and paying settlements that "result from the fear of unsophisticated juries being handed a treble damages bludgeon" harm the consumers that class-action lawyers purport to protect.

The U.S. Chamber of Commerce, legal scholars, economists and 16 state attorneys general filed friend-of-the-court briefs on behalf of the telephone companies. The American Antitrust Institute backed the class-action.

AAI President Albert Foer had not yet read the opinion but said it would be important to gauge "how far it may go in limiting the ability of plaintiffs to obtain discovery against cartels." A "Catch-22" could eliminate compensation of injured parties except in "follow-on" cases where the government has established a violation of law, he said.


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