# Verizon v. Trinko (2004) **Argued:** October 14, 2003 · **Decided:** January 13, 2004 · **Unanimous in judgment; Justice Antonin Scalia for six** · 540 U.S. 398 The single biggest obstacle in every modern platform monopolization case, and the passage that most clearly states what antitrust became under the [[Consumer Welfare Standard]]. A law firm that bought local phone service from AT&T sued Verizon, the incumbent carrier, alleging that Verizon had deliberately given rivals poor access to its network in violation of the Telecommunications Act of 1996 — and that this was also monopolization under Sherman §2. *(On the vote: the Court was unanimous in the judgment. Scalia's opinion had six votes; Stevens, Souter and Thomas concurred in the judgment only, on standing grounds. Sources that report "6–3" wrongly imply dissenters — there were none.)* ## The holding A regulatory duty to deal created by the 1996 Act does not become an antitrust duty. And the antitrust exception for refusals to deal is narrow — *Aspen Skiing* (1985) is "at or near the outer boundary of § 2 liability," confined to its facts: termination of a **voluntary and presumably profitable** prior course of dealing, plus a refusal to sell even at retail price. Verizon's interconnection had been compelled by regulators, not chosen, so no prior voluntary dealing existed. ## The passage > "The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system. The opportunity to charge monopoly prices—at least for a short period—is what attracts 'business acumen' in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct." That is [[United States v. U.S. Steel]] (1920) restated for the innovation economy — mere size and unexerted power are not offenses; the statute "requires overt acts." The doctrine [[Learned Hand]] repudiated in 1945 came back in 2004 with better prose. ## Why every platform case has to work around it *Trinko* forecloses the most intuitive theory against a dominant platform: that it should be required to deal fairly with the businesses that depend on it. So the cases are pleaded differently. [[United States v. Google]] alleges exclusive default contracts rather than refusal to deal. [[United States v. Apple]] alleges a course of conduct — degrading messaging, blocking cloud gaming, restricting smartwatches — whose only coherent explanation is exclusion, precisely to avoid *Trinko*'s no-duty-to-deal rule. The 2020 House Judiciary report recommended that Congress override *Trinko* by statute. Congress did not. See [[US Antitrust and Monopoly Timeline]].