Covad said it would ‘vigorously appeal’ decision Fri. by U.S. Dis...

Act generally couldn’t be considered in antitrust proceedings. Covad Gen. Counsel Dhruv Khanna said ruling by U.S. Dist. Judge Gladys Kessler was “erroneously… based on the Goldwasser Decision.” Goldwasser decision, issued in 2000, has put damper on several CLEC efforts to take antitrust action against Bells. In complaint filed 3 years ago, Covad had complained that Verizon denied it access to local phone network in several ways, such as refusing to provide colocation space, denying access to local loops and transport facilities, refusing to maintain adequate operations support systems. Judge concluded that those charges involved Telecom Act and thus couldn’t be considered as antitrust claims. Telecom Act contains duties that “extend beyond the requirements of antitrust law,” Kessler said, and “the plain language of the 1996 Act precludes creation of antitrust claims” for duties created under Telecom Act. Kessler said she read Telecom Act as stating that: “Conduct that was proscribed prior to the 1996 Act remains proscribed after its enactment [but] conduct that did not violate antitrust law prior to the 1996 Act does not now violate antitrust law after the Act. There is nearly unanimous consensus that the 1996 Act imposes affirmative duties of assistance that require far more than the existing antitrust laws now require. If Congress intended antitrust liability and remedies to attach to violations of the specific and affirmative duties set forth in the 1996 Act, it certainly knew how to make its intention known by including provisions to that effect in the 1996 Act.” Judge didn’t accept Covad’s argument that antitrust laws were applicable because Verizon’s denial of access amounted to denial of “essential facility” by monopolist in violation of antitrust law. “Covad’s allegations fail to state an essential facility claim [because they] focus on disputes over the terms for obtaining access to [Verizon’s] network -- an entitlement that was first created by the 1996 Act, not by the antitrust laws,” Kessler said. Those terms are regulated by FCC and states so “there can be no significant harm to competition or anticompetitive effect as a matter of antitrust law,” she said. Kessler said that subjecting those issues to judicial oversight could “interfere with the ability of state regulatory agencies and the FCC to carry out their regulatory missions and could subject ILECs to inconsistent standards of conduct.”