The Distinction Between Monopoly and Monopolization in Antitrust Law (CRS Report for Congress)
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| Release Date |
Oct. 23, 2006 |
| Report Number |
RL33708 |
| Report Type |
Report |
| Authors |
Janice E. Rubin, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Antitrust law does not mandate either that markets be competitive, or that they contain some predetermined number of participants/competitors; it is concerned, rather, with the operation of markets, on the assumption that a properly functioning market (i.e., one in which there is an opportunity for viable competition, and is not skewed by the predatory actions of participants), will best protect consumers. "Monopoly" and "monopolist" are, therefore, merely descriptive terms, used to illustrate situations in which a single entity (or group of entities) possesses effective control of the market in which it operates; neither term implies anything about the lawfulness of the monopoly possessed. "Monopolization," on the other hand, is the term used in antitrust law to characterize as unlawful a situation in which a monopolistâirrespective of whether his monopoly has been lawfully achievedâcouples his monopoly status with behavior designed to unfairly exploit, maintain, or enhance his market position. Similarly, "attempted monopolization"connotes a situation in which an entity unlawfully or unfairly attempts to secure a market monopoly. The long-standing, judicially created Rule of Reason, which involves balancing an anticompetitive action with any procompetitive results, underscores those facts.
Whether a market participant who is a monopolist must deal with anyone who desires to deal with it continues to be largely governed by the so-called Colgate doctrine. In 1919, in United States v. Colgate & Co. (250 U.S. 300), the Supreme Court recognized the unfettered "right" of a private vendor "to exercise his own independent discretion as to parties with whom he will deal ...." Colgate notwithstanding, the existence of an "essential facility" (i.e., a necessary component of a potential competitor's business and which is both unavailable from any source other than the alleged monopolist and cannot be reasonably duplicated), once established, has generally been thought to impose a duty to deal with the actual or potential competitors of even a lawful monopolist. The continuing viability of the so-called "essential facilities" doctrine, however, was called into question by the Supreme Court's 2004 ruling in Verizon v. Trinko (540 U.S. 398).
The Antitrust Division of the Department of Justice (DoJ) and the Federal Trade Commission (FTC) each operate on the assumption that the monopoly status of competitors is antitrust-relevant only insofar as their actions may impact the operation or competitiveness of markets.
This reportâwhich explores the difference between monopoly and monopolization as those terms are used in antitrust law, and the differing enforcement consequences of eachâwill be updated if case law or legislation alters the concepts it discusses. It is based on several existing documents by the same author, including CRS Report RS20241, Monopoly and Monopolization - Fundamental But Separate Concepts in U.S. Antitrust Law; CRS Report RS21723, Verizon Communications, Inc. v. Trinko: Telecommunications Consumers Cannot Use Antitrust Laws to Remedy Access Violations of Telecommunications Act; and Duty of a Monopolist to Deal, a general distribution memorandum.
