Covad Communications Co. v. Bell Atlantic Corp‪.‬

Argued November 18, 2004 Reissued March 2, 2005 This appeal comes to us in the wake of Verizon Communications Inc. v. Curtis V. Trinko, LLP, 540 U.S. 398 (2004), in which the Supreme Court held that a complaint alleging an incumbent local exchange carrier (ILEC) refused to share elements of its network with a competitor, as required by the Telecommunications Act of 1996, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq., did not state a claim for monopolization or attempted monopolization under § 2 of the Sherman Act, 15 U.S.C. § 2. In the present case, Covad Communications Company sued Bell Atlantic Corporation, also an ILEC, similarly alleging Bell Atlantic had violated § 2 of the Sherman Act by virtue of having breached various duties imposed upon it by the 1996 Act and by engaging in other anticompetitive conduct. The district court, prior to the Supreme Court's decision in Trinko, granted Bell Atlantic's motion to dismiss Covad's complaint for failure to state a claim upon which relief can be granted. Covad Communications Co. v. Bell Atlantic Corp., 201 F. Supp. 2d 123, 127 (D.D.C. 2002). Covad appeals, arguing: (1) the allegations in its complaint relative to the 1996 Act are materially different from the allegations held deficient in Trinko; and (2) at least some of its allegations are of conduct independently proscribed by the Sherman Act.1