Hastings Law Journal


This Article explains the current confusion in the federal courts' antitrust analysis of network joint ventures and proposes a means by which that confusion may be resolved. The courts have been unable to determine effectively the circumstances under which access to essential network joint ventures should be compelled. The Article proposes a new approach by which the judiciary can regulate access to network joint ventures.

Tie proposed approach relies on presumptions and burdens of proof to simplify the courts' analysis. Instead of the complex market power inquiry required by the rule of reason, courts will be able to focus on a few easily determinable factors that will be decisive in their analysis. Under this approach, the party seeking access to an existing network joint venture must rebut an initial presumption that open access need not be compelled. The excluded party can rebut the presumption only by proving that "but for" access to the network, it would be unable to compete effectively in the relevant market. If the excluded party is successful in rebutting this presumption, the burden shifts to members of the network to justify any restrictions on access that are imposed by the venture. Network members must then demonstrate that such restrictions are necessary to promote the efficiency of the venture. This approach protects the property rights of the network members while insuring open access when it is necessary to preserve competition in the market served by the network. Adoption of this approach would simplify the courts' antitrust analysis of network joint ventures, thus conserving judicial resources and giving businesses better guidance on the antitrust standards for network access.

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