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MOBILFONE OF NORTHEASTERN PENNSYLVANIA, INC. v. CO

March 7, 1977

MOBILFONE OF NORTHEASTERN PENNSYLVANIA, INC.
v.
COMMONWEALTH TELEPHONE COMPANY



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 HISTORY AND CONTENTIONS

 In this an antitrust action, plaintiff, Mobilfone of Northeastern Pennsylvania, Inc. (Mobilfone) seeks to restrain the defendant, Commonwealth Telephone Company (Commonwealth) from establishing a one-way radio signaling service in the greater Wilkes-Barre area, alleging violations of Sections 1 and 2 of the Sherman Anti-trust Act, 15 U.S.C. § 1 and § 2 and the Clayton Act, 15 U.S.C. § 26. The service is described by Mobilfone as follows:

 
"Telephone users simply dial an ordinary telephone number terminating in Plaintiff's automatic radio signaling system, wait for the established beep tone, then dial Plaintiff's subscriber's assigned number. The number activates the subscriber's receiver to sound an alerting tone."

 Mobilfone, currently furnishing such service in the Wilkes-Barre area, also provides mobile phone service to its customers.

 Commonwealth, a telephone company serving 100,000 customers and having the sole telephone franchise in the Wilkes-Barre area, seeks the right to also provide one-way radio signaling service in said area.

 Alleging violation of the antitrust laws, Mobilfone contends that Commonwealth's sales and advertising facilities are much larger than Mobilfone's; Commonwealth can use one-way signaling as a lure to its telephone service and, therefore, need not earn profit from its signaling business; Commonwealth can use its own wirelines in its one-way signaling service, while Mobilfone must rent its lines from Bell of Pennsylvania; Commonwealth can use service personnel from its wireline service department to operate on its signaling service, while Mobilfone must employ a special staff of service personnel for its one-way signaling service; Commonwealth refuses to make its wirelines available to Mobilfone.

 Commonwealth seeks summary judgment, contending that as a heavily regulated industry, one-way signaling is exempt from antitrust scrutiny.

 PROCEDURAL HISTORY

 Commonwealth applied for approval of the right to enter into one-way radio signaling service with the Pennsylvania Public Utility Commission (PUC) and the Federal Communications Commission (FCC). Both agencies granted approval over objection.

 The PUC considered the argument here advanced that the grant of approval would "create an undesirable economic situation". It acknowledged that Commonwealth possessed much greater resources than protestant, Mr. Ted Ehrhardt, Mobilfone's principal. It nonetheless concluded that:

 
"(The) furnishing of one-way radio-telephone paging service by an established operating telephone utility is a logical extension of its general telephone service clearly in the public interest, and should be encouraged rather than denied." In Re Application of Commonwealth Telephone Company, Application Docket No. 97564, at p.3.

 The FCC likewise granted approval despite Mobilfone's objections, holding that Mobilfone failed to make out a prima facie case that Commonwealth would charge non-competitive rates, and that this issue was premature because Commonwealth had not yet filed a rate schedule with the PUC.

 DISCUSSION

 Antitrust immunity is not to be ...


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