Full opinion text
ORDER FOLSOM, District Judge. TABLE OF CONTENTS: ORDER ON DEFENDANTS’ MOTION TO DISMISS SECTION PAGE I. Introduction.518 II. 12(b)(6) Standard.518 III. The Telecommunications Act of 1996 .519 IV. Overview of Plaintiffs Complaint.519 V. Monopolization: Prevalent Legal Standards.521 VI. The First Prong of Grinnell is Satisfied.522 VII.The Intersection of Antitrust Liability and Telecommunications Regulation: Defendant’s Most Sweeping Argument for Dismissal.523 VIII.Monopolization: Analysis of Plaintiffs Allegations of Exclusionary Conduct Falling Into Categories Not Addressed in Trinko.527 IX. Monopolization: Refusals to Deal.535 X. Essential Facilities .539 XI. Attempted Monopolization.541 XII. Monopoly Leveraging.542 XIII. Tying.543 XIV. Subject Matter Jurisdiction and the Breach of Contract Claim.548 XV. Subject Matter Jurisdiction and the § 251 Claim.550 XVI. Telecommunications Act § 202 .554 XVII. Telecommunications Act § 222 .556 XVIII. RICO.557 XIX. Filed Tariff Doctrine.563 XX. Lanham Act.564 XXI. Conclusion.566 Before the Court is Defendants’ Motion to Dismiss. (Doc. No. 7). A hearing was held on this motion April 8, 2004. After considering the motion and all subsequent briefing thereto, and the applicable law, the Court grants in part and denies in part. Defendants’ motion is GRANTED as to A) Plaintiffs Essential Facilities claim (Count No. 2), B) Breach of Contract claim (Count No. 11), and C) Telecommunications Act claims (Count Nos. 8, 9, and 10). Plaintiffs Essential Facilities Claim is DISMISSED with prejudice. By contrast, Plaintiffs “Breach of Contract” and Telecommunications Act claims are DISMISSED without prejudice to replead-ing. The Court draws special attention to the Tying claim. (Count No. 5). As explained in Part XIII, E.4, infra, Defendants’ motion is denied as to the Tying claim with a tying market defined as DSL service. Through its use of the disjunctive word “alternatively” Plaintiffs Complaint indicates that an alternative market for broadband internet access need not be considered. So as to avoid any confusion, Plaintiffs Tying claim involving a tying market for broadband internet access is DISMISSED without prejudice to re-pleading. If Plaintiff chooses to replead any of the claims which are being dismissed without prejudice, it shall do so within thirty (30) days of the entry of this Order. On all other claims, Defendants’ motion is DENIED. Defendants urge dismissal of the state law claims if the federal causes of action fail. Not all of the federal causes of action having been found to fail, the state law claims receive no discussion in the Court’s analysis. I. INTRODUCTION SBC Communications, Inc. (hereinafter referred to with its subsidiaries as “Defendant” or “Defendants”) filed its Motion to Dismiss on November 24, 2003. (Doc. No. 7). Plaintiff filed its Response on January 6, 2004. (Doc. No. 22). On January 13, 2004, the Supreme Court handed down its decision in Verizon Communications., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) (hereinafter, “Trinko ”). Justice Scalia delivered the Court’s Opinion; Justice Stevens authored a concurrence joined by Justices Souter and Thomas. Trinko is a landmark case. In this order, the holding and implications of Trinko will be discussed at length. Briefly, the Court said that consumers could not make an antitrust claim against Verizon, the nation’s largest regional bell operating company (“RBOC”), because it allegedly violated a requirement to share its network with rivals, as required by the 1996 Telecommunications Act. The linchpin of the Trinko opinion was the issue of anticompetitive intent. There are obvious parallels between the issues the Supreme Court addressed in Trinko and the issues presented by the case at bar. Not surprisingly, in the briefs filed after the Supreme Court handed down its opinion, Defendants are emphatic that Trinko compels the conclusion that dismissal is warranted. Plaintiff is equally emphatic that Trinko bears only a facial similarity to the instant set of facts. At the April 8 hearing, arguments addressing the impact of Trinko occupied nearly all of the time allotted to the motion to dismiss. II. 12(b)(6) STANDARD When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must take the well-pleaded factual allegations of the complaint as true. “All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor.” Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir.2001). “Given the Federal Rules’ simplified standard for pleading, [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quotation omitted). Motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted. See Southern Christian Leadership Conference v. Supreme Court, 252 F.3d 781, 786 (5th Cir.2001). “However, ‘eonclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.’ ” Id. (quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993)). A plaintiff need not plead its antitrust claims with particularity. See MCM Partners, Inc. v. Andrews-Bartlett & Assocs., 62 F.3d 967, 976 (7th Cir.1995) (“an antitrust plaintiff need not include ‘the particulars of [its] claim’ to survive a motion to dismiss”) (citations omitted). Fed. R. Civ. P. 8(a), requiring plaintiff to provide a short and plain statement of its claim showing that it is entitled to relief, “applies with equal force in antitrust cases.” Delaware Health Care, Inc. v. MCD Holding Co., 893 F.Supp. 1279, 1284 (D.Del.1995). The Supreme Court has stated, “in antitrust cases, where the proof is largely in the hands of the alleged conspirators, dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.” Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (citations and internal quotations omitted). III. THE TELECOMMUNICATIONS ACT OF 1996 To further its local-competition goal, the Telecommunications Act imposes duties on incumbent local exchange carriers (“ILECs”) to provide access to their facilities and equipment to competing carriers. 47 U.S.C. § 251. More particularly, in § 251(a) and (b), the 1996 Act imposes on every telecommunications carrier an affirmative duty to interconnect with other carriers, to follow stated rules regarding resale, and to provide nondiscriminatory access to telephone numbers and operator services, telephone poles, ducts, conduits, and rights-of-way. Id. § 251(a), (b). Under § 251(c), the incumbent local exchange carrier bears additional duties, including the duty to negotiate interconnection agreements with any new carrier so requesting, to provide access to its network elements on an unbundled basis, to offer its retail telecommunications services for resale at wholesale rates, and to provide for collocation. Id. § 251(c). Section 252 governs negotiation and arbitration of interconnection agreements. Id. § 252. Agreements voluntarily made may be entered into without regard to the specific duties imposed by § 251(b) and (c). Section 252 identifies the procedure for agreements reached through mandatory arbitration, which are not exempted from the requirements outlined in § 251. In short, §§ 251 and 252 of the 1996 Act command incumbent local exchange carriers to interconnect with and assist new would-be competitors — obligations that telecommunications carriers did not previously have and would not have had under a free-market regime. IY. OVERVIEW OF PLAINTIFF’S COMPLAINT A. Plaintiffs Business Model 1. Introduction Founded in 1998, Z-TEL (hereinafter, “Plaintiff’) is a Tampa, Florida based competitive local exchange carrier (hereinafter, “CLEC”). Plaintiffs business model has two main parts. 2. Basic Services First, Plaintiff is engaged in the business of repackaging and reselling telecommunications services provided by incumbent local exchange carriers (“ILECs”), such as Defendant. To perform this aspect of its business, Plaintiff leases access to the essential portions of Defendant’s network. The capital investment in this fixed asset is so immense that it is practically infeasible to duplicate. It naturally and logically follows that access to the network is essential if competition in the market for retail telecommunications services is to ensue. In the Telecommunications Act of 1996, Congress required network sharing with rivals. At this point some terminology is in order. “Switches” at a central office route incoming calls based on the number dialed, taking the place of telephone operators who manually connected a caller with the recipient of the call. When a call is made to a customer not connected directly to the caller’s central office, the call is transported from the caller’s central office to the intended recipient’s central office. “Transport” refers to the transmission facilities that make this connection possible, including hard assets such as telephone poles, conduits, ducts, and rights of way. If the central offices are not directly connected by transport, then the call is transported to one or more “tandem switches,” which are generally contained in intermediary central offices that join central offices and allow a call to eventually be transported to the intended recipient’s central office, where it is then connected to the recipient’s local loop. “Operations support systems” are the services and equipment necessary to operate, maintain, and repair switches, transport facilities, and tandem switches. 3. Enhanced Services Second, the seemingly more dynamic aspect of Plaintiffs business consists of its “enhanced services” such as voice mail that may be accessed over the Internet, “find me” call-forwarding, which directs calls to multiple numbers when the, first number dialed is not answered, and a unified voice-recognition messaging service that allows subscribers, simply by using their voice, to make calls or retrieve contact information from the email program used on their personal computer. Plaintiff first explains that Defendant does not offer these services. Plaintiff further explains that Defendant is hostile to the provision of enhanced services by others because (unlike the basic services described in Part IV, A.2, supra) enhanced services represent a salient marketplace opportunity to earn supra-competitive profits. 4. Baseline Complaint As will be explained immediately below, Plaintiff cannot provide most of these enhanced services without access to Defendant’s Advanced Intelligent Network (“AIN”). Plaintiff asserts that access is technologically feasible and can be provided without affecting Defendant’s ability to serve its own customers. B. Plaintiffs Baseline Complaint Plaintiffs baseline complaint is that Defendant has denied Plaintiff (and other competitors) access to the AIN. “To compete in the enhanced services market, Z-TEL needs to interconnect its software databases and network with SBC’s AIN facilities, including SBC’s AIN and signaling databases.” (Doc. No. 1, p. 16). In addition, Plaintiff briefly summarizes the following instances of allegedly wrongful conduct. Plaintiff maintains that Defendant has: 1) Completely denied access to and interconnection with essential network facilities that are required to provide customers enhanced services; 2) Completely denied access to and interconnection with essential network facilities that are required to provide customers basic local service; 3) Barred customers who use its DSL internet service from switching to Plaintiff or any other competitor; 4) Refused to allow its essential facilities to be used for the provision of local toll calls, despite express state and federal regulatory orders to do so, thereby requiring Plaintiff to purchase unnecessary additional facilities from long-distance carriers at a cost above that which is economically feasible; 5) Deliberately failed to provide timely information about customers who terminate their service with Plaintiff; 6) Deliberately supplied false bills to Plaintiff for items it has not ordered or received, or at rates expressly rejected by state agencies; 7) Embarked on a malicious public campaign of disparagement, misrepresenting the products and services that Plaintiff and other competitors provide to the public; and (Id, p. 3-4). 8) Abused government processes. (Id., p. 83). Y. MONOPOLIZATION: PREVALENT LEGAL STANDARDS A. Grinnell’s Two-Pronged Test A monopolization claim has two elements: 1) the possession of monopoly power in the relevant market; and 2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). “Monopoly power is understood as ‘the power to control prices or exclude competition,’ ” Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d 307, 315 (5th Cir.2000) (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)), reh’g denied, 2000 U.SApp. LEXIS 4258 (5th Cir.2000). “To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.” Trinko, at 879. B. Product Markets and Geographic Markets The first step in any action brought under § 2 of the Sherman Act is for the plaintiff to define the relevant product and geographic markets in which it competes with the alleged monopolizer, and with respect to the monopolization claim, to show that the defendant, in fact, possesses monopoly power. See, e.g., Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 782 (6th Cir.2002); see also Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 268-69 (2d Cir.1979). In ascertaining the relevant product market, courts consider the extent to which the seller’s product is “interchangeable in use” and the degree of “cross-elasticity of demand between the product itself and substitutes for it.” Apani Southwest, Inc. v. Coca-Cola Enters., 300 F.3d 620, 626 (5th Cir.2002); see also C.E. Servs., Inc. v. Control Data Corp., 759 F.2d 1241, 1245 (5th Cir.1985) (citing Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510(1962)). A geographic market is defined as an “area of effective competition.” Apani 300 F.3d at 626 (citing Jim Walter Corp. v. Federal Trade Com., 625 F.2d 676, 682 (5th Cir.1980).) This is the locale in which consumers of a product or service can turn to for alternative sources of supply. Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1016 (6th Cir.1999). C. Two Ways of Demonstrating That Defendant Holds Monopoly Power There are two ways to establish the first element, that is, that the defendant holds monopoly power. The first is by presenting direct evidence “showing the exercise of actual control over prices or the actual exclusion of competitors.” Id. (citing Byars v. Bluff City News Co., 609 F.2d 843, 850 (6th Cir.1979)). The second is by presenting circumstantial evidence of monopoly power by showing a high market share within a defined market. See Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 196-97 (1st Cir.1996); Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1434 (9th Cir.1996). D. Exclusionary Conduct Defined: An Overview The indeterminate nature and logic of “exclusionary conduct” will be discussed at length in Part VIII, C., infra. In this section and the next, the Court offers only a brief overview. Modern monopolization litigation has focused on four types of conduct. The first genre concerns predatory pricing. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) (noting the “general implausibility of predatory pricing”). The second genre concerns product innovation. See Northeastern Tel. Co. v. Am. Tel. & Tel. Co., 651 F.2d 76 (2d. Cir.1981) (holding that deliberate efforts to create incompatibility with a rival’s products without offering performance enhancements or cost reductions for the monopolist’s products might be actionable). The third genre concerns refusals to deal, including denials of access to essential facilities. See Trinko. The fourth genre concerns monopoly leveraging. See Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 479 n. 29, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (“The Court has held many times that power gained through some natural and legal advantage such as a patent, copyright, or business acumen can give rise to liability if ‘a seller exploits his dominant position in one market to expand his empire into the next.’ ”) (quoting Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 611, 73 S.Ct. 872, 97 L.Ed. 1277 (1953)). Exclusionary conduct is conduct, other than competition on the merits or restraints reasonably necessary to competition on the merits, that reasonably appears capable of making a significant contribution to creating or maintaining monopoly power. Taylor Publ’g Co. v. Jostens Inc., 216 F.3d 465, 475 (5th Cir.2000). In Steams Airport Equip. Co. v. FMC Corp., the Fifth Circuit further explained: Generally, a finding of exclusionary conduct requires some sign that the monopolist engaged in behavior that — examined without reference to its effects on competitors — is economically irrational. When there is no other possible explanation for an action, there is a strong inference that it was taken for the purpose of harming competitors rather than otherwise advancing the monopolist’s business. 170 F.3d 518, 523 (5th Cir.1999). In a Sherman Act § 2 case, only a thorough analysis of each fact situation will reveal whether the monopolist’s conduct is unreasonably anti-competitive and thus unlawful. Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 467, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (“Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law. This Court has preferred to resolve antitrust claims on a case-by-case basis, focusing on the ‘particular facts’ disclosed by the record.”). E. Anticompetitive Conduct Takes Numerous Forms “ ‘Anticompetitive conduct’ can come in too many different forms, and is too dependent upon context, for any court or commentator ever to have enumerated all the varieties.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1087 (D.C.Cir.1998) (reversing in part the district court’s dismissal of complaint and holding that radio station’s claim that defendants made misrepresentations to advertisers and the government in order to protect its monopoly stated § 2 Sherman Act claim). See also Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 784 (6th Cir.2002) (quoting Caribbean Broad. Sys.). VI. THE FIRST PRONG OF GRINNELL IS SATISFIED A. Plaintiffs Monopolization Claim Plaintiffs Monopolization claim (Count One) reads as follows: SBC has monopoly power in both the basic local and enhanced services markets in each relevant geographic market and in the entirety of the SBC Region. Among other things, SBC owns and controls the only ubiquitous physical local telecommunications and enhanced services network within the SBC Region. (Doc. No. 1, p. 36, ¶ 97) SBC has engaged in the anticompetitive conduct described above with the specific intent to maintain and extend its monopoly power and position in the basic local services and enhanced services markets. SBC’s conduct has delayed and prevented Z-TEL’s entry into these markets in one or more relevant geographic markets. SBC continues to dominate these markets through exclusionary conduct, to the detriment of consumers and competition. (Id., ¶ 98). B. Defendant Possesses Monopoly Power 1. Product Market The relevant product market encompasses the exchange and sale of 1) basic local and 2) enhanced services telephony services. 2. Geographic Market Where products are sold nationwide and transportation costs are insignificant, courts frequently define the geographic market as the entire nation. See Brown Shoe Co. v. United States, 370 U.S. 294, 336-37, 82 S.Ct. 1602, 8 L.Ed.2d 510 (1962) (“[Although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.”); see also Apani Southivest, Inc. v. Coca-Cola Enters., 300 F.3d 620, 626 (5th Cir.2002) (quoting Brown Shoe). In the case at bar, the geographic market reaches the full scope of Defendant’s service region. This service region includes many major population centers in the United States. 3.Defendant Offers No Resistance to Plaintiffs Allegation of Monopoly Power Defendant’s first argument in support of its motion to dismiss is captioned “Z-TEL Has Failed to Allege that Defendants Engaged in Exclusionary Conduct in Violation of Section 2 of the Sherman Act.” (Doc. No. 7, p. 8). Since Defendant offers no resistance to Plaintiffs allegation of monopoly power, the Court finds the first element of Grinnell satisfied. The viability of Plaintiffs monopolization claim (Count One) therefore depends on the appropriate characterization of the allegedly anticompetitive conduct attributable to Defendant. VII. THE INTERSECTION OF ANTITRUST LIABILITY AND TELECOMMUNICATIONS REGULATION: DEFENDANT’S MOST SWEEPING ARGUMENT FOR DISMISSAL A. Defendant Attacks the Vitality of Antitrust Liability in This Area of Law As an initial matter, the Court must address an issue at the intersection of antitrust liability and telecommunication regulation. Defendant relies on Cavalier Tel., LLC v. Verizon Va., Inc., 330 F.3d 176 (4th Cir.2003), pet’nfor cert. denied by Cavalier Tel., LLC v. Verizon Va., Inc., — U.S. -, 124 S.Ct. 1144, 157 L.Ed.2d 1041 (Jan. 20, 2004) and Goldwasser v. Ameritech Corp., 222 F.3d 390 (7th Cir.2000) for the proposition that antitrust liability is highly circumspect in light of the regulatory framework enacted by Congress in the 1996 Telecommunications Act. (Doc. No. 7, p. 8-10). Defendant maintains that Plaintiffs allegations are “indistinguishable” from those found unavailing as a matter of law in these two cases. Id. at 8. In addition, on June 28, Defendant submitted a notice of supplemental authority (Doc. No. 155) bringing to the Court’s attention a recent opinion from the Eleventh Circuit, Covad Communications Co. v. BellSouth Corp., 374 F.3d 1044 (11th Cir.2004), 2004 U.S.App. LEXIS 12861. At the hearing, Plaintiff loudly resisted this argument by directing the Court to the 1996 Telecom Act’s Savings Clause, Section 601(b)(1): “Nothing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.” (See also Doc. No. 22, p. 4). B. Defendant’s Argument In its Motion to Dismiss, Defendant declares that all of Plaintiffs § 2 claims fail because Plaintiff fails to sufficiently allege exclusionary conduct. [A]llegations like those asserted by Z-TEL fail to state a claim under Section 2 because the antitrust laws do not require firms, including lawful monopolists, to dismantle themselves for the benefit of competitors — which is exactly what Z-TEL demands. (Doc. No. 7, p. 8). On the opening page of its Reply, Defendant is emphatic, “Trinko definitely bars all of Z-TEL’s antitrust claims related to disputes over access to defendants’ local telephone networks.” (Doc. No. 29, p. 1). C. Plaintiffs Argument In its Sur-Reply, Plaintiff explains: Of course, antitrust law has long recognized that a monopolist can violate ‘established antitrust standards’ in a variety of ways, including the refusal to deal and essential facilities doctrine that the plaintiff relied on in Trinko. But here Z-TEL has alleged numerous forms of exclusionary conduct, apart from these two doctrines. (Doc. No. 37, p. 2). Plaintiff directs the Court to Exhibit A of its Sur-Reply. Exhibit A is a summary comparison of the factual allegations at issue in Trinko and those facts alleged in the case at bar. D. Trinko Addressed the Scope of its Holding In Trinko’s introductory paragraph, the Supreme Court explained, “In this case we consider whether a complaint alleging breach of the incumbent’s duty under the 1996 Act to share its network with competitors states a claim under § 2 of the Sherman Act, 26 Stat 209.” 124 S.Ct. at 875. In addition, the Court spoke at length about the antitrust Saving Clause: Section 601(b)(1) of the Telecommunications Act of 1996 (1996 Act), Pub.L. No. 104-104, 110 Stat. 56, is an antitrust-specific saving clause providing that nothing in the Act or the amendments made by the Act shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws. 110 Stat. 143, 47 U.S.C.S. § 152, note. This bars a finding of implied immunity. The saving clause preserves those claims that satisfy established antitrust standards. But just as the 1996 Act preserves claims that satisfy existing antitrust standards, it does not create new claims that go beyond existing antitrust standards; that would be equally inconsistent with the saving clause’s mandate that nothing in the Act modify, impair, or supersede the applicability of the antitrust laws. Trinko, at 878 (citations omitted). E. Defendant’s Reliance on Goldwasser Is Misplaced 1. The First Section of Goldwasser Successfully Anticipated Arguments Found to be Availing in Trinko In Goldwasser, a class action, the plaintiff consumers alleged that the defendant, a local telephone service provider, improperly used its monopoly power to engage in exclusionary practices which prevented competitors from entering the market. For analytical purposes, the Court will divide the structure of Goldwas-ser into two (2) sections. In the first part of the opinion, the Seventh Circuit held that, while the plaintiffs had standing to assert their antitrust claims, the plaintiffs failed to allege any wrongful conduct independent of defendant’s alleged failure to comply with the requirements of the 1996 Act. Only if Section 2 somehow incorporates the more particularized statutory duties the 1996 Act has imposed on ILECs like Ameritech would Ameritech’s alleged failure to comply with the 1996 Act be, in itself, also an antitrust violation. 222 F.3d at 396. It is clear that in the first part of Gold-wasser, the Seventh Circuit successfully anticipated the arguments which were adopted four years later by the Supreme Court in Trinko. 2. The Second Section of Goldwasser Is Dissonant With the Holding of Trinko In the second part of Goldwasser, the Seventh Circuit was clear. “The 1996 Act is, in short, more specific legislation that must take precedence over the general antitrust laws, where the two are covering precisely the same field.” 222 F.3d 390, 401 (7th Cir.2000). In Trinko, the Supreme Court held to the contrary. “[T]he 1996 Act preserves claims that satisfy existing antitrust standards...” Trinko, at 878. Moreover, Trinko does not admit to the proposition that the 1996 Act displaces the Sherman Act, even when the two are covering precisely the same field. To the opposite, the principal holding of Trinko rests on the Supreme Court’s conclusion that Verizon’s conduct respecting network access did not usefully speak to its monopolistic aspirations. The complaint does not allege that Verizon voluntarily engaged in a course of dealing with its rivals, or would ever have done so absent statutory compulsion. Here, therefore, the defendant’s prior conduct sheds no light upon the motivation of its refusal to deal— upon whether its regulatory lapses were prompted not by competitive zeal but by anticompetitive malice. The contrast between the cases is heightened by the difference in pricing behavior. In Aspen Skiing, the defendant turned down a proposal to sell at its own retail price, suggesting a calculation that its future monopoly retail price would be higher. Verizon’s reluctance to interconnect at the cost-based rate of compensation available under § 251(c)(3) tells us nothing about dreams of monopoly. Trinko, at 879-880 (emphasis added) (citations omitted). In the case at bar, Plaintiff seeks to show that Defendant voluntarily shared its network before the enactment of the 1996 Act. This argument will be more fully addressed in Part IX, D. 2., infra. For present purposes, the Court simply notes that, as a matter of logic, if an antitrust plaintiffs contention of voluntary (i.e., pre-statutory compulsion) network sharing is substantiated, a viable cause of action may proceed in harmony with Trinko. The second part of Goldwasser would preclude this possibility. F. Cavalier is Distinguishable 1. Cavalier Anticipated Arguments Later Adopted in Trinko In Cavalier Tel., LLC v. Verizon Va., Inc., 330 F.3d 176 (4th Cir.2003), the plaintiff, a competitive local exchange carrier, alleged that the defendant, an incumbent local exchange carrier, deliberately created problems in the implementation of the interconnection agreement to .exclude the plaintiff as a competitor. Id. at 179-181 (detailing seven major problematic areas alleged by the plaintiff). The Fourth Circuit determined that the district court properly granted the defendant’s motion to dismiss. The Court’s reasoning was that the conduct alleged would not, independent of the Telecommunications Act of 1996, violate duties imposed under the Sherman Act. Thus, when we focus on the conduct alleged by Cavalier in the complaint before us to determine whether it amounts to breaches of duties imposed for the first time and only by the Telecommunications Act, we conclude that the conduct alleged would not, independent of the Telecommunications Act, violate duties imposed under the Sherman Act. Id. at 190. In this respect, Cavalier perfectly anticipates the arguments adopted by the Supreme Court in Trinko. However, for the reasons explained immediately below, Cavalier is inapposite to the facts in the case at bar. 2. The Plaintiff in Cavalier Alleged Only Breaches of Duties That Did Not Exist Prior to the Enactment of the Telecommunications Act of 1996 In Cavalier, the court was clear, “Cavalier’s complaint alleges only breaches of duties that did not exist prior to the enactment of the Telecommunications Act....” Id. The reasoning articulated in the immediately foregoing section concerning Goldwasser v. Ameritech Corp. is equally applicable here. The Court will briefly review. If Plaintiffs contention of voluntary (i.e., pre-statutory compulsion) network sharing is substantiated, a viable antitrust claim could stand in harmony with Trinko. Cavalier is in harmony with Trinko. However, over a relevant range, Cavalier is inap-posite to the case at bar since Plaintiff seeks to demonstrate violations of duties which did exist prior to the enactment of the 1996 Act. G. Covad is Distinguishable In Covad Communications Co. v. Bell-South Corp., the plaintiffs’ claims were grouped into three forms of alleged anti-competitive conduct: refusal to deal, essential facilities, and price squeezing. The refusal to deal claim was dismissed because the relationship between the parties was mandated by the Telecommunications Act; it was not a voluntary agreement between customers. The essential facilities claim was dismissed because access to the telephone provider’s infrastructure could be compelled under the Telecommunications Act. However, the price squeezing claim survived because it was based on traditional antitrust doctrine and was not specifically barred by judicial precedent outlining the relationship between the Telecommunications Act and the Sherman Act. Speaking about the onus placed on ILECs by the 1996 Act, Judge Barkett explained: Trinko, however, treats the interconnection agreement between AT & T and Verizon as a mandatory accord between competitors, not a voluntary agreement between customers. Trinko, 124 S.Ct. at 880. That Verizon also supplies wholesale unbundled network elements at a cost-based rate to AT & T does not, in the Court’s view, make the relationship a non-competitive one. Moreover, Trinko emphasizes the coercive effect of the FTCA on incumbent LECs such as Verizon who — but for the FTCA — would not be required to make their network elements (including OSS) available to third parties such as AT & T. In short, Covad’s refusal-to-deal claims do not survive Trinko and must be dismissed. 374 F.3d 1044, 1049 (11th Cir.2004)2004 U.S.App. LEXIS 12861, *12-13. Regarding the status of Aspen’s refusal to deal doctrine after Trinko, Judge Bark-ett stated, “Trinko now effectively makes the unilateral termination of a voluntary course of dealing a requirement for a valid refusal-to-deal claim under Aspen.” Id. at 1049, 2004 U.S.App. LEXIS 12861, *12. Unlike the plaintiff in Covad, Plaintiff in the case at bar adduces evidence that Defendant shared its network before it was legally required to do so. It follows that Covad is not perfectly apposite precisely because of this distinction in the pleadings. H. Conclusion As a legal matter, Trinko instructs that antitrust liability is live and well in the context of regulated telecommunications. The issue to be decided by this Court is whether or not Plaintiffs complaint sufficiently alleges violations of doctrinally established antitrust standards. VIII. MONOPOLIZATION: ANALYSIS OF PLAINTIFF’S ALLEGATIONS OF EXCLUSIONARY CONDUCT FALLING INTO CATEGORIES NOT ADDRESSED IN TRINKO A. The Court Does Not Adopt Plaintiffs Nomenclature 1.An Area of Potential Confusion As an initial matter, the Court will clear up an area of potential confusion. Plaintiff explains: Z-Tel’s Complaint, therefore, unlike Trinko’s, alleges conduct constituting violations of ‘established antitrust standards’ sufficient to state a claim. It does so under the refusal to deal and essential facilities doctrines that were at issue in Trinko and under general § 2 standard for exclusionary conduct. (Doc. No. 37, p. 3) (emphasis added). 2. The Refusal to Deal Legal Theory The Court declines to adopt Plaintiffs nomenclature., The refusal to deal legal theory will be addressed at length in Part IX, infra. However, for present purposes, the Court notes that this theory is hardly novel. In. United States v. Colgate & Co., the Supreme Court stated the basic rule that “[i]n the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919). 3. The Essential Facilities Legal Theory Essential facilities will be addressed at length in Part X, infra. For present purposes, the Court simply notes that essential facilities is also not a novel legal theory. The former chairman of the Federal Trade Commission, Professor Pitofsky, explains, “[t]he essential facilities doctrine has a long and respected history as part of U.S. antitrust law.” Robert Pitofsky, et al., The Essential Facilities Doctrine Under U.S. Antitrust Law, 70 ANTITRUST L.J. 443, 445 (2002). Essential facilities is a species of refusal to deal. As Professor Hovenkamp explains, the two are close cousins: But the defendant’s duty to deal in the essential facility cases appears to have about the same scope as the defendant’s duty to deal in the Aspen case, where the Court did not rely on the essential facility doctrine. HERBERT HOVENKAMP, FEDERAL ANTITRUST Policy, The Law of Competition and its Practice 307 (2d ed.1999) (hereinafter, “Hovenkamp”). In Parts IX and X, infra, the Court will devote considerable attention to Trinko and its impact on the doctrines of 1) refusals to deal and 2) essential facilities. However, in its analysis, the Court does not elevate these two types of exclusionary conduct above the level of importance assigned to those types of exclusionary conduct Plaintiff refers to as “general.” The discussion immediately below is devoted to an analysis of Plaintiffs allegations of exclusionary conduct falling into certain categories not addressed in Trin-ko. The distinction is simply for purposes of methodological convenience. B. Plaintiff Alleges Four Clusters of Exclusionary Conduct 1 Product Disparagement Through Public Advertising Plaintiffs allegations concerning defamation and disparagement are contained in paragraphs 89-91. (Doc. No. 1, p. 34). The crux of these allegations are that Defendant refers to itself “as a real phone company” while mockingly referring to Plaintiff in public advertising as a “flashy” imposter. 2. Abuse of Government Processes Plaintiffs abuse of government process allegations are contained in paragraphs 85-88 of the Complaint. (Doc. No. 1, p. 33-34). The gestalt of these allegations is that Defendant seeks to force competitors to expend time and resources contesting Defendant’s noncompliance with the orders of state utility commissions. Plaintiff claims that this conduct is not shielded by Noerr-Pennington. Id. at p. 34. 3. Provision of Faulty Line Loss Information Plaintiffs allegations concerning the provision of faulty “line loss” information are presented in paragraphs 70-78 of its Complaint. (Doc. No. 1, p. 27-29). Plaintiff relies on Defendant’s operational support systems to inform it when one of Plaintiffs customers switches service providers. Plaintiff alleges, “Customer records were mislabeled at rates in excess of 60% in some months and were not timely delivered under SBC’s own standards at rates approaching 90% in several months.” Id. at p. 28. “Between December 2000 and February 2002, Z-TEL complained to SBC about problems with the line loss notification more than 75 times.” Id. Plaintiff quotes a Bank of America Securities report for the proposition that this conduct reflects a deliberate strategy on Defendant’s part to increase the “churn rate” of its rivals. Id. at p. 27. 4.Allegations of 1) Increased Costs and 2) Harm to Reputation Through Defendant’s Submission of False Bills Plaintiffs allegations concerning Defendant’s habitual refusal to provide 1) accurate billing for the leased network facilities and 2) call records are contained in paragraphs 79-84 of the Complaint. (Doc. No. 1, p. 30-32). “As a result, Z-TEL had literally hundreds of billing disputes with SBC and was forced to expend undue resources on deciphering SBC’s bills.” Id. at p. 30. Plaintiff quotes one of Defendant’s former employees who states that he was instructed to prepare false bills. Id. at p. 32. C. Analysis 1. The Second Prong of Grinnell: the Indeterminate Nature and Logic of Exclusionary Conduct a. The Supreme Court Has Recognized the Difficulty in Differentiating 1) Robust Competition from 2) Conduct With Long-Term Anti-competitive Effects On at least two occasions, the Supreme Court has acknowledged the “difficulty” manifest in its exclusionary conduct doctrine. In Coppenveld Corp. v. Independence Tube Corp., the Court stated: In part because it is sometimes difficult to distinguish robust competition from conduct with long-run anticompetitive effects, Congress authorized Sherman Act scrutiny of single firms only when they pose a danger of monopolization. Judging unilateral conduct in this manner reduces the risk that the antitrust laws will dampen the competitive zeal of a single aggressive entrepreneur. 467 U.S. 752, 767, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). In Spectrum, Sports v. McQuillan, the Court further explained: [T]his Court and other courts have been careful to avoid constructions of § 2 which might chill competition, rather than foster it. It is sometimes difficult to distinguish robust competition from conduct with long-term anticompetitive effects; moreover, single-firm activity is unlike concerted activity covered by § 1, which ‘inherently is fraught with anti-competitive risk.’ 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (citing Coppenveld). b.The Aspen Formulation In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., the Supreme Court defined exclusionary conduct as that which 1) tends to impair the opportunities of rivals, but also 2) either does not further meritorious competition or does so in an unnecessarily restrictive way. 472 U.S. 585, 605 n. 32, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) (quoting III Phillip ÁREeda & Donald F. Turner, Antitrust Law: An Analysis of Antitrust Principles AND Their Applioation 78 (1978)). c. The Kodak Formulation In Eastman Kodak Co. v. Image Technical Servs., the Supreme Court articulated a somewhat different formulation of exclusionary conduct. “The second element of a § 2 claim is the use of monopoly power ‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’” 504 U.S. 451, 482-83, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 92 L.Ed. 1236 (1948)). d. The ‘Business Purpose’ Formulation Another genre of formulations stresses that a firm does not engage in monopolization if its conduct is motivated by “valid business reasons,” a “normal business purpose,” or “legitimate competitive reasons.” See Kodak, 504 U.S. 451, 483, 112 S.Ct. 2072 (“Liability turns, then, on whether ‘valid business reasons’ can explain Kodak’s actions.”); Id. at n. 32, 112 S.Ct. 2072 (“It is true that as a general matter a firm can refuse to deal with its competitors. But such a right is not absolute; it exists only if there are legitimate competitive reasons for the refusal.”); Aspen, 472 U.S., at 608, 105 S.Ct. 2847 (“[Defendant] did not persuade the jury that its conduct was justified by any normal business purpose.”). e. Fifth Circuit Doctrine As mentioned in Part V. D., supra, the two hallmark Fifth Circuit cases defining exclusionary conduct are Taylor Publ’g Co. v. Jostens Inc., 216 F.3d 465 (5th Cir.2000) and Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518 (5th Cir.1999). In Taylor, the court spoke in greater detail than it did in Stearns Airport. ‘Exclusionary’ conduct is conduct, other than competition on the merits or restraints reasonably ‘necessary’ to competition on the merits, that reasonably appears capable of making a significant contribution to creating or maintaining monopoly power. Exclusionary comprehends at the most behavior that not only (1) tends to impair the opportunities of rivals, but also (2) either does not further competition on the merits or does so in an unnecessarily restrictive way. To determine whether conduct is exclusionary, we look to the proffered business justification for the act. 216 F.3d, at 475 (citations omitted). 2. Product Disparagement a. Defendant’s Argument Z-Tel’s claims of ‘defamation and disparagement’ (Comply 89-91) similarly fails to identify conduct that could form the basis for a claim under Section 2. In fact, any such misrepresentations are ‘presumptively de minimis’ absent ‘cumulative proof that the representations were clearly false, clearly material, clearly likely to induce reasonable reliance, made to buyers without knowledge of the subject matter, continued for prolonged periods, and not readily susceptible to neutralization or other offset by rivals.’ Z-TEL stumbles at the very first hurdleit has failed even to identify an allegation that can be called false. (Doc. No. 7, p. 16) (citations omitted). b. Advertising That Creates Barriers to Entry May Constitute Exclusionary Conduct In Berkey Photo, Inc. v. Eastman Kodak Co., the court stated, “A monopolist is not forbidden to publicize its product unless the extent of this activity is so unwarranted by competitive exigencies as to constitute an entry barrier.” 603 F.2d 263, 287 (2d Cir.1979) (citing American Tobacco Co. v. United States, 328 U.S. 781, 797, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946)). In Phototron Corp. v. Eastman Kodak Co., the Fifth Circuit extrapolated this exact portion of the Berkey holding in reaching the conclusion that, “[advertising that creates barriers to entry in a market constitutes predatory behavior of the type the antitrust laws are designed to prevent.” 842 F.2d 95, 100 (5th Cir.1988). Immediately thereafter, the court qualified this statement: “[wjithout evidence of how advertising in the whole-sale photofinishing industry can act as a barrier to Photo-tron’s participation in the industry, we cannot conclude that Phototron is likely to succeed on this theory of predation.” Id. at 101. c.A Presumption That The Effect on Competition Through Advertising is de Minimis i. Introduction Several opinions ruling on motions for summary judgment frame the legal landscape. Obviously, this Court is not presently considering a motion for summary judgment. However, the following set of cases are overviewed for their doctrinal principles. ii. Hallmark Cases From the Second, Sixth, and Ninth Circuits In National Assoc, of Pharmaceutical Mfrs., Inc. v. Ayerst Labs., the Second Circuit held that “[a] plaintiff asserting a monopolization claim based on misleading advertising must overcome a presumption that the effect on competition of such a practice was de minimis.” 850 F.2d 904, 916 (2d Cir.2003) (citing Berkey, 603 F.2d, at 288 n. 41). In Berkey, the court held as follows with regard to advertising: [I]n its advertising, a producer is ordinarily permitted, much like an advocate at law, to bathe his cause in the best light possible. Advertising that emphasizes a product’s strengths and minimizes its weaknesses does not, at least unless it amounts to deception, constitute anticompetitive conduct violative of § 2. Id. at 287-88 (footnote omitted). In American Professional Testing Serv. v. Harcourt Brace Jovanovich Legal & Prof'l Publ’ns, the Ninth Circuit also adopted a de minimus presumption and laid out a six-part test that a plaintiff must satisfy to rebut the presumption: the statements at issue must be (1) clearly false; (2) clearly material; (3) clearly likely to induce unreasonable reliance; (4) made to unsophisticated parties; (5) continued for long periods; and (6) not readily cured by rivals. 108 F.3d 1147, 1152 (9th Cir.1997). In American Professional, the court was clear that all of these factors must be met for the case to survive summary judgment. In Ayerst, the Second Circuit also discussed this test favorably, but it is unclear whether the court thought each requirement was mandatory. 850 F.2d 904, 916-17 (2d Cir.1988). In Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Board of Podiatric Surgery, Inc., the Sixth Circuit rejected the claim of the plaintiff, a podiatrists’ certification association, that the defendant’s alleged false advertising could support a claim under Section 2. 323 F.3d 366, 369 (6th Cir.2003). The court noted that to survive summary judgment on the second prong of a monopolization claim premised primarily on allegedly false speech or advertising, the plaintiff is required to rebut a presumption that the impact on competition was de minimis, by showing two additional facts: “(1) the advertising was clearly false, and (2) it would be difficult or costly for the plaintiff to counter the false advertising.” Id. at 371. Concluding that the plaintiff had failed to meet either showing, the court affirmed the grant of summary judgment to the defendant. Id. at 372. iii. Aldridge v. Microsoft In David L. Aldridge Co. v. Microsoft Corp., Judge Lake was presented with a motion for summary judgment. 995 F.Supp. 728 (S.D.Tex.1998) ( Lake, J.). The product disparagement claim trained on messages found in the Microsoft Windows “help box.” Relying heavily on American Professional, Berkey, and Ay-erst, Judge Lake granted defendant’s motion as to the product disparagement claim since the plaintiff failed to show that “any of the four messages continued for extended periods or that they were not readily susceptible to explanation or neutralization. ...” Id. at 751. d. Organized Deception By A Dominant Firm May Have Anticompeti-tive Conduct Implications When Used Against A Nascent Firm Professors Areeda and Hovenkamp explain: Misrepresentations and organized deception by a dominant firm may have § 2 implications when used against a nascent firm just as it is entering the market. Such a firm has no established customer base and typically lacks the resources to answer the dominant firm’s deception effectively. Of course, even honest advertising by a dominant firm can deter new entrants, but we virtually always consider honest advertising as competition on the merits. IIIA AREEDA AND HOVENKAMP, ANTITRUST Law, § 782a. e. Plaintiff Fits Areeda and Hoven-kamp’s Description of “A Nascent Firm” The analysis offered by Professors Aree-da and Hovenkamp in the immediately preceding section is an especially good fit to describe Plaintiffs market situation. In Phototron Corp. v. Eastman Kodak Co., the Fifth Circuit was clear that advertising creating barriers to entry in a market constitutes exclusionary conduct. 842 F.2d 95, 100 (5th Cir.1988). On a motion to dismiss, the Court is required to view all allegations in the light most favorable to the non-movant. At this point, the Court cannot say that Plaintiffs product disparagement claim involving false advertising fails as a matter of law. 3. Abuse of Government Processes a. Defendant’s Argument Z-Tel concedes that such litigation efforts were directed at reducing Defendant’s regulatory burdens under the 1996 Act (specifically Defendants’ obligation to provide ‘shared transport,’ see Compl. ¶ 85). And because Defendants have no antitrust duty to unbundle their networks for the benefit of competitors, it violates no duty by attempting to forestall the imposition of such regulatory obligations. (Doc. No. 7, p. 16). b. Noerr-Pennington i. Overview of the Doctrine Noerr-Pennington immunity does not stem solely from the First Amendment; rather, it is inextricably associated with interpretations of the Sherman Act. See Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358 (5th Cir.1983). The Noerr-Pennington doctrine confers immunity to private individuals seeking anticompetitive action from the government. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). See also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (extending Noerr-Pen-nington protection to petitioning activities aimed at state and federal agencies and courts); City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (granting Noerr-Pennington immunity for efforts to influence local governments). Noerr-Pennington immunity applies to any concerted effort to sway public officials regardless of the private citizen’s intent. See Pennington, 381 U.S. at 670, 85 S.Ct. 1585. ii. Defendant Fails to Raise this Argument Plaintiff declares, “[t]his pattern of abusive conduct falls outside any petitioning privilege under the Noerr-Pennington doctrine.” However, Defendant’s Motion to Dismiss does not raise the Noerr-Pen-nington affirmative defense. Accordingly, the Court will not address it. c. An Increasingly Dangerous Threat to Competition Judge Bork has stated, “[pjredation by abuse of governmental procedures, including administrative and judicial processes, presents an increasingly dangerous threat to competition.” RobeRt H. Borr, The ANTITRUST PARADOX 347(1993). d. Defendant’s Argument Is Misplaced First, Defendant claims that it has no antitrust duty to unbundle its network for the benefit of its competitors. Putting aside for the moment Plaintiffs essential facilities claim, there is no doubt that under § 251(c) of the 1996 Act, the incumbent local exchange carrier bears, inter alia, the duty to negotiate interconnection agreements with any new carrier so requesting, to provide access to its network elements on an unbundled basis, to offer its retail telecommunications services for resale at wholesale rates, and to provide for collocation. Second, even if Defendant is correct that no antitrust liability may attach for failing to allow interconnection, it is an entirely different matter if Defendant has “initiated and maintained baseless regulatory proceedings” relating to its 1996 Act duties. (Doc. No. 1, p. 34). Trinko was clear: the simple fact that one has duties under the 1996 Act does not confer a grant of antitrust immunity relating thereto. e. Defendant Does Not Prevail on this Point The Court does not accept Defendant’s assertion that Plaintiffs allegations concerning the initiation of baseless regulatory proceedings fail as a matter of law. 4. Line Loss Information a. Defendant’s Argument Z-TEL complains that it lacks accurate line-loss information, but such information relates only to customers that Z-TEL has already lost (through no alleged fault of Defendants); Z-TEL does not explain how tardy access to such information affects competition. (Doc. No. 7, p. 15) (italics in original). b. Defendant’s Misstates Plaintiffs Complaint In contrast to Defendant’s characterization, Plaintiff explains in some detail how competition is allegedly harmed by Defendant’s conduct concerning the provision of faulty line loss information. First, accurate and timely information on disconnections by customers is necessary for Z-Tel to audit the charges of SBC for the essential facilities that Z-TEL leases because many of these charges are measured on a per-customer basis. Such audits are necessary to ensure that SBC does not charge Z-TEL for facilities used to serve customers who are no longer Z-TEL customers. A second negative consequence to Z-Tel of erroneous and untimely provision of line loss notification relates to customers complaints. Such complaints cause Z-Tel to incur costs in responding to these complaints and damage Z-Tel’s reputation with former, present, and prospective customers. (Doc. No. 1, p. 28). c.Reputation is A Capital Asset Reputation is a very real capital asset to a business firm. RichaRD A. Posnee, ECONOMIC Analysis of Law 230 (1998) (“[R]ep-utation is a basis for inducing others to engage in market or nonmarket transactions with you.”). The crux of this allegation is that Defendant has harmed Plaintiffs reputation in the marketplace. The Court cannot say that, as a matter of law, Plaintiffs allegation of this sort of activity fails to come within the ambit of exclusionary conduct, as that term was defined in Part VIII, C.l, supra. 5. False Billing a. Defendant’s Argument Z-Tel’s claim that Defendant’s bills are inaccurate (see Compl. ¶¶ 79-84) is unconnected to any alleged effect on competition. See also Associated Radio Service Co. v. Page Airways, Inc., 624 F.2d 1342, 1355 (5th Cir.1980) (“[T]he concept of ‘exclusionary’ practice would become totally unmanageable unless the judges are willing... to ignore those practices that seem unlikely to have made a substantial impact upon the achievement, maintenance, or expansion of monopoly power.”). (Doc. No. 7, p. 16). b. Defendant’s Argument is Conclu-sory Plaintiff complains, “Z-TEL had literally hundreds of billing disputes with SBC and was forced to expend undue resources on deciphering SBC’s bills.” (Doc. No. 1, p. 30). Viewed in isolation, Plaintiffs allegation of false billing might not predicate a monopolization claim. However, as explained more fully in Part VIII D., infra, in Continental Ore, the Supreme Court instructed that courts should not tightly compartmentalize the varied factual components of an antitrust case. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). The gestalt of Plaintiffs story is that Defendant undertook a concerted scheme of conduct to disrupt Plaintiffs viability as a competitor. Viewed in combination with Plaintiffs other allegations, the allegation of false billing does not fail to state a claim as a matter of law. D. Aggregation of Separate Instances of Allegedly Exclusionary Conduct 1.Continental Ore Plaintiff cites Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962) for the proposition that the law rejects a tight compartmentalization of the varied factual components of an antitrust case. (Doc. No. 37, p. 8). Professor Hovenkamp advises, “[t]he Supreme Court’s Continental Ore language that proof should not be tightly compartmentalized has been cited numerous times by antitrust plaintiffs, sometime properly, sometime improperly.” II Ajieeda and Hovenkamp, AntitRust Law, § 310c, p. 140-41. In the discussion immediately below, the Court will explain why it aligns with the former rather than the latter. 2. The Broader Context: Claims of Insufficient Evidence This Court first addresses the legal principles which control in the broader context of the adjudication of claims of insufficient evidence. In this context, aggregation is proper when the violation “requires that a certain threshold be met and no claim standing alone is sufficient to meet the threshold.” Id. at 141. Aggregation is improper when cardinality is lacking or a plaintiff fails to prove an element essential to every claim. Id. 3. The Narrower Context: Exclusionary Conduct This Court now turns to the prevalent legal principles governing aggregation of conduct in the narrower context of exclusionary conduct. Professor Hovenkamp explains: In a monopolization case conduct must always be analyzed ‘as a whole.’ A monopolist bent on preserving its dominant position is likely to engage in repeated and varied exclusionary practices. Each one viewed in isolation might be viewed as de minimis or an error in judgment, but the pattern gives increased plausibility to the claim. For example, a monopolist might accidentally file a single baseless infringement suit, but a pattern of such suits indicates wilfulness. Id. at 147. In United States v. Microsoft, the Court concluded that several monopolistic acts considered individually violated Section 2. In addition, Microsoft’s campaign to protect the applications barrier from erosion by network-centric middleware can be broken down into discrete categories of activity, several of which on their own independently satisfy the second element of a § 2 monopoly maintenance claim. But only when the separate categories of conduct are viewed, as they should be, as a single, well-coordinated course of action does the full extent of the violence that Microsoft has done to the competitive process reveal itself. 87 F.Supp.2d 30, 33 (D.D.C.2000) (citing Continental Ore) (rev’d on other grounds by United States v. Microsoft Corp., 253 F.3d 34, 346 U.S.App. D.C. 330 (D.C.Cir.2001)). 4. Conclusion: Plaintiff Alleges a Patterned Course of Action Which the Court Views in the Aggregate The Court views Plaintiffs allegations of the provision of 1) product disparagement, 2) abuse of government processes, 3) provision of faulty line loss information, and 4) false billing as a patterned course of action. Viewed as a whole, these allegations negate Defendant’s contention that Plaintiffs Monopolization claim fails as a matter of law. The Court hastens to add that it passes no judgment on the ultimate validity of these accusations. Defendant is free to question the weight and credibility of the evidence offered in support thereof in a future motion for summary judgment. E. Conclusion: Plain