Full opinion text
MEMORANDUM and ORDER YOHN, District Judge. The Boroughs of Lansdale, Blakely, Catawissa, Duncannon, Hatfield, Kutz-town, Leighton, Mifflinburg, Olyphant, Quakertown, Schuylkill Haven, St. Clair, Watsontown, and Weatherly, Pennsylvania (“the Boroughs”) bring this action against PP & L, Inc., PPL Electric Utilities Corp., PPL Energy Plus, L.L.C., and PPL Generation, L.L.C. (collectively, “PPL”) alleging various antitrust violations and asserting a claim for breach of contracts approved by the Federal Energy Regulatory Commission (“FERC”). Compl. ¶¶ 14-19, 20-22. Defendants assert counterclaims for breach of contract as to all plaintiffs, Counterclaims ¶¶ 19-24 and tortious interference with existing and ongoing contractual relations as to Olyphant, Counterclaims ¶¶ 25-36. Currently pending before the court is defendants’ motion for summary judgment on all counts of plaintiffs’ complaint. For the reasons set forth below, defendants’ motion for summary judgment will be granted almost in its entirety. More specifically, I will grant defendants’ motion for summary judgment on plaintiffs’ claims for violation of § 1 of the Sherman Act, § 2 of the Sherman Act, and § 2 of the Clayton Act, as well as plaintiffs’ claim for breach of contract regarding retail stranded costs. I will grant defendants’ motion for summary judgment on plaintiffs’ breach of contract claim regarding firm power requirements as to the Boroughs of Lansdale, Blakely, Duncannon, Hatfield, Kutztown, Lehighton, Mifflinburg, Olyphant, Quakertown, Schuylkill Haven, St. Clair, Watsontown, and Weatherly. However, defendants’ motion for summary judgment on plaintiffs’ breach of contract claim regarding firm power requirements will be denied as to the Borough of Catawissa. I will also grant defendants’ motion for summary judgment on all claims raised by the Borough of Olyphant and previously litigated to a conclusion in Borough of Olyphant v. PP & L Inc., et al, Civ. No. 03-4023, 2004 WL 1091037, at *1, 2004 U.S. Dist. LEXIS 8958, at *1 (E.D.Pa. May 14, 2004) aff'd Borough of Olyphant v. PPL Corp., 153 Fed.Appx. 80 (3d Cir. 2005). BACKGROUND This case involves the electric power industry in Pennsylvania. This industry is partially regulated by the Federal Energy Regulatory Commission (“FERC”), partially regulated by the Pennsylvania Public Utility Commission (“PUC”), and partially unregulated. In general, FERC regulates the sale of wholesale power and its transmission in interstate commerce and the PUC regulates the sale of retail power in Pennsylvania and its distribution to the ultimate consumer. The two regulatory regimes are considered simultaneously in this ease, primarily because the Boroughs purchased wholesale power from PPL for resale to their retail customers and also competed with PPL for the sale of retail power to other potential retail customers. It is important, however, to understand the basics of how each regime works independently in order to understand how the two interact in the instant case. 1. The PUC and Retail Power in Pennsylvania Historically, electric utilities in Pennsylvania provided three services to customers: the generation, transmission and distribution of electricity. PP & L Industrial Customer Alliance v. Pennsylvania Public Utility Comm’n, 780 A.2d 773 (Pa.Cmwlth. 2001). These services were bundled together and performed by one local utility, which held a monopoly over its service area. Id. Effective January 1, 1997, Pennsylvania adopted the Electricity Generation Customer Choice and Competition Act (“Competition Act”), 66 Pa. Cons.Stat. §§ 2801 et seq., which effectively deregulated the business of generating electricity in Pennsylvania and unbundled the three services. Consumers can now choose to purchase their generation service from electric generation suppliers (“EGS”), other than the local utility previously granted an exclusive franchise. The other two services, transmission and distribution, were not deregulated by the Competition Act. The local utility still remains solely responsible for the transmission and distribution of the electricity. If consumers do not or cannot choose an alternative EGS, a local utility is also required to provide electricity to them as the “provider of last resort” (“POLR”) at a capped price. 66 Pa. Cons.Stat. §§ 2802(16) and 2807(e)(3) (“if a customer does not choose an alternative electric generation supplier, the electric distribution company ... shall acquire electric energy at prevailing market prices to serve that customer and shall recover fully all reasonable costs.”) Those consumers who do choose another EGS continue to pay their local utility for transmission and distribution services, plus a separate charge for the generation service, reflecting the market rate (usually lower than the local utility rate), to the EGS of their choice. The Pennsylvania Legislature recognized that certain costs incurred by local utilities while they were monopolies (and the electricity market was completely regulated) would not be recoverable in a competitive market. See 66 Pa. Cons.Stat. § 2803. These are referred to as “stranded costs.” The General Assembly created the competitive transition cost (“CTC”), 66 Pa. Cons.Stat. § 2808, which would be paid by retail consumers to their local utility (the former monopoly in the area) to reimburse it for the stranded costs. The Competition Act required each Pennsylvania electric utility to file a “restructuring” plan with the PUC, which would explain how the utility expected to comply with the new mandates of the Competition Act. 66 Pa. Cons.Stat. § 2806(d). In addition to reviewing all of the restructuring plans, the Competition Act also assigned to the PUC the responsibility of holding a public proceeding to determine each utility’s retail stranded costs. In summary, rates changed under the Competition Act from a single “bundled” rate for combined services, to “unbundled” rates consisting of three major components: (1) a charge for generation services — that is, electric power supply, either from an EGS or the local utility; (2) charges for transmission and distribution services; and (3) the CTC, for recovery of stranded costs. II. FERC and Wholesale Power in Pennsylvania In 1935, Congress enacted the Federal Power Act (“FPA”), 16 U.S.C. §§ 791a-828c, which established the Federal Power Commission, the predecessor of FERC, “to oversee the wholesale transmission and sale of interstate electric power.” 49 Stat. 838 (1935) (codified as amended at 16 U.S.C. §§ 791a-825r). Since 1935 there have been numerous technological advances which have made it possible to generate electricity more efficiently and to share energy over large regional networks. “It is now possible for power companies to transmit electric energy over long distances at low cost.” New York v. FERC, 535 U.S. 1, 8, 122 S.Ct. 1012, 152 L.Ed.2d 47 (2002) In 1996, FERC recognized the ease of transferring substantial amounts of electricity from region to region, and issued Order No. 888 in an effort to structure an orderly transition to competitive bulk power markets. New York v. FERC, 535 U.S. at 11, 122 S.Ct. 1012 (interpreting Order No. 888, 75 FERC ¶ 61,080). The portion of Order No. 888 relevant to the instant case is that it required, like the Pennsylvania Competition Act to follow, the unbun-dling of generation services from transmission and distribution services. As the Supreme Court explained this provision, the unbundling “requir[ed] each utility to state separate rates for its wholesale generation, transmission, and ancillary services, and to take transmission of its own wholesale sales and purchases under a single general tariff applicable equally to itself and to others.” Id. This effectively opened the market for competition among energy wholesalers because a consumer could now purchase energy from an alternative supplier and have that energy transmitted over the network already in place. Like Pennsylvania’s Competition Act, it permitted the previously monopolistic wholesalers to recover reasonable wholesale stranded costs incurred because of the increased competition for generation services. In order to regulate the price of wholesale power, FERC traditionally required “every public utility [to] file with the Commission ... schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission,” 16 U.S.C. § 824d (c), i.e. the “transmission of electric energy in interstate commerce” and “sale of electric energy at wholesale in interstate commerce.” 16 U.S.C. § 824(b). However: [m]ore recently, in the case of wholesale electricity, FERC has moved to a rate-based market mechanism for pricing electricity. In other words, rates are determined based upon the price obtained when electricity is traded on the market. These rates paid by wholesale buyers remain subject to FERC jurisdiction and review. While utilities do not necessarily file specific rates with FERC prior to selling energy, they sell pursuant to the terms, conditions and formulas established by FERC’s regional wholesale electricity rules. FERC approves those rules in advance of authorizing the wholesale electricity markets to operate. Utilimax.com, Inc. v. PPL Energy Plus, LLC, 273 F.Supp.2d 573, 575-76 (E.D.Pa. 2003). In the instant case, the relevant regional wholesale electricity market established by the FERC is the PJM Interconnection (“PJM”), which covers energy sales in all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and the District of Columbia. Overview of PJM Interconnection, available at http://vnvw.pjm. com/about/glance, html (last visited Apr. 4, 2006). “Pursuant to rules approved by FERC and subject to FERC’s on-going regulation of wholesale electricity markets, PJM coordinates the continuous buying, selling, and delivery of wholesale electricity through various auction markets designed to match supply with demand.” Id. at 576. Many wholesale customers purchase the energy they ultimately resell at retail to end-users through what is called the “installed capacity” (“ICAP”) market. Wholesale customers can buy their necessary power “by any of three methods: (a) acquiring capacity through bilateral contracts with other entities; (b) purchasing capacity credits in the PJM long-term auction market; or (c) purchasing capacity credits in the PJM daily auction market.” Id. FERC regulates each of these purchasing methods. III. The Facts of the Instant Case The Boroughs are municipal corporations organized and existing under the laws of the Commonwealth of Pennsylvania. Compl. ¶ 3; Def. Answer ¶ 3. The Boroughs own and operate electric distribution systems. Id. PPL Corporation is an energy and utility holding company of: (1) PPL Electric Utilities Corporation, a subsidiary that provides electric delivery service in Pennsylvania; (2) PPL Energy Plus, L.L.C., a subsidiary that markets wholesale electricity and acts as an EGS in Pennsylvania; and (3) PPL Generation L.L.C., a subsidiary that owns and operates generating facilities. Compl. ¶ 4; Def. Answer ¶ 4. PPL Electric Utlities Corporation and PPL Energy Plus are wholly owned subsidiaries of PPL Corporation. PI. Exh. 9. Prior to a corporate realignment completed in 2000, PPL Corporation was named PP & L, Inc. Compl. ¶ 4. After the realignment, PPL Electric Utilities Corporation assumed the rights and obligations of PP & L, Inc., which existed under a Settlement Agreement entered into by PP & L, Inc. and the Boroughs, dated January 29, 1998 (“Settlement Agreement”). Def. Answer ¶ 4. Following the passage of the Competition Act, all public utilities in Pennsylvania were required to submit, for the PUC’s review, broad restructuring plans for implementing the deregulation of the energy market. 66 Pa. Cons.Stat. § 2806(d). PPL submitted its restructuring plan to the PUC on April 1, 1997, which included, inter alia, proposed unbundled rates, CTCs and tariff provisions, as well as a proposed stranded cost calculation. Pl. Exh. 15, p. 6. After significant debate before the PUC between PPL. and thirty-six intervening parties regarding the terms of the plan, the PUC adopted an opinion and order which substantially modified PPL’s restructuring plan. Id. at 8. It seems neither side was satisfied with the PUC’s revisions, as a number of parties filed suit in either a United States District Court or Pennsylvania Commonwealth Court. Id. at 9. On August 12, 1998, PPL and the intervening parties, which included various Pennsylvania administrative agencies, reached an agreement and filed a Joint Petition for a Full Settlement of PP & L, Inc.’s Restructuring Plan and Related Court Proceedings (“Joint Petition”), with the PUC. PI. Exh. 15, p. 3. The Joint Petition became effective once it was approved by the PUC in a final order dated August 27, 1998. Def. Exh. 11. In accordance with the Competition Act, the Joint Petition provided that PPL would remain the POLR in its original service territories, from 1999 through 2009, in order “to ensure the availability of universal electric service.” 66 Pa. Cons.Stat. § 2802(16), PI. Exh. 15, p. 9, 15. PPL’s designation as a POLR meant that throughout the period of restructuring, PPL “shall continue to have the full obligation to serve, including the connection of customers, the delivery of electric energy and the production or acquisition of electric energy for customers.” 66 Pa.C.S. § 2807(e). The Final Order also approved an overall retail electric rate decrease and an increase in the amount of the shopping credit customers who wanted to switch to a different EGS would receive. Def. Exh. 11, p. 3. This order governs the sale of power by PPL to any retail consumer in Pennsylvania. As of March 15, 1994, the Boroughs purchased capacity, energy, and transmission services from PP & L. PI. Exh. 2, Tab A, Art. I. Thus PPL sold electricity to the Boroughs; the Boroughs then resold this electricity to their own residents. On May 8, 1996, after FERC issued Order No. 888, a number of Pennsylvania boroughs, including the plaintiffs, filed a proceeding before FERC “to determine their liability, if any, to PP & L for ‘stranded costs’ if they were to stop purchasing capacity and energy from PP & L following the initial 5-year terms of their current agreements with PP & L.” PI. Exh. 2, Tab A, Art. I. On January 29, 1998, PPL and the Boroughs reached a Settlement Agreement, which was submitted to FERC for approval. PI. Exh. 2, Tab A. The agreement resolved the stranded cost issues between the parties at that time (PPL would not seek stranded costs from the Boroughs) and modified their current power supply agreements. Id. FERC approved this settlement on May 29, 1998. Def. Ex. 17. As part of the Settlement Agreement, PPL and each of the Boroughs entered into new, five year power supply agreements (“Power Supply Agreements”), which commenced on February 1,1999 and ran through January 31, 2004. PI. Exh. 2, Tab B, p. 1. These Agreements provided that the Boroughs would purchase from PPL their wholesale capacity and energy requirements at set rates for the first three years of the Agreements (February 1, 1999 through January 31, 2002). PI. Exh. 2, Tab A, p. 8. For years four and five of the Agreements, the Boroughs were entitled to request a lower wholesale rate, which PPL was entitled to accept or decline. Id. at p. 9-10. If PPL declined the Boroughs’ request for a lower rate, the Boroughs., had the right to unilaterally terminate the contract. Id. In years four and five of the Agreements, PPL had corresponding rights to request a higher wholesale rate, with the Boroughs having similar rights to accept or decline. Id. STANDARD OF REVIEW Either party to a lawsuit may file a motion for summary judgment, and the court will grant it “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir.1996) (citation omitted). When a court evaluates a motion for summary judgment, “[t]he evidence of the non-movant is to be believed,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and “all justifiable inferences are to be drawn in [the non-movant’s] favor.” Id. Additionally, “[s]ummary judgment may not be granted ... if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.” Ideal Dairy, 90 F.3d at 744 (citation omitted). However, “an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990). To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that' party must go beyond the pleadings and present “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of his claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. The non-movant must show more than “[t]he mere existence of a scintilla of evidence” for elements on which he bears the burden of production. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). When faced with whether a plaintiff has offered sufficient proof of an agreement in violation of the antitrust laws, which would preclude summary judgment for a defendant, a court generally applies the same summary judgment standards that apply in other contexts. InterVest Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir.2003). A court “should not tightly compartmentalize the evidence put forward by the nonmovant, but instead should analyze it as a whole to see if it supports an inference of concerted action.” Petruzzi’s IGA v. Darling-Delaware, 998 F.2d 1224, 1230 (3d Cir.1993). Although these normal summary judgment principles apply in antitrust cases, an important distinction exists. As the Supreme Court held in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case” so that certain “inferences may not be drawn from circumstantial evidence in an antitrust case.” InterVest, 340 F.3d at 160. “This higher threshold is imposed in antitrust cases to avoid deterring innocent conduct that reflects enhanced, rather than restrained, competition.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004) DISCUSSION I. Defendants’ Motion for Summary Judgment on Plaintiffs’ Antitrust Claims A. Violation of the Sherman Act § 1 Defendants argue that the plaintiffs have failed to provide any evidence in support of their allegation that defendants violated § 1 of the Sherman Act, codified at 15 U.S.C. § 1. As the statute and corresponding case law make clear, in order to establish a violation of the Sherman Act § 1, a plaintiff must prove the existence of a “contract, combination ... or conspiracy [which results] in restraint of trade or commerce among the several States.” 15 U.S.C. § 1; see also, e.g., Standard Oil Co. v. United States, 221 U.S. 1, 59, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Despite its broad language, Section 1 of the Sherman Act only prohibits contracts, combinations, or conspiracies that unreasonably restrain trade. See InterVest Inc. v. Bloomberg, L.P., 340 F.3d 144, 158 (3d Cir.2003). Certain restraints of trade are per se unreasonable, because of their “pernicious effect on competition and lack of any redeeming virtue.” Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). In the interests of “business certainty and litigation efficiency,” conduct that is manifestly anticompetitive is conclusively presumed to unreasonably restrain competition. Ariz. v. Maricopa County Medical Soc., 457 U.S. 332, 343, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982). When reviewing claims of per se illegality, plaintiffs need only prove that there exists a contract, combination or conspiracy that was the proximate cause of their injury. InterVest, Inc., 340 F.3d at 159. 1. Plaintiffs Fail to Establish the Existence of an Agreement to Fix Prices or Allocate Markets Plaintiffs allege that defendants engaged in per se illegal price-fixing and market allocation. The Supreme Court has held that “uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce” is per se unreasonable. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 212, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Price fixing agreements “are all banned because of their actual or potential threat to the central nervous system of the economy.” Id. at 224, n. 59, 60 S.Ct. 811. Additionally, the Supreme Court has stated that one of the “classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition.” United States v. Topco Assocs., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). Therefore, plaintiffs need only prove there is a question of fact-as to the existence of a contract to fix prices or allocate markets and that this contract was the proximate cause of their injury, to meet their burden on summary judgment. The defendants argue that no such agreement exists. In response to defendants’ argument, plaintiffs point to (1) letter agreements in which various companies promised PPL that they would not oppose the PPL’s position before the PUC, Pl. Br. 14; Pl. Exh. 14; and (2) the Joint Petition, Pl. Exh. 15. Plaintiffs believe that reading the letter agreements and Joint Petition together makes it clear that defendants engaged in illegal price fixing and division of markets. Pl. Br. 14-15; Pl. Statement of Facts. ¶ 17. This court disagrees with the plaintiffs for the reasons that follow and, accordingly, defendants’ motion for summary judgment on the plaintiffs’ claim for violation of the Sherman Act § 1 will be granted. The Third Circuit has interpreted the “contract, combination, or conspiracy” language in Section 1 of the Sherman Act to require “some form of concerted action.” Alvord-Polk, Inc. v. Schumacher & Co., 37 F.3d 996, 999 n. 1 (3d Cir.1994). In other words, there must be a “ ‘unity of purpose or a common design and understanding or a meeting of minds’ ” or “ ‘a conscious commitment to a common scheme.’ ” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775, (1984) (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980)). Plaintiffs assert that defendants entered into letter agreements as part of an anti-competitive program whereby three competitor power suppliers, “agreed to provide electricity service restricted to its existing retail customers for a period through December 31, 2009, at fixed rates not based on its cost of service” and such agreements “were never filed with the PUC.” Pl. Br. 14. Allegedly, this anticompetitive program would: “(1) result in all of [PPL’s] existing retail customers remaining or returning as customers of PPL under the POLR rates through 2009, and (2) preclude the plaintiff-boroughs from being able to compete with PPL for such customers.” Id. In Borough of Olyphant v. PPL, No. 03-4023, 2004 WL 1091037, at *8, 2004 U.S. Dist. LEXIS 8958, *21 (E.D.Pa. May 14, 2004), aff'd Borough of Olyphant v. PPL Corp., 153 Fed.Appx. 80 (3d Cir.2005), the plaintiff, the Borough of Olyphant (which is also a plaintiff in the present case), raised an identical claim regarding the letter agreements. As in Olyphant, the plaintiffs in the instant case fail to explain how these letter agreements are evidence of price fixing or market allocation. This court observed: [t]he letters do not make any reference to POLR service, nor do they mention “rates” or “customers.” Pl.Ex. [14]. Rather, the letters evidence agreements between certain companies, including PPL, not to oppose each others’ restructuring orders before the PUC. Pl.Ex. [14]. In other words, the letters simply memorialize the signatory party’s intent to sign the Joint Petition, in exchange for PPL agreeing not to oppose the signatory party’s restructuring order before the PUC. Id. Thus the letter agreements alone are not evidence of a common design and a meeting of minds such that they can be viewed as a contract to fix prices or allocate markets. Plaintiffs attempt to demonstrate that the letter agreements are evidence of market allocation and price fixing, by arguing that they must be read together with the Joint Petition. PI. Br. 15. Plaintiffs believe that: [b]y referring to the Petition by PPL to the []PUC, the [letter] agreements incorporated by reference the substance of that petition, which expressly provided that: C.l. PP & L agrees that, for the duration of the CTC/ITC Recovery period, it will serve as a provider of last resort for all retail customers in its service territory that do not choose or cannot choose to purchase power from alternate suppliers subject to the following terms, conditions, and qualifications ____ PP & L will charge customers its tariff rates as set forth in Appendices A and B. Pl. Exh. 15, pp. 15-16. PPL’s reference in the secret letters to its petition to the [ ]PUC confirmed that the secret agreements referred to PPL’s proposed fixed price of its POLR service through 2009 to its customers, which alone could be provided by PPL under the terms of the agreement. Pl. Statement of Facts, ¶ 17. The letter agreements and the Joint Petition, even when read together, do not support the plaintiffs’ assertions that they demonstrate unlawful market allocation. Plaintiffs have rehashed the exact same argument raised and rejected by this court and the Third Circuit in Borough of Olyphant, 2004 WL 1091037, at *8, 2004 U.S. Dist. LEXIS 8958, at *21, aff'd 153 Fed.Appx. 80 (3d Cir.2005). As this court pointed out in Olyphant: Plaintiffs allegation of “market allocation” is totally specious. Defendants’ agreement to remain “the provider of last resort for all retail electric customers in its service territory that do not choose or cannot choose to purchase power from alternative suppliers,” Pl. Ex. [15] at 15-16, does not restrict competition. Rather, this agreement simply complies with the requirement of 66 Pa. Cons.Stat. § 2807 that “[w]hile an electric distribution company collects either a competitive transition charge or an intangible transition charge ... the electric distribution company shall continue to have the full obligation to serve.... ” 66 Pa. Cons.Stat. § 2807(e). PPL was required by statute to become a POLR and the Joint Petition, among other things, laid out the parameters of this designation. See 66 Pa. Cons.Stat. §§ 2802(16) and 2807(e). The Joint Petition makes it clear that customers were free to purchase energy from any alternative supplier, and the company designated as the POLR functions solely as a safety net so that retail customers will always be able to purchase electricity from at least one utility. Pl. Exh. 15, pp. 13, 20 (“Customer savings may be greater if, for example, customers obtained lower prices from a competitive supplier”). PPL is serving only as the provider of last resort; plaintiffs and the power suppliers who signed the letter agreements are free to sell energy to any customer in PPL’s original service territory. Additionally, though plaintiffs claim that the Joint Petition designates PPL as the sole POLR in its territories and therefore allocates the market only to PPL, this is not the case. Pl. Statement of Facts, ¶ 17. The Joint Petition specifically states that “20 of PPL’s residential customers — determined by random selection ... — shall be assigned to a provider of last resort default supplier other than PP & L that will be selected on the basis of a Commission-approved energy and capacity market price bidding process. This service shall be referred to as Competitive Default Service (‘CDS’).” Pl. Exh. 15, p. 16. (emphasis added). The Joint Petition goes on to specify that “PP & L’s divisional or affiliated EGS’s may not bid (either directly or as a partner or participant in any business combination with a bidder) on CDS service” and if “the number of residential customers served by the CDS has fallen below 17%, a further random selection of customers shall be assigned to CDS service to restore the number of customers for the 20% level.” Id. at 17-18. Plaintiffs, as well as the PPL competitors who signed the letter agreements, could bid to become the CDS to PPL’s residential customers. Because any EGS could bid on becoming the 20% CDS and consumers throughout the state of Pennsylvania may purchase energy from any EGS, such as the plaintiffs or the competitors in the letter agreements, it is unclear how the Joint Petition provides for the allocation of markets. Plaintiffs also claim that the Joint Petition and letter agreements set fixed energy rates through 2009. However, as this court pointed out in Olyphant the Joint Petition did not set any prices, but rather requested the PUC to make changes to PPL rates the Commission had approved in prior restructuring orders. The PUC did, in fact, approve those changes in an order dated August 27, 1998, concluding, ‘Consistent with the fundamental goals of [the Electric Competition Act, 66 Pa. Cons.Stat. § 2801 et seq.], the settlement provides for an orderly transition ... to a structure under which retail consumers will have direct access to a competitive market for the generation of electricity.’ Def. Ex. [11] at 7. In other words, the PUC recognized that the rates contained in the Joint Petition actually increased competition. Olyphant, 2004 WL 1091037, at *8, 2004 U.S. Dist. LEXIS 8958, at *22, aff'd Borough of Olyphant v. PPL Corp., 153 Fed.Appx. 80 (3d Cir.2005). Additionally, the Joint Petition increased the chance that customers would be able to effectively “shop” for electricity from alternative suppliers, i.e. find a supplier whose generation rates were better priced than those of PPL. Reading the letter agreements together with the Joint Petition, does not change the fact that the Joint Petition itself did not fix energy rates. Thus, plaintiffs have not provided evidence of the existence of a contract to fix prices or allocate markets. 2. Plaintiffs Sherman Act § 1 Claims are Barred by the Noerr-Pennington Doctrine Defendants argue further that the Joint Petition is protected under the Noerr-Pennington doctrine, which holds that “[a] party who petitions the government for redress generally is immune from antitrust liability.” Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 122 (3d Cir. 1999), cert. denied, 528 U.S. 871, 120 S.Ct. 173, 145 L.Ed.2d 146 (1999). More specifically, parties are immune from antitrust liability arising from antitrust injuries caused by the act of petitioning itself, Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 143, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), or from government action which results from the petitioning, United Mine Workers v. Pennington, 381 U.S. 657, 671, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). “Petitioning is immune from liability even if there is an improper purpose or motive.” A.D. Bedell Wholesale Co. v. Philip Morris Inc., 263 F.3d 239, 251 (3d Cir.2001). The Noerr-Pennington doctrine immunizes actions'that violate the Sherman Act because the “federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from the government.” City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 379, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). The application of antitrust laws is inappropriate once it is determined that the government itself, rather than a private actor, is the relevant decision maker, even if the resulting decision is anti-competitive. Noerr, 365 U.S. at 135, 81 S.Ct. 523. Defendants are immune under the Noerr-Pennington doctrine. Following the deregulation of the Pennsylvania energy markets, PPL was required by statute to file a restructuring plan with the PUC. 66 Pa. Cons.Stat. § 2806(d). The Joint Petition is a settlement agreement relating to issues surrounding PPL’s restructuring plan and the “petition itself did not effectuate any changes to the rates, but rather requested the PUC to make changes to PPL rates.” Olyphant, 2004 WL 1091037, at *8, 2004 U.S. Dist. LEXIS, at *25; See Pl. Exh. 15, pp. 3-4 (requesting the PUC’s approval of the Joint Petition). Though “[p]assive government approval is insufficient” to obtain immunity under the Noerr-Pennington doctrine, there was active government approval of the Joint Petition. Bedell, 263 F.3d at 251. Three of the parties to the Joint Petition, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Office of Trial Staff, are Pennsylvania administra-five agencies. Pl. Exh. 15, p. 2; see 71 Pa. Stat. § 309-2 (creating the Office of Consumer Advocate), 73 Pa. Stat. § 399.43 (creating the Office of Small Business Advocate), 66 Pa. Cons.Stat. § 306 (creating the Office of Trial Staff). Representatives of all three agencies signed the Joint Petition. Def. Exh. 12. Additionally, the PUC, a Pennsylvania administrative agency, approved the Joint Petition in a twenty-three page, final order on August 27, 1998. Def. Exh. 11. Defendants’ petitioning activities fall within the traditional type of government petitioning which is afforded Noerr-Pennington immunity. Therefore, plaintiffs are immune from antitrust liability for any injures resulting from the PUC’s approval of the Joint Petition. Plaintiffs argue that the court in Oly-phant “dismissed out of hand the so-called ‘sham exception’ to the [Noerr-Penning-ton] doctrine.” PI. Br. 19. In Olyphant this court stated: There is a ‘sham’ exception to the Noerr-Pennington doctrine which holds that using the petitioning process simply as an anticompetitive tool without legitimately seeking a positive outcome to the petitioning destroys immunity. There is no suggestion that the sham exception applies here. Olyphant, 2004 WL 1091037, at *8, 2004 U.S. Dist. LEXIS 8958 at *26, n. 11, aff'd 153 Fed.Appx. 80 (3d Cir.2005), quoting A.D. Bedell, 263 F.3d at 250, n. 9. Yet plaintiffs provide no legal argument or evi-dentiary support for the application of the sham exception, other than a single quote from City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 380, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (citing that the sham exception to Noerr “encompasses situations in which persons use the governmental process — as opposed to the outcome of that process — as an anticompeti-tive weapon.”) (emphasis in original). The Supreme Court has said that the sham exception applies to “ ‘private action that is not genuinely aimed at procuring favorable government action,’ as opposed to ‘a valid effort to influence government action.’ ” Professional Real Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 58, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (“PRE”) citing Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500, n. 4, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). It is irrelevant that a private party’s motive is selfish in seeking such government action. Omni Outdoor Advertising, 499 U.S. at 380, 111 S.Ct. 1344. In their Sherman Act § 1 claim, plaintiffs do not argue nor do they provide any evidence that PPL did not genuinely seek PUC approval of the Joint Petition. Plaintiffs instead object to the actual terms and rate proposals in the Joint Petition as violative of the antitrust laws. PI. Br. 16-17. However, as discussed earlier, the Joint Petition requested that the PUC make the proposed changes and the PUC did, in fact, approve those changes. There is no evidence that this is not a case of genuine petitioning; therefore, the sham exception to Noerr-Pennington immunity does not apply. Omni Outdoor Advertising, 499 U.S. at 380, 111 S.Ct. 1344 (finding that the sham exception to Noerr-Pennington immunity does not apply to a defendant who “genuinely seeks to achieve his governmental result, but does so through improper means. ”) (emphasis in original) (internal quotations and citations omitted); PRE, 508 U.S. at 58, 113 S.Ct. 1920 (“[W]e have explicitly observed that a successful ‘effort to influence governmental action ... certainly cannot be characterized as a sham.’ ”) (internal quotations and citations omitted). Plaintiffs argue that the letter agreements do not fall within the scope of the Noerr-Pennington immunity because these letters preceded and were not dependant upon any action on the part of PUC. Pl. Br. 19-21. Plaintiffs correctly cite Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), for the notion that the Noerr-Pennington doctrine does not extend to “every concerted effort that is genuinely intended to influence gov-eminent action.” However, the Supreme Court goes on to conclude “that the Noerr immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity.” Id. at 504, 108 S.Ct. 1931. In Allied Tube the defendants allegedly manipulated the process for establishing an influential private association’s standards to exclude a rival technology from the market. Id. at 496-499, 108 S.Ct. 1931. The Supreme Court makes it extremely clear that its holding, that there was no Noerr immunity from antitrust liability, was “expressly limited to cases where ‘an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants’ ” Id. at 511, n. 13, 108 S.Ct. 1931 (emphasis in the original) (quoting from p. 509-510 of the opinion). This court concludes that the letter agreements are easily distinguished from the type of activity in Allied Tube which did not receive Noerr-Pennington immunity. The letter agreements do not reflect efforts on the part of PPL to influence a standard-setting private organization. Unlike in Allied Tube, the letter agreements are not part of a private standard setting process. A letter agreement between competitors not to contest the other’s administrative agency petition is not an act of influence before a private organization; the letters are better viewed as “incidental” to the Joint Petition. Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931, citing Noerr, supra, at 143, 81 S.Ct. 523 (“[W]here, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is ‘incidental’ to a valid effort to influence governmental action”). Because the letter agreements are incidental to PPL’s Joint Petition they are therefore subject to Noerr Pennington immunity. Neither the letter agreements themselves nor the letter agreements read together with the Joint Petition raise a genuine issue of material fact concerning whether defendants engaged in either price fixing or market allocation in violation of the Sherman Act § 1. Additionally, even if the plaintiffs had established an issue of material fact, defendants are entitled to immunity under the Noerr Pennington doctrine. Accordingly, defendants’ motion for summary judgment on plaintiffs’ claims for violation of the Sherman Act § 1 will be granted. B. Violation of the Sherman Act § 2 Plaintiffs claim that defendants violated § 2 of the Sherman Act, which prohibits monopolization or attempted monopolization of a trade, either single-handedly or via a combination or conspiracy. 15 U.S.G. § 2. First, plaintiffs claim that defendants “have monopolized the sale of electric power in the wholesale power market available to the Boroughs to increase the price of power therein to the Boroughs, resulting in increases in the cost of power to the Boroughs under their present Power Contracts with PPL.” Compl. ¶¶ 14, 15. Plaintiffs also specifically allege that defendants created a “price squeeze” by requiring plaintiffs “to pay wholesale prices for electric power substantially higher than the retail prices the Defendants charge for comparable service to its commercial and industrial customers, based on the additional charge demanded of Plaintiffs by Defendants.” Compl. ¶ 14, 18. Defendants argue that plaintiffs have failed to provide any concrete evidence in support of their allegation that defendants violated § 2 of the Sherman Act. Defendants also argue that the filed rate doctrine is applicable to bar plaintiffs’ claims. For the reasons that follow, I will grant defendants’ motion for summary judgment on plaintiffs’ Sherman Act § 2 claims. 1. The Filed Rate Doctrine The “filed rate” doctrine “bars antitrust suits based on rates that have been filed and approved by federal agencies.” Utilimax.com, Inc. v. PPL Energy Plus, LLC, 378 F.3d 303, 306 (3d Cir.2004) (citations omitted); see also Keogh v. Chicago & N.W. Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). “Under the filed rate doctrine, a plaintiff may not sue the supplier of electricity based on rates that, though alleged to be the result of anticompetitive conduct, were filed with the federal agency responsible for overseeing such rates.” Id. citing Montana-Dakota Utils. Co. v. N.W. Pub. Serv. Co., 341 U.S. 246, 251-52, 71 S.Ct. 692, 95 L.Ed. 912 (1951). “The considerations underlying the doctrine ... are preservation of the agency’s primary jurisdiction over reasonableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant.” City of Cleveland v. FPC, 525 F.2d 845, 854 (D.C.Cir.1976). Numerous courts have held that the filed rate doctrine applies equally to rates filed with state agencies. See Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 20 (2d Cir.1994); Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir.1992) (holding that the filed rate doctrine applies with equal force whether the rate at issue was set by a state or federal rate-making authority); H.J., Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) (“the rationale underlying the filed rate doctrine applies whether the rate in question is approved by a federal or state agency”). The filed rate doctrine can be a defense to both federal and state law actions based on the regulated rates. See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 578, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981) (finding that under the filed rate doctrine, “courts lack authority to impose a different rate than the one approved by the Commission”). The form or details of the filed rate are not relevant to the application of the filed rate doctrine; the rate need only be filed with an agency responsible for overseeing such rates. See Am. Tel. & Tel. Co. v. Central Office Tel., 524 U.S. 214, 222, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) (stating the doctrine applies even if it results in the application of the filed rate when a defendant intentionally misrepresented the promised rate). The filed rate doctrine is applicable to market-based rates set through auctions where FERC approved the market mechanism for establishing the rates or the rates were filed with the FERC. See Utilimax, 378 F.3d at 306 (finding that the filed rate doctrine applied because PPL charged rates that were in conformity with the requirements of the FERC and PJM approved market model), Public Util. Dist. No. 1 of Snohomish County v. Dynegy Power Mktg., Inc., 384 F.3d 756, 761 (9th Cir.2004) (holding that FERC does enough regulation under the market-based system of setting wholesale electricity rates to justify federal preemption of state laws under the filed rate doctrine), Town of Norwood v. New England Power Co., 202 F.3d 408, 419 (1st Cir.2000) (finding that the filed rate doctrine applies to market-based rates because “FERC is still responsible for ensuring just and reasonable rates and, to that end, wholesale power rates continue to be filed and subject to agency review”). 2. The Filed Rate Doctrine Bars Recovery by the Boroughs FERC is the federal agency that regulates the sale of wholesale electricity in interstate commerce. 16 U.S.C. § 824(b). In this regard, FERC is charged with ensuring that wholesale rates are “just and reasonable,” 16 U.S.C. § 824d(a). To this end, PPL filed copies of the Settlement Agreement and Power Supply Agreements defendants entered into with each Borough with FERC. Def. Exh. 17, 18. These agreements declared the wholesale electricity rates PPL would charge the Boroughs over the life of the agreement. PI. Exh. 2, Tabs A and B. FERC also reviewed and approved PJM’s rules and operating agreements, which described in detail how the governance, market, and operations structures of PJM would function. Plaintiffs’ price squeeze claim is barred by the filed rate doctrine. Plaintiffs allege that the defendants created a price squeeze in violation of Sherman Act § 2. Plaintiffs’ claim rests on the combined effect of two different tariffs: the rates PPL was required to charge POLR customers under the PUC-approved Joint Petition, and the wholesale rate PPL offered to the Boroughs pursuant to the Power Supply Agreements filed with FERC. PI. Br. 11-12. Plaintiffs allege that PPL increased the price of wholesale electricity to the Boroughs in each of the last two contract years, while the rates PPL charged its POLR customers was locked in under the Joint Petition discussed, see supra Section A. The wholesale rate plaintiffs complain of was subject to FERC regulation under the “just and reasonable” standard imposed by the Federal Power Act, 16 U.S.C. § 824d(a). Utilimax, 273 F.Supp.2d at 584 (applying the filed rate doctrine where PPL charged rates that conformed to FERC requirements and PJM rules), aff'd 378 F.3d 303 (3d Cir. 2004) (“Utilimax (3d. Cir.)”). Additionally, the retail rates PPL charged as a POLR were filed with and approved by the PUC. Def. Exh. 11. It is clear that plaintiffs’ claims are rate-related because they request damages for the price squeeze claim based on the “difference between the rates that the Borough would have paid in years four and five of the contracts and what they would have paid had PPL not been able to extract its five percent price increase in each of those years.” PI. Br. 34. The filed rate doctrine applies to bar all damages for plaintiffs’ claim asserting that rates “submitted to, and approved by [FERC were] the product of an antitrust violation.” Square D, 476 U.S. at 422, 106 S.Ct. 1922. Plaintiffs’ more general monopolization claim under Sherman Act § 2 rests on the ground that PPL’s actions in the ICAP market caused the plaintiffs to pay an inflated rate for wholesale electricity under their Power Supply Agreements. PI. Br. 7. Plaintiffs claim that PPL exerted monopoly power to increase the price for capacity in the ICAP market. Plaintiffs allege that this monopolization caused the price of energy in the wholesale market to increase. Id. This allegedly injured plaintiffs because, when they were testing the market in years four and five of the Power Supply Agreements, they were unable to obtain lower quotes for wholesale energy, thus they accepted, rather than declined, PPL’s proposed five percent increases made pursuant to the Power Supply Agreements. Id. at 10. In a virtually identical case, the court found that anti-trust claims based on rates established in the ICAP market created by PJM are barred by the filed rate doctrine. Ultimax, 273 F.Supp.2d at 584-586, aff'd, 378 F.3d 303 (3d Cir.2004). The filed rate doctrine applies to bar claims challenging the rates set by FERC in a market-based rate system. See Town of Norwood, Mass. v. New England Power Co., 202 F.3d 408, 419 (1st Cir.2000) (finding filed rate doctrine should apply where the “regulated rates” have been left to the free market). In this case, although the rates charged were market-based rates, FERC approved these rates as a means of achieving “just and reasonable” rates in advance of authorizing the PJM market to operate. As such, the rates charged by wholesale electricity generators were the legal rates and the filed rate doctrine applies. Id. at 585, n. 18. The Third Circuit affirmed the dismissal of these antitrust claims, asserting that the ICAP rates, though allegedly excessive, were the result of PPL’s temporary monopolistic position in the wholesale capacity market that was established and approved by FERC and PJM.... Utili-max makes no claim that PPL charged rates that were not in conformity with the requirements of the FERC and PJM-approved market model. Thus, absent an exception, the filed rate doctrine precludes Utilimax’s claims against PPL. Utilimax (3d. Cir), 378 F.3d at 306. Plaintiffs’ claim, that they could have obtained offers to supply wholesale power at lower rates and therefore declined PPL’s request for an increased wholesale rate pursuant to the contract, is based on alleged monopolistic behavior in the ICAP market. However, rates established in the ICAP market may not be the basis for an antitrust claim under the filed rate doctrine. Also, as discussed in the context of the price squeeze claim, the Power Supply Agreements, which detail the wholesale energy prices between PPL and the Boroughs, were filed with FERC and therefore fall under the ambit of the filed rate doctrine. Thus, any antitrust claim based on the interaction between the rates is barred. S. Exceptions to the Filed Rate Doctrine The question, then, is whether the Boroughs can establish a pertinent limitation on, or exception to, the filed rate doctrine. Plaintiffs’ broadest claim is that the filed rate doctrine is inapplicable to the present case because “the Supreme Court has definitively rejected any claim of antitrust immunity based on the FERC’s regulatory jurisdiction,” and “the Energy Policy Act of 1992 expressly excluded the federal antitrust laws from any FERC regulatory jurisdiction.” PI. Br. 30. However, although “the filed rate doctrine has been vigorously criticized ... the Supreme Court has declined an invitation to overturn the doctrine set out in Keogh. ” Utilimax, 273 F.Supp.2d at 580, aff'd 378 F.3d 303 (3d Cir.2004). The Supreme Court has conceded that the filed rate doctrine might be “unwise as a matter of policy” but reaffirmed it nonetheless, because Congress had ample opportunity to overturn it but had not done so. Square D. Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 420, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). While the Supreme Court expressly rejected the filed rate doctrine as a type of antitrust immunity, the Court reaffirmed a narrowed interpretation of the filed rate doctrine, stating that “Keogh simply held that an award of treble damages is not an available remedy for a private shipper claiming that the rate submitted to, and approved by, the ICC was the product of an antitrust violation.” Id. at 422, 106 S.Ct. 1922. Thus, the filed rate doctrine still “bars recovery in overcharge actions by customers based on claims that a ‘filed rate’ constitutes an antitrust violation.” Utilimax, 273 F.Supp.2d at 580. Plaintiffs also argue that the filed rate doctrine does not apply to block claims brought by plaintiffs who are competitors of the defendant. Plaintiffs claim to compete with PPL in the retail electricity market. In 1979, the Third Circuit adopted the “competitor exception” to the filed rate doctrine, finding that the doctrine “has little or nothing to do with [the defendant’s] duties under the antitrust laws toward its competitors in the equipment supply business; competitors are not the intended beneficiaries of that rule of public utility regulation.” Essential Communications Systems, Inc. v. American Tel. & Tel. Co., 610 F.2d 1114, 1121 (3d Cir.1979). Other courts have joined the Third Circuit in establishing a “competitor exception” to the filed rate doctrine. See Cost Management Servs., Inc. v. Washington Natural Gas Co., 99 F.3d 937, 945-46 (9th Cir.1996) (exception in case where plaintiff was competitor, not customer), and City of Groton v. Connecticut Light & Power Co., 662 F.2d 921, 927-29 (2d Cir. 1981) (exception in case where plaintiff was customer and competitor). The Third Circuit recently reaffirmed the competitor exception. Utilimax (3d. Cir.), 378 F.3d 303 (3d Cir.2004). The case involved a claim by Utilimax, a retail supplier of electricity, that purchased electricity and capacity credits in the wholesale market and then resold electricity in the retail market. Id. at 305. Like the Boroughs, Utilimax did not generate electricity but instead purchased it in the wholesale market, although Utilimax purchased its own capacity credits in the daily ICAP market. Id. at 305-6. As in this case, the defendant, PPL, sold capacity credits in the ICAP market and also sold energy at the retail level. Id. Utilimax claimed that PPL exerted undue influence over the wholesale ICAP market where Utilimax was a customer. Id. Utilimax claimed that because it competed with PPL in the retail energy market, the competitor exception rendered the filed rate doctrine inapplicable. Id. at 307. The Third Circuit refused to apply the competitor exception because Utilimax was both a customer in the wholesale energy market and a competitor in the retail energy market of PPL, but the claims arose out of the PPL’s conduct in the wholesale ICAP market, in which plaintiff was not a competitor. The only fair reading of these allegations is that Utilimax, as a customer in the wholesale electricity market, could not afford to pay the rates that PPL was able to charge because of its allegedly anticompetitive conduct. The result of Utilimax’s inability to buy capacity offered by PPL in the wholesale market was that it went out of business in the retail market and PPL had one fewer competitor in that latter market. That result, however, came about because Utilimax (as a customer of PPL) could not afford to buy capacity. While the ramifications were felt in its competitor role, the damage to Utilimax occurred because of its status as a customer of PPL. Utilimax (3d. Cir.), 378 F.3d at 307-308 (emphasis added). The Court went on to say that “when an entity buys something from another entity there is a customer/seller relationship for that transaction, even if the two entities are competitors under other circumstances.” Id. at 308. The competitor exception is not applicable to the case at bar. Although the Boroughs compete with PPL in the retail electricity market, both Sherman Act § 2 claims are based upon the Boroughs’ status as a customer in the wholesale electricity market. Plaintiffs claim that defendants monopolized the ICAP market, which in turn increased the price of wholesale electric power “resulting in increases in the cost of power to the Boroughs under their present Power Contracts with PPL.” Compl. ¶ 15. Plaintiffs also allege that defendants created a “price squeeze” by requiring plaintiffs “to pay wholesale prices for electric power substantially higher than the retail prices the Defendants charge for comparable service to its commercial and industrial customers, based on the additional charges demanded of Plaintiffs by Defendants.” Compl. ¶ 18. In both of these claims, any damage felt by the Boroughs resulted from their relationship as a purchaser/customer of wholesale energy from PPL. It is PPL’s actions in the wholesale ICAP market that form the basis of the Boroughs’ claims. The power contracts plaintiffs refer to are Power Supply Agreements that provide the terms under which PPL sells wholesale electricity to the Boroughs. PI. Exh. 2, Tab B, p. 2 (“During the term of this Agreement, PP & L shall supply to Lansdale and Lansdale shall purchase from PP & L all of Lansdale’s capacity and energy requirements”). Plaintiffs claim that PPL’s actions in the ICAP market resulted in their inability to find an alternative lower priced wholesale electricity supplier, which in turn required plaintiffs to sustain five percent annual increases to the cost of wholesale electricity under their supply contract with PPL in 2001 and 2002. PI. Br. 11, 33. Allegedly, the wholesale electricity rates the Boroughs paid to PPL in 2001 and 2002 were higher than the rates PPL was charging its POLR customers, under the PUC approved Joint Petition. PI. Br. 11-12. Though the ramifications of PPL’s acts in the ICAP market were felt in the Boroughs’ competitive role, the Boroughs were affected by PPL’s acts by virtue of their role as a wholesale electricity customer of PPL. Therefore, the Boroughs do not qualify as competitors of PPL with respect to their claims and the competitor exception to the filed rate doctrine does not apply. Plaintiffs also argue that PPL engaged in non-rate anticompetitive activity unrelated to the filed rate; therefore, the filed rate doctrine does not bar antitrust claims based on that activity. PI. Br. 31, 32-34. The Third Circuit has held that the filed rate doctrine “does not preclude liability based on non-rate anticompetitive activity.” In re Lower Lake Erie Iron Ore Antitrust Litigation, 998 F.2d 1144, 1159 (3rd Cir.1993). In Lower Lake Erie, steel, dock, and trucking companies asserted antitrust claims against railroad companies, alleging that the railroads conspired to “preclude competitors from entering the market of lake transport, dock handling, storage and land transport of iron ore.” Id. at 1151. The Third Circuit allowed the steel companies, customers of the railroads, to go forward with their damage claims despite the filed rate doctrine insofar as they alleged “non-rate anticompetitive activity.” Id. at 1159. Specifically, claims “that the railroads conspired to protect their stronghold in the ore transport market by blocking entry to low-cost competitors” by “restricting the lease and sale of railroad-owned dock property and boycotting] non-railroad docks” were allowed to progress as claims of non-rate anticompetitive activity. Id. at 1153, 1159. However claims “that the railroads charged an unlawful rate” were barred. Id. Most of the non-rate anticompetitive activities plaintiffs allege on the part of PPL are actually rate-based activities. Plaintiffs claim that PPL imposed “restrictive conditions on plaintiffs’ purchase of electricity for resale as to make it impossible for the plaintiffs to compete for retail customers without economic penalty, and requiring plaintiffs to pay wholesale prices substantially higher than the retail prices PPL charged for comparable service to its commercial and industrial customers.” PI. Br.