Full opinion text
MEMORANDUM OPINION GRADY, District Judge. MCI Communications Corporation (“MCI”), a specialized communications common carrier engaged in providing private line communications services for businesses and government agencies between their offices in different cities, is suing the American Teléphone & Telegraph Company (“AT&T”) and its affiliated companies for a conspiracy in restraint of trade, monopolization, attempted monopolization, and conspiracy to monopolize. The complaint is based on the following events. In 1973, MCI sought approval of construction permits for a microwave transmission system between Chicago and St. Louis. (Complaint, par. 17). This system, if approved, would directly compete with AT&T Long Lines for the data communications business of the government and private companies, the market of which AT&T controls a 90 per cent share. (Complaint, pars. 7, 22). In 1969, the FCC granted MCI construction permits for the Chicago to St. Louis route and ordered AT&T to interconnect MCI’s intercity transmission system with the Bell System’s intracity network. (Complaint, par. 17). During the pendency of MCI’s application, AT&T allegedly initiated a massive publicity campaign directed at the public, MCI’s potential customers, state and federal regulators, Congressmen, and the Executive Branch, asserting that competition in the provision of business and data communications services would damage the national telephone network and asking for a “moratorium on competition” in that field. (Complaint, par. 23(m)). Also during this period, AT&T expanded at an unprecedented rate its circuits which transmitted private line business and data communications. (Complaint, par. 23(i)). After MCI received approval for the Chicago-St. Louis construction and the FCC ordered interconnection, AT&T allegedly engaged in numerous other activities designed to maintain Long Lines’ monopoly power in the business and data communications market. (Complaint, par. 23). AT&T’s local affiliates refused to interconnect MCI to various services, such as common control switching arrangements (“CCSA”) arid intercity private line service (“FX”), to points beyond metropolitan distribution areas, to cities not serviced by MCI, to independent telephone carriers, and to other specialized common carriers who serviced cities not serviced by MCI. (Complaint, par. 23(a)). For any potential customer who needed these interconnections, AT&T tied provision of the services and any expansion of distribution to the use of Long Lines’ intercity transmission facilities. (Complaint, par. 23(h)). In those cases where AT&T’s affiliates permitted interconnection, they furnished interconnection on unilateral and discriminatory terms. The rates charged MCI for installation and maintenance were higher than those charged for Bell subsidiaries. (Complaint, par. 23(b)(1), (6), and (7)). The quality of the interconnection received by MCI was lower than that provided to Bell subsidiaries, in that the local affiliates supplied low grade equipment, inadequate circuitry, inadequate technical information, inadequate follow-up on complaints, and poor repair service to MCI. (Complaint, par. 23(c)(2)-(4), (d), and (e)). In addition, the local affiliates imposed significant geographic and customer restrictions upon MCI’s interconnections. (Complaint, par. 23(b)(3)-(5)). When MCI protested about these interconnection practices to the FCC, AT&T allegedly filed sham tariffs before various State regulatory commissions which sought to deny MCI the interconnections ordered by the FCC. (Complaint, par. 23(1)). AT&T then initiated a campaign to harass MCI’s present customers, to discourage potential customers from buying MCI’s service, and to disparage MCI generally throughout the business and financial community. To discourage potential customers, AT&T caused the filing of “mirror” and “experimental” tariffs with the FCC for the Chicago-St. Louis routes. (Complaint, par. 23(g), (j)). These tariffs offered lowered rates and greater services than those supplied by MCI, but at the time of filing, AT&T knew that it did not have the ability to provide the breadth of services or to charge the low rates established in the tariff. (Complaint, par. 23(j)). Nevertheless, AT&T publicized the tariff’s terms to potential customers in the business community and represented that it would soon provide the services contained in the tariff. (Complaint, par. 23(j)). In addition, AT&T threatened to withdraw advisory personnel and services from companies which purchased MCI’s services. (Complaint, par. 23(f)(5)). As to MCI’s present customers, AT&T required them to sign a customer authorization before proceeding with interconnection. (Complaint, par. 23(f)(1)). AT&T then supplied them with other AT&T services on a discriminatory basis and misrepresented to them that the terms of AT&T’s new tariff would soon be available. (Complaint, par. 23(f)(2), (4)). Finally, in its more general publicity, AT&T disparaged the safety and reliability of MCI’s service, the aptitude and acumen of MCI’s personnel, and the strength of MCI’s financial position. (Complaint, par. 23(k)). Although this case was filed in 1974 and the parties are near the completion of discovery, AT&T has now moved to dismiss the entire complaint. With the exception of the allegations of sham proceedings and lobbying, defendant argues, all the activities detailed in the complaint are within the exclusive jurisdiction of the FCC and are therefore impliedly immunized from the antitrust laws. The remaining allegations, defendants contend, fall within the Noerr immunity which protects certain forms of first amendment activity. On the question of implied immunity, AT&T has made two interrelated, but quite distinct, arguments. The first is that the pervasive regulation of common carriers by the FCC under the “public interest” standard is necessarily and inherently inconsistent with the antitrust laws and that therefore all of AT&T’s conduct should obtain a blanket immunity from the coverage of the antitrust laws. The second takes a fall back position. The argument is that even though all of AT&T’s conduct may not be immunized, the FCC, in its pervasive regulation, has approved each of the allegedly anticompetitive activities of which MCI complains and that therefore AT&T should obtain at least ad hoc immunity from the antitrust laws. In essence, both of these arguments rely on the doctrine of exclusive jurisdiction as distinguished from the doctrine of primary jurisdiction. The former doctrine is invoked when the enforcement of the antitrust laws is so plainly repugnant to agency administration of a regulatory statute that the antitrust court is ousted of jurisdiction. 7 von Kalinowski, Antitrust Laws and Trade Regulation: § 44A.02 (1977). Primary jurisdiction, on the other hand, is invoked when the defendant’s conduct is arguably immune from anti-trust liability due to the regulatory statute or when the agency has jurisdiction over some of the defendant’s conduct and its decision would be of material aid in clarifying the antitrust issues. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973). Rather than dismissing the case entirely, as is required by a finding of exclusive jurisdiction, a court which applies the doctrine of primary jurisdiction merely stays its proceedings and refers certain factual or legal questions to the administrative agency for preliminary determination. United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). There are two primary reasons for this prior resort to the agency: the need for administrative uniformity, and “the need for administrative expertise in distilling the relevant facts in a complex industry.” United States v. Radio Corporation of America, 358 U.S. 334, 347-48, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959). It is important to note at the outset that AT&T’s assertions of immunity in this case are based on the doctrine of exclusive, as opposed to, primary jurisdiction. It is equally important to recognize that AT&T bases its arguments for exclusive jurisdiction not on an express grant of statutory immunity but on an implied grant of immunity. Given this posture, AT&T’s claims of implied immunity must satisfy the exacting standard articulated by the Supreme Court: “Repeal of the antitrust laws by implication is not favored and not casually to be allowed. Only where there is a ‘plain repugnancy between the antitrust and regulatory provisions' will repeal be implied.” Gordon v. New York Stock Exchange, 422 U.S. 659, 682, 95 S.Ct. 2598, 2611, 45 L.Ed.2d 463 (1975). “. . . Repeal is to be regarded as implied only if necessary to make the [regulatory statute] work, and even then only to the minimum extent necessary.” Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963). FEDERAL COMMUNICATIONS ACT The question of implied immunity turns in considerable part on the legislative history and content of the regulatory statute. Thus, we must begin by an analysis of the Federal Communications Act. Federal regulation of communications common carriers began with an amendment of the Interstate Commerce Act, in which communications carriers were brought under the jurisdiction of the Interstate Commerce Commission (“ICC”) and were governed by the provisions of the Interstate Commerce Act. Mann-Elkins Act of 1910, 36 Stat. 539, 61st Cong., 2d Sess. (1910). A decade later, in recognition of a distinct problem confronting communications carriers, Congress conferred on the ICC the power to exempt from the antitrust laws those mergers or acquisitions of local telephone companies which were found to be in the public interest. Willis-Graham Act of 1921,42 Stat. 27, 67th Cong., 1st Sess. (1921). In 1934, Congress enacted the Federal Communications Act, the statute which severed regulation of the telephone, telegraph, and radio industries from the Interstate Commerce Commission and invested regulation over these industries in the newly created Federal Communications Commission (“FCC”). 47 U.S.C. §§ 151 et seq. The Act divided the regulated industries into common carriers, such as the telephone and telegraph companies, and radio broadcasters, and under the provisions of Title II, imposed stricter and more numerous regulatory controls over the common carriers. United States v. RCA, 358 U.S. 334, 348-350, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959). With regard to the telephone industry, Congress recognized that, through a series of mergers and consolidations and through the creation of several holding companies, AT&T had achieved a monopolistic position in the provision of interstate message telephone toll service and interstate private line service. House Report No. 1273, Pt. 3, No. 1, 73d Cong., 2d Sess., pp, 856-860 (1934). Congress did not regard this growing concentration of economic power as necessarily injurious to the public, id. at 932, but it did believe that the ICC, under the Willis-Graham Act, should have scrutinized these transactions more closely for possible abuses in property valuation and for potential injury to the affected telephone users. Id. at 930-932. Aside from the re-enactment of the power to exempt mergers from the antitrust laws, Congress did not address the possible anticompetitive effects which intentional maintenance of AT&T’s recognized monopolistic position might create. Rather, Congress concentrated on vesting the FCC with sufficient powers to insure that AT&T provided telephone users, both public and private, with nondiscriminatory and reasonable rates and with efficient, rapid and uniform services. S.Rep.No.781, 73d Cong., 2d Sess., pp. 1-3 (1934); 47 U.S.C. § 151. The Federal Communications Act of 1934 grants the FCC fairly broad and general regulatory powers over the telephone companies and leaves to the FCC the task of defining the scope of these powers. S.Rep. No.781, 73rd Cong., 2d Sess., pp. 1-2 (1934). Under the Communications Act, the FCC possesses several powers which are central to its mission. Before a telephone company may discontinue service on a particular line or construct new lines, the Commission must certify that the discontinuance or construction serves the public convenience and necessity. 47 U.S.C. § 214(a)-(b). In controlling this entry into and exit from communications service, the FCC may also order one common carrier to interconnect its lines with those of another carrier. 47 U.S.C. § 201(a). Equally significant is the Commission’s control and supervision over a telephone company’s rates and practices. The Act declares that any unjust or unreasonable charge, practice, classification, or regulation is illegal, 47 U.S.C. § 201(b), and that any unjust or unreasonable discrimination or preference “in charges, practices, classifications, regulations, facilities, or services” is similarly illegal. 47 U.S.C. § 202(a). At least ninety days before implementing new charges or practices, the common carrier must file with the Commission a schedule, or tariff, embodying these charges or practices and must publish this tariff generally. Compare 47 U.S.C.A. § 203(b)(1) (Supp.1978) (ninety days) with 47 U.S.C. § 203(b)(1) (1970) (thirty days). The Commission may then hold a hearing to investigate the reasonableness of the charge or practice and may suspend its effective date for a maximum of five months. Compare 47 U.S.C.A. § 204(a) (Supp.1978) (5 months) with 47 U.S.C. § 204(a) (1970) (3 months). Most important, the Commission is empowered to determine whether a certain charge or practice is unjust or unreasonable and to prescribe in its stead a fair, just, and reasonable charge or practice. 47 U.S.C. § 205(a). The Commission may enforce its order by enjoining the carrier to cease and desist from violations and by assessing a $1,000.00 forfeiture for each day a violation continues. 47 U.S.C. §§ 205(a), (b). In addition, an injured party may seek damages for an unreasonable discrimination in a proceeding before the Commission or before the district court. 47 U.S.C. § 206. The Commission also possesses several incidental powers. In order to detect potential accounting abuses, the Commission may establish the value of all or any part of a carrier’s property and must stay informed of any improvements, retirements, and other changes in a carrier’s property. 47 U.S.C. §§ 213(a), (c). In line with this same purpose, the Commission may prescribe the forms of account and record keeping and a carrier’s allowable depreciation charges. 47 U.S.C. § 220. In addition, the Commission may require carriers to file their annual reports. 47 U.S.C. § 219. BLANKET IMMUNITY In applying the Silver and Gordon standards to AT&T’s first claim, we conclude that neither the Congressional intent nor the cases support a blanket immunity from the antitrust-laws for communications common carriers. Unquestionably, Title II of the Communications Act subjects communications common carriers, like AT&T, to considerable regulatory supervision and control. As the Supreme Court has remarked in finding no reason for applying the doctrine of primary jurisdiction, “‘In contradistinction to communication by telephone and telegraph, which the Communications Act recognizes as a common carrier activity and regulates accordingly . . . , the Act recognizes that broadcasters are not common carriers and are not to be dealt with as such. Thus the Act recognizes that the field of broadcasting is one of free competition.’ ” United States v. RCA, 358 U.S. 334, 349, 79 S.Ct. 457, 466, 3 L.Ed.2d 354 (1959) (citations omitted). Despite this regulation of the telecommunications industry, however, there is simply no indication, either from the expressions of legislators or from the structure of Title II, that Congress intended to take the extraordinary step of immunizing all conduct of the telecommunications industry from the antitrust laws. United States v. American Tel. & Tel. Co., 421 F.Supp. 57, 60 (D.D.C.1976). But see, Note, AT&T and the Antitrust Laws: A Strict Test for Implied Immunity, 85 Yale L.J. 254 (1975). Absent such a clear indication, the presumption against implied repeal must prevail. This conclusion is bolstered by the Supreme Court cases which have ruled on the implied immunity question. Although the Court has, in discrete instances, held that a regulatory statute may immunize particular conduct, the Court has consistently refused to grant blanket immunity to any regulated industry. It is significant that rejections of blanket immunity have occurred in three industries to which the Court has been most generous in granting immunity for particular conduct: the securities industry, Silver v. New York Stock Exchange, 373 U.S. 341, 360-361, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); the airline industry, Pan American World Airways, Inc. v. United States, 371 U.S. 296, 305, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963); and the shipping industry, Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 733, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). In the telecommunications industry, where it has never immunized conduct even on an ad hoc basis, it seems extremely unlikely that the Court would take the far more sweeping and unprecedented step of granting blanket immunity. AT&T counters this absence of Congressional intent and the absence of Supreme Court authority by pointing to the part of the statute which requires the FCC to regulate AT&T in the “public interest.” According to AT&T’s argument, this standard, which pervades all FCC regulations, is categorically inconsistent with the standard of competition required by the antitrust laws. Although we agree that in particular instances the two standards may necessarily conflict, we believe that AT&T’s argument is far too broad. The Supreme Court has recognized that under the Communications Act the “encouragement of competition as such has not been considered the single or controlling reliance for safeguarding the public interest.” FCC v. RCA, 346 U.S. 86, 93, 73 S.Ct. 998, 1003, 97 L.Ed. 1470 (1953). On the other hand, the Supreme Court has also affirmed that “there can be no doubt that competition is a relevant factor in weighing the public interest.” 346 U.S. at 94, 73 S.Ct. at 1004. Thus, in any given instance, the FCC may consider competition in determining the “public interest” and may decide to regulate in such a way as to maximize competition. In such an instance, the “public interest” standard and the competitive standard are consistent rather than conflicting. In the abstract then, we cannot say that regulation in the “public interest” necessarily and categorically conflicts with the standard of competition embodied in the antitrust laws. Therefore, FCC regulation in the name of the “public interest” does not give AT&T total immunity from the antitrust laws. We thoroughly agree with Judge Greene’s holding on this issue: In such a posture, the abstract philosophical differences between regulation and competition will hardly serve to oust the antitrust laws from their normal function and effect. The purpose of the implied immunity rule is to eliminate adherence to antitrust standards when there are irreconcilable differences between the antitrust laws and federal regulatory statutes. But the antitrust laws cannot be held hostage to a supposed irreconcilability between antitrust and regulatory enforcement when no irreconcilability exists in fact, nor can the alleged unlawful actions of defendants be deemed protected from the Sherman Act by the cloak of generalized regulation of AT&T by the Commission. United States v. American Tel. & Tel., 461 F.Supp. 1314, at 1328 (D.D.C. 1978). PARTICULAR IMMUNITIES — THE CASE LAW Before turning to an examination of the particular conduct alleged in the complaint, we think it necessary to consider the teaching of the numerous Supreme Court cases which have addressed the question of implied antitrust immunity. In the earlier cases, before the proliferation of administrative agencies, the Court did not clearly distinguish between the doctrines of exclusive and primary jurisdiction. Even after a clear recognition of this distinction, however, many of these cases are difficult and sometimes seem irreconcilable. Given this apparent irreconcilability, the safest course might be to consider each case as sui generis for a particular statute and for a particular industry. Yet, we think it possible and necessary to derive some principles of fairly general application. The effort seems particularly appropriate in this case, since the Supreme Court has never addressed the application of the antitrust laws to the telecommunications industry. Essentially, there are two instances in which the strong presumption against implied repeals has been overcome and the Court has implied an immunity from the antitrust laws. The first occurs when the statute provides that an agency may regulate an industry under standards which are a substitute for those embodied in the antitrust laws. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 302 n. 13, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973). An example of such a statute is the Civil Aeronautics Act, which confers upon the CAB the power to investigate and enjoin unfair practices and unfair methods of competition. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). In such an instance, where Congress has provided substitute antitrust enforcement, the Court will imply an immunity from the Sherman Act, whether or not the agency has exercised its antitrust authority. Otherwise, “if the courts were to intrude independently with their construction of the antitrust laws, two regimes [of antitrust administration] might collide.” 371 U.S. at 310, 83 S.Ct. at 485. The second instance in which an immunity may be implied occurs when the statute confers authority on an agency to regulate specific conduct which might be anticompetitive and the agency has, under the aegis of that authority, either required, approved, or sanctioned the anticompetitive conduct at issue. Essential Communication Systems, Inc. v. American Tel. & Tel. Co., 446 F.Supp. 1090 (D.N.J.1978). Here, there are essentially two requirements: statutory authority and agency sanction. The scope of the agency’s authority can be determined by a reading of the regulatory statute itself and its legislative history. When the legislative history is scant, however, the inquiry focuses on the degree of agency involvement in the anticompetitive conduct, that is, the degree to which a government regulator or a duly recognized self-regulatory body has limited the regulatee’s independent business judgment and constrained the regulated industry to engage in anticompetitive conduct. Sufficient agency involvement from which to imply immunity may vary from outright agency approval, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), to Congressionally acknowledged, continuing regulatory supervision, Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975), to failure of an agency to disapprove of self-regulated conduct, United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975). If, on the other hand, an agency has considered the particular conduct at issue but has expressly denied it approval or expressly declared it inconsistent with regulatory goals, a claim of implied immunity must be rejected because of the failure to satisfy the threshold requirement of a repugnancy between the regulatory and antitrust regimes. Since the principles governing this area are not always easy to apply, the reasoning behind the Supreme Court’s decisions may also be a useful guide. A primary reason for implying immunity is often “that to deny antitrust immunity with respect to [the conduct at issue] would be to subject the [regulated entity] to conflicting standards.” Gordon, 422 U.S. at 689, 95 S.Ct. at 2614. In the first instance we have posited, where the statute substitutes the agency as the vindicator of antitrust principles, the failure to imply immunity could subject a regulated entity to conflicting versions of the needs of competition. In the second instance we have posited, the failure to imply immunity would subject the regulated entity to the competitive standard of the antitrust laws and to what, in a given instance, may be the anticompetitive standard of the regulatory statute. A second major reason for finding immunity is that the regulator has so curtailed the regulated entity’s activities by its pervasive regulation that the conduct at issue is really not the product of the defendant’s independent business judgment. In this regard, the Court has observed, “In each case, notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision.” Cantor v. Detroit Edison Co., 428 U.S. 579, 593, 96 S.Ct. 3110, 3119, 49 L.Ed.2d 1141 (1976) “In every sense, the question faced by the parties was solely one of business judgment (as opposed to regulatory coercion), save only that the Commission must have found that the ‘public interest’ would be served by their [alleged anticompetitive conduct].” United States v. RCA, 358 U.S. 334, 350-51, 79 S.Ct. 457, 467, 3 L.Ed.2d 354 (1959) (citations omitted). Thus, when the allegedly anticompetitive conduct is the product of independent business judgment rather than regulatory constraint, the need to imply immunity disappears. Although these Supreme Court cases supply the foundation of our analysis, it is important to note one respect in which they differ from the instant case. For the most part, the plaintiffs in the Supreme Court cases were complaining of conduct which was either a per se violation of § 1 of the Sherman Act or a violation of § 7 of the Clayton Act. In such cases, the complaint focused primarily on one type of activity, such as agreements to fix prices, Keogh v. Chicago & North Western R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922); Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975); concerted refusals to deal, United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975); agreements to horizontally divide markets, Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963); and mergers or acquisitions between competitors, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). If the court found that this discrete activity was necessary to make the regulatory scheme work, the Court immunized the activity, thereby disposing of the case. In the case at bar, plaintiff is complaining primarily of monopolization and attempted monopolization. To show the intent necessary for these § 2 violations, plaintiff has alleged a scheme consisting of a plethora of activities, no one of which is necessary to prove the violation. Standing by themselves, each of these activities may be perfectly legal, but when they are concatenated, a pattern may emerge which demonstrates a clear and conspicuous violation. Thus, unlike the per se or § 7 violations, what is often crucially important under § 2 is a pattern of conduct rather than one discrete activity. This distinction has several implications. First, since what is of paramount significance is the pattern of conduct, no one of the activities alleged by MCI is necessary to show the requisite intent. Thus, a finding of isolated immunity will not require dismissal of the entire complaint. Second, each of the activities comprising the pattern may be perfectly legal. As the Seventh Circuit has observed, “acts which may be legal and innocent in themselves, standing alone, lose that character when incorporated into a conspiracy to restrain trade.” Kurek v. Pleasure Driveway & Park Disk of Peoria, 557 F.2d 580, 587 (7th Cir. 1977). “If the end result is unlawful, it matters not that the means used in violation may be lawful.” California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972). In its motion to dismiss, AT&T has severed each particular activity alleged in the complaint and has sought to demonstrate the FCC’s exclusive jurisdiction over that activity. In an analytical sense, this is justified, for as we remarked earlier, the Supreme Court has endorsed an approach which implies ad hoc immunity for discrete conduct rather than blanket immunity for a whole pattern of conduct. From a practical standpoint, however, this vivisection could work an injustice. See United States v. American Tel. & Tel., 461 F.Supp. 1314, at 1328 (D.D.C. 1978). Since each individual activity may be perfectly legal, the FCC could approve each particular activity after individual consideration, even though the FCC might not have approved the entire pattern of conduct if presented in the same proceeding. Although this suggests that a different analysis might be appropriate for violations arising from a pattern of conduct, we will follow the technique which analyzes each discrete activity. We will, however, hearken back to the distinction throughout this opinion. AGGREGATION OF TRADE RESTRAINTS A significant portion of MCI’s complaint details a variety of predatory acts from which AT&T’s intent to monopolize may be inferred. These include the initiation of sham proceedings, (Complaint, par. 23(g), (j), (1)); the tying of common control switching arrangements, interchange circuits, and nearby city service to intercity private line transmission, (Complaint, par. 23(h)); the interference with MCI’s customers through threats and harassment, (Complaint, par. 23(f)); false advertising of AT&T’s services, (Complaint, par. 23(f), (j)); and disparagement of MCI’s ability both to the trade and the financial community, (Complaint, par. 23(k)). In its brief, AT&T does not appear to argue that the FCC has exclusive jurisdiction over the initiation of sham proceedings and the tying of services, and we therefore conclude that, pending the resolution of the Noerr immunity question, these first two predatory acts are concededly within our antitrust jurisdiction. As to the other three categories of predatory acts, however, AT&T takes a distinctly different position. Unquestionably, harassment of a competitor’s customers, 1 von Kalinowski, Antitrust Laws and Trade Regulation: § 1.03[2][e] (1978), false and deceptive advertising, see generally, 6 von Kalinowski, Antitrust Laws and Trade Regulation: § 41.04 (1978), and trade disparagement, 1 von Kalinowski, Antitrust Laws and Trade Regulation : § 1.03[3][c] (1978), are traditional acts of unfair competition which may form the basis for a charge of illegally maintaining a monopoly. AT&T argues that the exclusive jurisdiction over and exclusive remedy for these traditionally anticompetitive acts lies in the FCC and that therefore the district court should be ousted of its normal antitrust jurisdiction. In essence, AT&T is seeking to show that, as to these traditionally anticompetitive activities, the FCC provides a substitute for normal antitrust enforcement under the first of the two theories of exclusive jurisdiction we outlined in an earlier part of this opinion. The starting point for finding implied repeal of the antitrust laws due to a regulatory authority’s substitute scheme of antitrust enforcement is the case of Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). In Pan Am, the United States charged that Pan Am had allocated territories between itself and its subsidiary, Panagra, by preventing Panagra from filing a petition with the CAB for a route extension from the Canal Zone to the United States. This horizontal division of markets allegedly occurred both before and after the enactment of the Civil Aeronautics Act in 1938. Under Section 414 of the Act, the Civil Aeronautics Board (CAB) was granted express authority to immunize from the antitrust laws conduct of any person which had been affected by CAB orders made pursuant to Sections 408, 409, and 412. Id. at 304, 83 S.Ct. 476. Under Section 411 of the Act, the CAB was given the power to investigate complaints of “unfair or deceptive practices or unfair methods of competition in air transportation” and to order an air carrier to cease and desist from such practices. Id. at 302, 83 S.Ct. at 481. Although the express immunity did not cover all of the conduct charged, the Court held that, as to conduct occurring both before and after 1938, repeal of the antitrust laws should be implied from the CAB’s authority under Section 411 and its use of a “public interest” standard which expressly required the CAB to consider effects on competition. Id. at 309, 83 S.Ct. 476. In reaching this conclusion, the Court distinguished an earlier case by observing that under its Section 411 authority to issue cease and desist orders, the CAB was empowered to grant the only antitrust relief sought by the United States, divestiture. Id. at 310, 83 S.Ct. at 485. The limited nature of the holding is apparent: “It seems to us, therefore, that the Act leaves to the Board under § 411 all questions of injunctive relief against ...” the specific conduct charged — “. the division of territories or the allocation of routes or against combinations between common carriers and air carriers.” Id. at 310, 313 n.19, 83 S.Ct. at 485 n.19 (citations omitted). Thus, Pan Am teaches that in order to find an implied repeal on the basis of a regulatory substitute for antitrust enforcement, there should be either express statutory authority for a regulator’s enforcement of competition or a strong showing of legislative intent to that effect and a scheme of agency administration which can grant the relief which the antitrust plaintiff seeks. We turn then to consider whether the FCC has express statutory authority to hear complaints of unfair competitive conduct such as customer interference, false advertising, and trade disparagement and whether the FCC can provide the type of remedy for this conduct which plaintiff seeks. Section 221 of the Federal Communications Act provides: If the Commission finds that the proposed consolidation, acquisition, or control [of a telephone company] will be of advantage to the persons to whom service is to be rendered and in the public interest, it shall certify to that effect; and thereupon any Act or Acts of Congress making the proposed transaction unlawful shall not apply. 47 U.S.C. § 221(a). This is the only express statutory authority which permits the FCC to control alleged anticompetitive conduct. Unlike the statute analyzed in Pan Am, the Federal Communications Act does not have a section authorizing the FCC to grant relief from the variegated conduct included within the concept of “unfair competition.” Our inquiry then could legitimately end by noting this crucial distinction. Yet, although there is no specific authority within Pan Am for such a liberal approach, we believe that the absence of express statutory authority may not necessarily require the conclusion that a regulatory authority cannot provide a substitute for antitrust enforcement if the legislative history strongly supports a contrary conclusion. In this case, however, the legislative history does not indicate that the FCC was given exclusive jurisdiction to remedy acts of unfair competition. Section 221 of the current Federal Communications Act was enacted as the Willis-Graham amendment to the Interstate Commerce Act. Willis-Graham Act of 1921, 42 Stat. 27. In the Senate hearings on this amendment, the Committee recognized that there existed considerable competition between AT&T and independent companies in providing innovative services and in obtaining finances. Joint Hearings on S. 1313 before the Joint Committee of Interstate Commerce, 67th Cong., 1st Sess. 17, 37 (1921). According to Committee members, the present Section 221 empowered the Commission to affect only that competition which resulted in duplicative local facilities and was not designed to affect the other forms of existing competition. Id. at 26. Throughout the hearings, the Committee members assumed that the Sherman Act and the state antitrust laws would continue to apply to abuses arising from the existing, unaffected competition between telephone companies. Id. at 26-27. In enacting the more comprehensive Federal Communications Act of 1934, Congress did not again address the issue of competition between telephone companies. Rather, “Congressional intent in creating the Commission was to supervise rates and service in the telecommunications industry to ensure protection of the public interest, and uniform, nondiscriminatory treatment of customers.” International Tel. & Tel. Corp. v. General Tel. & Elec. Corp., 449 F.Supp. 1158, 1168 (D.Haw.1978) (citations omitted). In essence then, Congress designed the Commission to concentrate on discriminatory rates and services imposed on customers rather than on unfair competitive practices directed at competing telephone companies. Given this Congressional silence in the 1934 Act, we are unable to conclude that the abuses of competition recognized by the Willis-Graham joint committee were to be exclusively controlled by the FCC rather than the federal courts. Therefore, nothing in the statute itself or its legislative history leads to the conclusion that the FCC has exclusive jurisdiction to remedy acts of unfair competition such as customer interference, false advertising, or trade disparagement. Equally important, FCC proceedings do not provide the relief which MCI seeks. In its complaint, MCI prays for treble the damages its business sustained by reason of AT&T’s exclusionary practices and for an injunction against AT&T’s commission of future predatory acts. (Complaint, Prayer for Relief, par. 5, 7). AT&T suggests that the FCC proceedings can adequately remedy MCI’s injuries. As to the damages MCI has allegedly suffered, AT&T argues that Sections 206-209 provide a perfectly adequate remedy. Section 206 states: In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained . . 47 U.S.C. § 206. It is hardly necessary to point out that this section provides for single rather than treble damages. Mt. Hood Stages, Inc. v. Greyhound Corp., 555 F.2d 687, 692-93 (9th Cir. 1977), rev’d on other grounds, 437 U.S. 322, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978). We believe there are two additional factors which make this an inadequate remedy. First, damages are provided only for violations of the Act. As we stated earlier, the Act is primarily designed to protect customers against unjust and discriminatory services rather than to protect competitors against unfair competitive practices. Thus, when MCI is complaining about an injury it has suffered as a customer of AT&T by reason of discriminatory service, MCI may have a remedy under Section 207. When, on the other hand, MCI is complaining of injuries it has sustained as a competitor which has been excluded from its legitimate share of the market, Section 207 provides no remedy whatsoever. See generally, Nader v. FCC, 172 U.S.App.D.C. 1, 24, 520 F.2d 182, 206 (1975). Therefore, the damages remedy provided under the Act does not compensate for the competifive injury of which MCI is primarily complaining. The second factor is that an FCC damages proceeding is simply not structured to handle the type of scheme charged by MCI. The Section 207 proceeding appears designed to consider one particular violation of the Act. Plaintiff, in this case, is alleging a broad scheme to monopolize composed of numerous individual unfair practices. Most of these individual instances are clearly not within the scope of this damages remedy. Of the few which arguably come within its scope, the proceeding would address them on an individual, piecemeal basis. From a piecemeal consideration, the trier might easily and erroneously conclude that the plaintiff had sustained no injury. Thus, we must conclude that plaintiff’s remedy for the acts of unfair competition alleged in the complaint is not adequate because Sections 206-209 do not provide for treble damages, do not compensate competitive injury, and only provide for piecemeal consideration of allegedly predatory acts. In summary, we have found that the FCC does not possess exclusive jurisdiction to determine and remedy the acts of unfair competition MCI has allegedly suffered. This conclusion is based upon the absence of any express statutory authority or legislative history committing plenary power over acts of “unfair competition” to the FCC and upon the inadequacies of the FCC proceedings to remedy MCI’s injuries. We believe MCI’s position on this matter is clearly supported and that AT&T’s is not; but even if the arguments of both sides were more evenly balanced, we would be guided by the clear Supreme Court mandate that implied repeals of the antitrust laws are strongly disfavored. Thus, we conclude that we have antitrust jurisdiction over the acts of unfair competition and over the tying arrangement and the initiation and prosecution of sham proceedings. If proved, these predatory acts could be more than sufficient, by themselves, to establish an intent to monopolize. We need go no further to hold that MCI has stated a claim. In the interests of clarity and completeness, however, we will consider the two other major areas over which, according to AT&T, the FCC has exclusive jurisdiction — interconnection disputes and tariff filings. INTERCONNECTION PRACTICES MCI has complained of several practices associated with the interconnection of MCI’s intercity network to AT&T’s local distribution facilities. These practices fall within one of three broad types. First, MCI claims that AT&T refused interconnection either to various services, such as CCSA and FX, to certain locations, such as nearby city or off customers’ premises, or to certain facilities, such as those of independent telephone companies or of other specialized common carriers. (Complaint, par. 23(a)). Next, MCI complains that those interconnections which AT&T agreed to make imposed discriminatory charges and customer and geographic restrictions. (Complaint, par. 23(b)). Finally, MCI alleges that AT&T’s subsidiaries delayed making these interconnections and harassed plaintiff and its customers during installation and servicing. (Complaint, par. 23(c)). Undoubtedly, the FCC has statutory authority to regulate most of these practices. Under Section 201(a), the FCC may order one carrier “to establish physical connections with other carriers.” 47 U.S.C. § 201(a). As the legislative history reveals, Section 201(a) was enacted to permit the FCC to modify the common law rule which held that there was no duty to interconnect facilities between carriers. Woodlands Tel. Corp. v. American Tel. & Tel. Co., 447 F.Supp. 1261, 1266 (S.D.Tex.1978). Thus, this section supplies sufficient statutory authority for the FCC to reach outright refusals to interconnect or restrictions upon interconnection. (Complaint, par. 23(a)). Alternatively, the FCC has authority, under several other sections, to determine whether the imposition of charges and the provision of services, either related to interconnection or not, have been unreasonable or discriminatory. 47 U.S.C. §§ 201(b), 202(a). According to the legislative history, these sections were enacted to insure the uniform treatment of customers. International Tel. & Tel. Corp. v. General Tel. & Elec. Corp., 449 F.Supp. 1158 (D.Haw.1978). Since MCI was acting as a customer of AT&T in requesting these local interconnection services, these sections provide considerable authority for the FCC to reach the discriminatory treatment complained of in paragraphs 23(b) and 23(c) of the complaint. The presence of such statutory authority satisfies the first condition of the second test outlined in the section on particular immunities. As one district court has observed, however, this is “a necessary, but not sufficient, condition.” Essential Communication Systems, Inc. v. American Tel. & Tel. Co., 446 F.Supp. 1090, 1095 (D.N.J. 1978). The critical question here is whether the FCC has employed its admitted statutory authority to approve or sanction AT&T’s alleged anticompetitive conduct, thereby creating a plain repugnancy between the Communications Act and the antitrust laws. To answer this question, we must examine the regulatory history of private line, intercity communications. In December 1963, MCI filed its application with the FCC for authorization under Section 214 to construct an intercity microwave radio system between Chicago and St. Louis. (Complaint, par. 16). Almost six years later, the FCC granted MCI the construction permits. In re Applications of Microwave Communications, Inc., 18 FCC2d 953 (1969), reh. denied 21 FCC2d 190 (1970). “However, since the carriers [including AT&T] had indicated that they would not voluntarily provide loop service, the Commission retained jurisdiction to enable MCI to obtain a prompt determination on the matter of interconnection, and the Commission concluded that ‘absent a significant showing that interconnection is not technically feasible, the issuance of an order requiring the existing carriers to provide loop service is in the public interest.’ ” In the Matters of Bell System Tariff of Local Distribution Facilities for Use by Other Common Carriers, 46 FCC2d 413, 419 (1974). As this decision indicates, the questions of local interconnection could not meaningfully be resolved until the intercity network was completed. Before completion of the Chicago-St. Louis network, however, the FCC initiated a broad policymaking and rule-making proceeding on the general questions raised by the applications of specialized common carriers, like MCI, for entry into the private line communications field. In the Matter of Establishment of Policies and Procedures for Consideration of Application to Provide Specialized Common Carrier Services in the Domestic Public Point-to-Point Microwave Radio Service and Proposed Amendments to Parts 21, 43, and 61 of the Commission’s Rules, 29 FCC2d 870 (1971). “The purpose of this proceeding is to resolve certain threshold policy and procedural issues before we process the applications and opposition pleadings on their individual merits.” 29 FCC2d at 878. Although the Commission addressed five questions in total, only two are pertinent to the conduct at issue in this case: whether as a general policy the public interest would be served by permitting the entry of new carriers in the specialized communications field [Question A] and if so, the appropriate means for local distribution of these specialized communications services [Question E]. 29 FCC2d at 878. After a thorough analysis of the growing need for private line data and communications services and the significant potential benefits of competition in this field, the Commission concluded on Question A that the entry of new carriers into the specialized communications field and the “full and fair competition” between the new and old carriers in this field would serve the public interest and convenience. 29 FCC2d at 920. As to Question E, the Commission asserted that the new carriers should have the option of providing local service either by interconnection with the major carriers or by construction of their own local facilities. 29 FCC2d at 940. Because of an inadequate record on the radio frequencies these new facilities might use, the Commission ordered further proceedings on the alternative of local construction, 29 FCC2d at 941, but as to the interconnection alternative, the Commission was able to render a final decision. Although in MCI’s application for a construction permit, AT&T had refused to interconnect voluntarily its local facilities to MCI’s intercity network, AT&T apparently recanted in the rulemaking proceeding with this statement: “ ‘When the Commission determines that it is in the public interest to license additional intercity common carriers, we would be willing to discuss with them the technical arrangements required and appropriate charges for any connections required of the telephone companies.’ ” 29 FCC2d at 939. The Commission then stated: “In view of the representations of AT&T and GT&E in this proceeding, upon which we rely, . . . there appears to be no need to say more on this question [ordering specific local interconnection] at this time.” 29 FCC2d at 940. Thus, the Commission left the details of interconnection to the voluntary agreement of the parties, subject to this firm policy: Established carriers with exchange facilities should, upon request, permit interconnection or leased channel arrangements on reasonable terms and conditions to be negotiated with the new carriers . . Moreover, . . . “where a carrier has monopoly control over essential facilities we will not condone any policy or practice whereby such carrier would discriminate in favor of an affiliated carrier or show favoritism among competitors.” 29 FCC2d at 940. Presumably as a result of this decision, AT&T and MCI began negotiating for interconnection services. Bell Tel. Co. of Pennsylvania v. FCC, 503 F.2d 1250, 1256 (3d Cir. 1974). In the summer of 1973, AT&T broke off negotiations, submitted tariffs to the state utility commissions, and refused to provide the CCSA and FX service interconnections until the state tariffs were approved. A proceeding before the Commission was initiated to resolve whether the CCSA and FX service interconnections were within the intended scope of the Commission’s 1971 policy. In the Matters of Bell System Tariff Offerings of Local Distribution Facilities for Use by Other Common Carriers, 46 FCC2d 413 (1974), aff’d Bell Tel. Co. of Pennsylvania v. FCC, 503 F.2d 1250 (3d Cir. 1974). In its opinion, the Commission discussed the clear implications of its 1971 decision: While FX and CCSA are not specifically mentioned in the Specialized Common Carrier Services decision, this is because we were concerned with private line services generally and did not specifically focus on interconnection for FX and CCSA services or any others. It should be noted that the Commission considered the possibility of the “total diversion” of Bell’s private line revenues, . . . We would not have discussed this remote possibility ... if the competition offered by the specialized carriers were not to include FX and CCSA services. 46 FCC2d at 425. The intent of that decision could be understood not only from the scope of the economic impact upon AT&T’s private line services which had been considered but, more importantly, from the fundamental policy enunciated therein: Moreover, the interpretation which Bell would place on our previous rulings would be inconsistent with the basic purposes and objectives of the action which we took in the public interest. In each of the proceedings discussed above, our action was taken to insure that competition in the provision of interstate private line communications services would be on a full, fair and non-discriminatory basis and that the specialized common carriers would not be excluded from that market by reason of the monopoly control by Bell . over local distribution facilities. Bell presently has arrangements with its Long Lines Department and with numerous independent telephone companies for access to its local distribution facilities for the purpose of enabling Long Lines and the independent telephone companies to provide FX and CCSA services, and the income derived from these types of services represents a very substantial proportion of the carrier’s income from private line services. If MCI and other specialized carriers are excluded from this market, they will be at a definite disadvantage in obtaining and holding subscribers to any of their private line services . . . . Thus, if Bell’s contentions are accepted, Long Lines . will be in a position to exclude MCI and other specialized carriers . . not by reason of their superiority, but because of the telephone companies’ control over the local distribution facilities. However, we have held . . . that the public interest will be served by competition on a fair and non-discriminatory basis. 46 FCC2d at 426. On the basis of this reasoning, the Commission held “that our prior orders covered interconnection for the broad range of services which the specialized carriers are authorized to provide and Bell has been directed to furnish interconnection facilities ... to provide all such services, including FX and CCSA services.” 46 FCC2d at 426-27. Again the FCC left the details of interconnection to negotiations between AT&T and MCI, observing that, “if a good faith effort is made,” arrangements like those AT&T had with independent telephone companies could also be agreed upon with the specialized carriers. 46 FCC2d at 429. Shortly after the conclusion of this proceeding on AT&T’s refusals to interconnect, AT&T filed a tariff with the FCC containing its obligations to provide interconnection service and its charges for those services. MCI protested that these charges and services were unreasonable and discriminatory and initiated a proceeding before the FCC. In the Matter of AT&T, 47 FCC2d 660 (1974). “However, before these formal procedures had begun, AT&T expressed its desire to work informally with the parties and the Commission with the goal of expeditiously resolving as many of the issues herein as possible.” In the Matter of AT&T, 52 FCC2d 727, 732 (1975). Through Commission encouragement, the parties were able to reach a settlement agreement providing for AT&T’s non-discriminatory treatment of MCI. The Commission explained: Therefore, we will accept the settlement (without necessarily approving it) as a disposition ... of Docket No. 20099 [the proceeding initiated by MCI] . and we will therefore terminate the proceedings in Docket No. 20099. We wish to emphasize that our action herein should not be interpreted as modifying or derogating in any way the obligations imposed upon AT&T and the Associated Bell System companies by earlier decisions .... We will expect all parties to the Settlement Agreement not only to comply with its terms but also to adhere to its spirit. 52 FCC2d 732-33 (explanation supplied in brackets). Although providing a forum for dispute resolution, the FCC again expressed its preference for voluntary agreement between the parties: We endorse the proposal to conduct, as necessary, meetings of the parties under the aegis of the Commission’s Common Carrier Bureau. . . . It is our hope that, through these meetings, the parties will be able to resolve any differences which may arise. However, we wish to make clear that no one is precluded from bringing to the Commission’s attention any matter which it believes requires Commission action. 52 FCC2d at 733. Shortly thereafter, AT&T included in a tariff one of the interconnection restrictions upon which it had insisted throughout the post-1971 negotiations. As part of its tariff, AT&T stated that it would not interconnect at any location except a customer’s premises. The Commission found this interconnection restriction unlawful for two reasons. “The above-described Tariff 260 general interconnection restrictions are inconsistent with principles and policies established in Specialized Common Carrier Services, Bell System Tariff Offerings, Hush-a-Phone, and Carterfone . . . . These decisions clearly have established that AT&T is duty bound to honor reasonable requests for the interconnection of AT&T facilities with specialized carrier facilities.” In the Matter of AT&T, 60 FCC2d 939, 942-43 (1976). In addition, since AT&T was providing the desired interconnection to some other carriers, “the foregoing Tariff 260 restrictions also raise a question of unlawful discrimination . . The discriminatory treatment has not been justified. In fact, AT&T has not even attempted to justify the discrimination.” 60 FCC2d at 944-45. Thus, in this decision, the Commission once again reiterated its firm and consistent policy to prohibit refusals of or restrictions on interconnection. We think that this short regulatory history demonstrates that AT&T’s alleged refusals to interconnect, interconnection on discriminatory terms, and delays and harassment during interconnection should not be impliedly immunized from the operation of the antitrust laws. The FCC has never authorized, approved, or sanctioned this conduct. Nor has the FCC supervised AT&T’s interconnection practices so closely that the FCC’s approval could be inferred. Rather, from the Specialized Common Carriers Decision forward, the FCC has adhered to a firm policy which strongly disapproves of common carriers’ refusals to interconnect with specialized carriers, 503 F.2d at 1250, and which clearly and strongly disapproves of the provision of interconnection to specialized common carriers on discriminatory terms. 29 FCC2d at 940. On each occasion where the FCC has reached the merits of one of AT&T’s interconnection practices, the FCC has found the practice unlawful. 46 FCC2d 413 (1974) (refusals to interconnect with FX and CCSA); 60 FCC2d 939 (1976) (restrict interconnection to customer’s premises). Thus, AT&T’s interconnection practices have either been expressly disapproved by the FCC or are clearly contrary to enunciated FCC policy. When, as in this case, the conduct at issue is contrary to regulatory goals, imposition of antitrust liability for such conduct does not conflict with the regulatory regime and thus the basis for implying antitrust immunity disappears. Mt. Hood Stages, Inc. v. Greyhound Corp., 555 F.2d 687 (9th Cir. 1977), rev’d on other grounds, 437 U.S. 322, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978). There is simply no need to immunize these practices in order to make the Communications Act work as Congress or the FCC intends. Not only is there no plain repugnancy between the Communications Act and the antitrust laws with regard to AT&T’s refusals to interconnect or its discrimination and harassment in interconnection, but the two acts appear to supplement and accommodate one another in this instance. The policy of the Specialized Common Carrier Decision, as announced by the FCC, is to achieve “full and fair competition in the specialized field among all carriers, both established and new.” As the Commission recognized and the Department of Justice emphasized, this policy “would also be consistent with the policy embodied in the antitrust laws.” 29 FCC2d at 893. Thus, in providing the interconnections which permit new entry and in providing them in a non-discriminatory manner which insures full and fair competition, the Communications Act and the antitrust laws are acting in harmony rather than in plain conflict. The two principles which underly many of the Supreme Court decisions on implied immunity also support this conclusion. According to the first principle, an immunity may be implied when imposition of antitrust liability would subject the defendant to conflicting standards. As we have just concluded, the FCC’s policy and decisions in the area of interconnection are consistent with the antitrust laws. Thus, imposition of antitrust liability will not subject AT&T to conflicting stand