Full opinion text
Table of Contents I.Introduction .........................'....'.................................631 A. Procedural History.................................................. 631 1. The Initial Complaint............................................ 631 2. PP & L’s. First Motion for Summary Judgment...................... 632 3. The Utility Commission.............,............................. 633 4. The Amended and Consolidated Complaint......................... 633 5. Scope of the Remand............................................ 634 B. Factual Background................................................. 634 1. Plaintiffs’ Position....... C...................................... 634 (a). Costs and Efficiency........................................ 634 (b). Programs and Initiatives.................................... 634 (c). Specific Anticompetitive Conduct............................. 635 2. PP & L’s Position...............'................................ 637 (a). Gas Utility...................■..........-.................... 637 (b). All-Electric Development Agreements ........................ 637 (c). Market Reaction........................................... 638 II.Standard of Review........................................................638 III.Federal Antitrust Laws.....................................................639 A. Sherman Act § 2.................................-.................. 639 1. Attempted Monopolization.......................:................ 639 Table of Contents — Continued (a). Specific Intent............................................. 639 (b). Predatoiy Conduct......................................... 642 (c). Dangerous Probability of Success............................. 644 (i). The Relevant Market.................................. 644 (ii). Market Share........................................ 646 (iii). Pricing.............................................. 647 (iv). Barriers to Entry & Competition....................... 648 (v). Probability Conclusion................................. 648 2. Actual Monopolization........................................... 650 (a). Monopoly Power........................................... 650 3. Monopoly Leveraging............................................ 651 B. Sherman Act § 1................................................... 652 1. Per Se Illegality of the Contested Agreements...................... 653 2. The Agreements are Exclusive Dealing Contracts................... 655 3. Application of the Rule of Reason ................................. 657 4. Conversion Grants .............................................. 660 5. Conclusion — Sherman Act § 1.................................... 661 C. Clayton Act § 3 .................................................... 661 1. Distinguished from Sherman Act § 1 .............................. 661 2. Quantitative Substantiality Test................................... 662 3. Qualitative Substantiality Test.................................... 663 4. Conclusion — Clayton Act § 3..................................... 664 D. Robinson-Patman Act § 2(c)......................................... 664 E. State-Law Claims .................................................. 666 1. Tortious Interference with Contractual Relations.................... 666 2. Unfair Competition.............................................. 667 3. Restraint of Trade .............................................. 668 4. Civil Conspiracy................................................ 668 F. Conclusion......................................................... 669 OPINION PADOVA, District Judge. The Court commences another chapter in this protracted and multifarious litigation. Defendant, Pennsylvania Power and Light (“PP & L”), operates an electric utility in central and northeastern Pennsylvania and constitutes the sole source of electric power in those regions. Plaintiffs, fuel oil dealers, compete directly with PP & L in the market for residential heating and related equipment in PP & L’s service area. Plaintiffs contend that PP & L unlawfully restrained trade through business practices and marketing schemes in violation of both federal antitrust laws and state common-law. PP & L currently submits, for the Court’s consideration, its Motion for Summary Judgment. It should be noted at the outset that both parties have presented the Court well drafted, comprehensive, concisé, and organized briefs, with relevant submissions attached thereto. During oral argument on the Motion, both sides crafted compelling arguments, and the Court, in evaluating this Motion, faces a difficult task. After much deliberation, and for the following reasons, the Court will grant in part and deny in part PP & L’s Motion. I. INTRODUCTION A. PROCEDURAL HISTORY 1. The Initial Complaint In August, 1991, various fuel oil dealers filed a complaint in this Court alleging violations of §§ 1 and 2 of the Sherman Antitrust Act (“Sherman Act”), 15 U.S.C.A. §§ 1, 2 (West Supp.1996); section 2(c) of the Robinson-Patman Price Discrimination Act (“Robinson-Patman Act”), 15 U.S.C.A. § 13(c) (West 1973); section 3 of the Clayton Antitrust Act (“Clayton Act”), 15 U.S.C.A. § 14 (West 1973); and section 1962(c) of the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C.A. §§ 1961-1968 (West 1984 & Supp.1995). In April, 1992, Losch Boiler Sales & Service Company, a fuel oil and related equipment dealer, filed a separate complaint against PP & L in this Court asserting essentially the same claims, with the addition of a claim under § 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a (West 1973) and state-law claims of unfair competition and civil conspiracy. Both Complaints rested on the same factual allegations, and the Court consolidated the cases. (See Doc. Nos. 89, 144 (consolidating cases)). Generally, Plaintiffs alleged that PP & L engaged in illegal promotional strategies, such as cash incentives, reduced electric rates, rebates, and subsidized advertising, in an effort to encourage the installation of electric heat pumps in homes located in its service area. 2. PP & L’s First Motion For Summary Judgment In early 1992, PP & L moved for summary judgment. By Opinion and Order dated September 8, 1992, this Court granted in part and denied in part PP & L’s Motion. See Yeager’s Fuel, Inc. v. Pennsylvania Power & Light Co., 804 F.Supp. 700 (E.D.Pa.1992), aff'd in part, rev’d in part, 22 F.3d 1260 (3d Cir.1994) (“Yeagers I ”). Accepting PP & L’s contention that the challenged conduct constituted part and parcel of the Commonwealth of Pennsylvania’s energy conservation policies, and having determined that the allegedly anticompetitive behavior was conducted “pursuant to a clearly articulated state policy and under active state supervision,” the Court determined that Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), immunized PP & L from federal antitrust and racketeering liability. Yeagers I, 804 F.Supp. at 702. Similarly, the Court dismissed the RICO claim in the absence of a properly pleaded predicate act. The United States Court of Appeals for the Third Circuit affirmed in part and reversed in part in Yeager’s Fuel, Inc. v. Pennsylvania Power & Light Co., 22 F.3d 1260, 1263 (3d Cir.1994) (“Yeagers II”). Reversing this Court’s decision regarding the federal antitrust claims, Yeagers II narrowed the focus of those claims considerably, extending immunity to PP & L’s practice of “offering builders and developers cash grants and other incentives, and ... offering consumers a special electric rate for installation of high efficiency electric heating systems.” Id. at 1263. This protection did not, however, insulate PP & L “to the extent that [PP & L] made these offers contingent upon the all-electric development agreements ____, i.e., for actions undertaken in connection with all-electric development agreements.” Id. at 1263, 1272. The Third Circuit described the all-electric development agreements (“all-electric agreements”) as follows: Although no¡t specifically alleged in the Oil Dealers’ Complaints, PP & L apparently included in some of its incentive offers provisions such as the following: Developer must agree that the entire development will consist of only electrically heated units during the term of this Agreement. Completion of a nonelectrieally heated unit shall void this Agreement and the System grants for future units in the development will revert to whatever applicable program, if any, is in effect at the time. Id. at 1263. In allowing to proceed those antitrust claims which alleged that “PP & L provided benefits to builders and developers in exchange for entry into all-electric development agreements,” id. at 1263, Yeagers II bestowed immunity on PP & L with respect to the “RTS Rate” and other incentive programs that it offered “free of all-electric development agreements to builders and developers pursuant to a clearly articulated and affirmatively expressed policy.” Yeagers II, 22 F.3d at 1264, 1266 (defining “RTS Systems” as those which “promote load management by heating water during off-peak hours ... and storing it for use during peak hours____ PP & L offered a special rate (the ‘RTS Rate’) to homeowners purchasing homes with these units because RTS systems are more expensive than electric baseboard heating”). To the extent that those incentives were offered in conjunction with the all-electric. agreements, however, PP & L received no immunity. 3. The Utility Commission The Bureau of Conservation, Economies & Energy Planning (the “Bureau”) is an arm of the Pennsylvania Public Utilities Commission (“PUC”). In an 1989 internal report, the Bureau “found that PP & L’s offering of certain incentives to owners and builders to install high efficiency electric heating systems in new homes was a legitimate load management program.” Id. at 1268. Despite the 1989 report approving PP & L’s use of cash incentives, in March 1993, the PUC altered its policy, disallowing the use of such incentives. The PUC now requires approval of certain promotional activities implemented by utilities, “prohibits -the use of cash to influence builders and developers[,] ---- [and forbids] delivery of allowances such as cash or appliances to builders and developers in order to influence their choice of energy for use in new residential developments.” Id. at 1269 (citing 52 Pa.Code § 57.63). Under the new PUC regulations — issued March 19, 1993 and effective July 24, 1993 — a “promotional activity” includes: [a] thing done by a utility with the object of bringing about an increase, or preventing a decrease, in the quantity of its service purchased by the public or with the object of inducing any person to purchase its service, or select or install any appliance or equipment designed to use its service, in preference to a competing form of energy. A demand-side management program approved by the Commission, with the object of encouraging customers to conserve energy or to shift demand from or reduce demand during peak periods, shall not be considered a promotional actiyity for the purpose of this subehapter. (PL’s Mem. Opp. Ex.'57 (“PL’s Ex__”) (citing 52 Pa.Code. § 57.61)). The new regulations specifically forbid any utility, in the absence of PUC approval, from inter alia “[d]eliver[ing] anything of more than token value to an architect, engineer, builder, developer, or other person for services performed or to be performed in connection with realty, other than realty acquired or intended for acquisition by the utility for use in the conduct of its own business.” (Id. (citing 52 Pa.Code § 57.63(2))). In light of the PUC’s changed position, Yeagers II further limited PP & L’s immunity to past conduct: “[t]he fact that the PUC now prohibits such actions does not mean that PP & L should be denied , state action immunity for its past activity.” Yeagers II, 22 F.3d at 1269. 4. The Amended and Consolidated Complaint On August 11, 1995, Plaintiffs filed an Amended and Consolidated Complaint (“Am. Compl.”) containing additional factual allegations. Specifically,. the Amended Complaint alleges that PP & L received advanced notice of all new construction in its service area, offered developers and builders cash grants for the installation of electric heat, and sought commitments from developers and builders to exclude fossil fuel from new developments. According to Plaintiffs, PP & L also offered and made cash payments to contractors and customers whose residences were already heated by fossil fuel in an effort to persuade them to convert those heating systems to electric (“conversion grants”). In exchange for the grants, the contractors and homeowners had to agree that the electric heating device would not be supplemented by any fossil fuel device. The Amended Complaint presents eight Counts: § 1 of the Sherman Act (Count I); section 2 of the Sherman Act (Count II); section 2(c) of the Robinson-Patman Act (Count III); section 3 of the Clayton Act (Count IV); common-law restraint of trade (Count V); tortious interference with contractual relations (Count VI); unfair methods of competition (Count VII); and civil conspiracy (Count VIII). (See Def.’s Mem. Supp. Mot. Summ. J. Ex. 1) (“Def.’s Ex._”). 5. Scope of the Remand PP & L is immunized only for the cash grants and other incentives it offered before July 24, 1993 — including special rates for customers who installed high-efficiency heating systems — that were not conditioned on, or exchanged for, an agreement to exclude oil or fossil fuel for such residential uses. All other alleged incentives — including both the conversion grants and the all-electric agreements — which properly fall within the purview of the Amended and Consolidated Complaint, and which the Court has not dismissed, constitute the present scope of this litigation. The Court will examine such conduct herein, if and as implicated by PP & L’s Motion. B. FACTUAL BACKGROUND In the instant case, the parties performed extensive briefing and offered submissions designed to substantiate their respective theories of the case. They present different interpretations of the events that transpired in the heating, fuel, and equipment market in central and northeastern Pennsylvania between the late 1970s and the early 1990s. At this point, the Court examines both Plaintiffs’ and PP & L’s positions. 1. Plaintiffs’ Position (a). Costs and Efficiency Oil and fossil fuel present the most cost-efficient heating systems and are less to install and operate than their gas and electric counterparts. Electric heat involves heat pump systems as well as baseboard heating systems. When heating a space, the heat pump gathers outside air, funnels it through the pump, increases the air’s temperature, and releases the air through vents into the space being heated. If the temperature drops below 45 degrees, the heat pump becomes inefficient. (Pl.’s Ex. 4 at 103). “Resistance” or baseboard heat costs much less to install than oil or gas but its operating costs are two and three times the price of oil or gas. (Pl.’s Ex. 1 at 161; Ex. 22 at 8). While the heat pump presents a more efficient alternative to the electric baseboard, its operating costs are 30% to 40% higher than fossil fuel. (Pl.’s Ex. 22 at 8). In the space heating context, oil costs $11.07 per million Btu, gas $11.40, electric baseboard heat $22.56, and heat pump heat $13.77. (Pl.’s Ex. 48). When heating water, the heat pump costs $10.25 per million Btu, with gas and oil costing $9.79 and $9.37 respectively. (Id.). When combined with oil as a supplemental heating system, however, the heat pump presents a lower operating cost than any single source of heat, lower than regular electricity, oil, propane, or the ordinary, unsupplemented heat pump. (Pl.’s Ex. 1 at 343; Ex. 17). Electric heat also imposes higher installation costs. Specifically, in 1989, gas (forced air) cost $1,600 to install and $450 per year to operate, while the same numbers for oil, electric baseboard, and heat pump systems were $l,900/$429, $800/$l,245, and $3,000/ $623 respectively. (Pl.’s Ex. 26 at 2). Electric rates have generally increased more rapidly than oil or gas. Between 1980 and 1990, electric rates increased 91%, gas rates increased 43%, and oil rates decreased 8% (Pl.’s Ex. 49). Electric heating equipment also depreciates and becomes obsolete faster than oil heating equipment. A heat pump only lasts for 10 to 15 years while oil heating equipment might last 30 years. (Pl.’s Ex. 58 at 16; Ex. 8 at 148). (b). Programs and Initiatives “As PP & L emerged from conservation directed programs in the 1970s and early 1980s, emphasis was directed to revenue growth while uncoupling the rate-of-demand growth.” (Pl.’s Ex. 49- at 8). PP & L’s revenue comes from three major sources, the residential market ($800,587,000); the commercial market ($647,949,000); and the industrial market ($503,806,000). (Pl.’s Ex. 41). The residential market, by far the largest, became the target for revenue growth. In 1982 and 1983, PP & L sought to increase its sales by 3]é% '(Pl.’s Ex. 9 at 56-57). Several PUC decisions, however, undercut PP & L’s ability to generate revenue. Between 1978 and 1979, the PUC found that PP & L could no longer use the savings it achieved through sales to other electric utilities on an interchange to improve the earnings and profits of the company. Rather, the PUC ruled that.any savings accumulated had to be used to reduce the energy cost rate. (Pl.’s Ex. 9 at 52). Furthermore, in the early 1980s, PP & L constructed two nuclear power plants. Specifically, “Unit 1” of PP & L’s Susquehanna nuclear power plant began commercial operation in 1983, and “Unit 2” at Susquehanna began commercial operation in 1985. PP & L appealed, albeit unsuccessfully, to the PUC in both 1983 and 1985, asking for a rate .increase to offset the increased costs associated with constructing Unit 1 and Unit 2. The PUC found, however, that PP & L was experiencing capacity that exceeded its requirements for the remainder of the century. (Def.’s Ex. 66 at 2-3; Pl.’s Ex. 9 at 53). In order to increase its revenues, PP & L now had to make “sales through [its] own customers or through contract sales to other entities.” (PL’s Ex. 52). PP & L looked to the residential market, specifically heat pumps, as the vehicle to increase kilowatt hour sales. (See PL’s Ex. 9 at 90; Ex. 28 (describing heat pumps as “the solution to PP & L’s long term marketing needs”); Ex. 49 (remarking “[t]he electric heat pump is the primary competitor of gas heat in both single family and multi-family houses”)). PP & L also began offering cash incentives for the installation of “offpeak” electric thermal storage systems which used heat pumps. As early as 1981, PP & L had been providing cash grants to. customers. (PL’s Ex. 9 at 69). Between 1985 and 1989, PP & L awarded between $750 and $1,200 per heat pump in “New Construction Grants” to customers who installed heat pumps. (PL’s Ex. 45 at 539; Ex. 55 at 1804-05; Def.’s Ex. 57). PP & L also began to approach developers to advance them advertising subsidies. (PL’s Ex. 9 at 75, 95). PP & L has always been cognizant that (1) builders decide what type of heating equipment will be placed in a home and (2) installation cost is a “critical” concern for new home builders. (PL’s Ex. 1 at 124-25; Ex. 26 at 2).- PP & L therefore began to leverage its strong rapport with developers, assigning its best consultants to develop long term relationships. PP & L recognized that neither the oil nor gas companies, both , of which lacked extensive personnel and organization, could match this effort. (PL’s Ex. 9 at 73; Ex. 25). PP & L also reached out, in this respect, to the actual equipment contractors, forming the Central Eastern Pennsylvania Heat Pump Association (“CEPHPA”). PP & L required, as a condition for receiving grant payments, that a CEPHPA member install the heat' pump. (PL’s Ex. 38 at 154650). In addition, PP & L engaged in cooperative advertising programs with heat pump contractors, furnished both labor and equipment warranties for heat pumps sold by those contractors, and offered installation bonuses for those contractors. (PL’s Ex. 22 at 7). (c). Specific Anticompetitive Conduct Between 1983 and 1995, PP & L paid in excess of $25 million in grants to builders, developers, and homeowners in an effort to induce the use of electric home heating in its service territory. (PL’s Ex. 60). PP & L designed these grant programs to block the extension of gas and fossil fuels into newly constructed developments. PP & L paid some grants in advance, in the hope that all homes in a new development would contain electric heating. (PL’s Ex. 22 at 5). In addition to cash incentives, PP & L provided builders with model homes and cooperative advertising arrangements. (PL’s Ex. 22 at 4; Ex. 24). The model home grants involved payments of up to $3,100 per model home, with PP & L paying the builder or contractor to install electric storage heating and water heating in the model. Under the cooperative advertising arrangements, PP & L would provide grants for the model home installation of heat pumps, extend advertising allowances, pay as much as 50% of a builder’s advertising costs, and provide development or on-sight signs and promotional materials. (Pl.’s Ex. 22 at 4-5). In 1986, the price of gas and oil dropped substantially, increasing competition from both gas and oil companies in the heating market. (PL’s Ex. 9 at 93-94). In an effort to respond to this surge in competition, PP & L 'began using, as early as 1987, the all-electric agreements. (PL’s Ex. 24). The all-electric agreement was essentially a contract entered into between PP & L and a builder or developer that typically contained the following provision: “[d]eveloper agrees that the entire Development will consist of only electrically heated houses. Completion of a nonelectrieally heated house' shall void this Agreement, and the System grants for future houses in Development will be those announced by PP & L for the applicable time period.” (PL’s Ex. 31). The all-electric agreement required that (1) the structure built would be a “new single, town, twin, condominium, apartment, or manufactured home with a high efficiency air- or ground-sourced heat pump;” (2) the customer would install electric domestic water heating; (3) CEPHPA, and only CEPHPA, would install the heat pump; and (4) the heat pump would not be supplemented by oil, kerosine, coal, or natural or bottled gas. PP & L, although not a manufacturer of heat pumps, agreed to furnish extended warranties for heat pumps installed by CEPHPA. In exchange, the builder would receive a string of cash grants upon the installation of each system (or sometimes in advance), a cooperative advertising allowance, and reimbursement of cooperative advertising expenditures. In addition, the builder or developer agreed to actively promote heat pumps and to inform PP & L of the names of prospective home buyers for contact by PP & L. (PL’s Ex. 22; Ex. 31; Ex. 74). The agreements also applied to a developers’ conversion of an existing home, imposing the same no supplementation requirement. While PP & L employed the all-electric agreements as marketing tools as early as 1987, it did not inform the PUC of this practice until May, 1995. (PL’s Ex. 30; Ex. 31; Ex. 36; Ex. 38; Ex. 61; Ex. 63; Ex. 64; Ex. 65; Ex. 67). Certain benefits associated with its status as the sole source of electric power in the region provided PP & L with unfair advantages. PP & L identified the significant home developments through its “Major Load Study.” (See PL’s Ex. 70 (using Major Load Study results to identify developments “that have committed a portion or the entire development for the installation of fossil fuel heating systems” and suggesting that action be taken to contact the builders and convince them that electric is a better alternative than fossil fuels)). PP & L received advance notice of new construction; enclosed “bill inserts” in electric bills as advertisements; provided underground wiring allowances to builders in contravention of a PUC ruling that builders were responsible for trenching and backfilling; disbursed payments through its thermal integrity program; and reimbursed builders for the costs of interior improvements. (PL’s Ex. 8 at 144-47, 218-19; Ex. 9 at 127-28, 148; Ex. 39; Ex. 43 at 4; Ex. 66; Ex. 74; Def.’s Ex. 59 at 410). PP & L also began initiatives to convert non-electrie, existing homes to electric heat by using its customer database and the aforemenT tioned bill inserts to target customers and by extending low-interest loans. A homeowner making the conversion could not supplement the electric system with an oil or gas system. (PL’s Ex. 9 at 127; Ex. 43 (stating “[t]he only market which has significant potential above and beyond that which we are presently addressing is the residential conversion market”); Ex. 72; Def.’s Mem. Supp. Mot. Summ. J. at 8; Def.’s Ex. 52; Ex. 53). PP & L increased its market share of the new home market from 61.5% in 1981 to about 84% in 1986. This saturation (84% of the market) was 17% higher than the nearest utility, the Philadelphia Electric Co. (PL’s Ex. 8 at 135). As of November, 1987, only 9% of all new construction had oil heat. (PL’s Ex. 22 at 2). Despite PP & L’s near control of the new construction market in 1986, it initiated the all-electric agreement program in the following year (1987) to further the anticompetitive goal of complete domination. Between 1981 and 1995, 72% of all new homes built in PP & L’s service area were electrically heated. ■ (Pl.’s Ex. 46). According to estimates computed by PP & L in 1987, the absence of these marketing efforts would have reduced its share of the new home market to 55%. (Pl.’s Ex. 22 at 2). In 1980, the last year before the grant program was initiated, heat pumps were found in only 12.1% of new residences. Between 1987 and 1995, 42,797 heat pumps were installed in 133,756 newly constructed residences, and the market saturation of heat pumps increased to an average of 32% during this period. (Pl.’s Ex. 46). In 1990, oil-heated households accounted for 41% of the market in the entire northeastern United States and 40% of the market in PP & L’s service area. (Pl.’s Ex. 49 at 2). 2. PP & L’s Position PP & L offers a different interpretation of the facts regarding the home heating market in its service area. In the late 1970s, the PUC imposed strict regulations on gas companies that severely constrained line extension and essentially removed gas as a competitor from the heating market. The stringent PUC guidelines acted as a de facto “gas ban.” (Def.’s Ex. 10 at 36-37). Beginning in 1981, PP & L began promoting the use of residential electric heating systems which used energy in off-peak periods. In 1982, PP & L offered cash grants of up to $1,200 to approximately 250 customers to encourage the installation of these systems and to offset their high installation costs. (Def.’s Ex. 57 at 378). PP & L required that, in exchange for these grants, the customer would agree to refrain from supplementing the system with another heat source. PP & L imposed this requirement to recoup its initial investment in disbursing the grant. (Def.’s Ex. 8 at 141). This system has carried different names over the years, i.e., the RTS System, the Electric Thermal Storage (“ETS”) system, and the Supplemental Electric Storage Systems (“SESS”) system. In 1983, PP & L initiated the conversion grant program that offered cash grants for customers who converted from fossil fuel to off-peak electric heating systems. In 1987, PP & L added highefficiency electric heat pumps to 'the list of heating systems that entitled customers to cash grants. (Pl.’s Ex. 43). A typical conversion agreement required that CEPHPA install the heat pump, that the customer not supplement the system with a fossil fueled system, and that the customer install electric domestic water heating. Between 1988 and 1990, PP & L converted 350 homes. (Def.’s Ex. 15; Ex. 52; Ex. 53; Ex. 59). During the same period, PP & L was losing between 2,000 and 3,000 electric heat accounts per year. (Def.’s Ex. 11 at 228). (a). Gas Utility The PUC lifted the gas ban in the mid-1980s, and gas companies, specifically UGI Utilities (“UGI”), launched aggressive marketing initiatives designed to increase their share of the residential heating market. In 1987, UGI intensified marketing efforts in both commercial and residential markets against, electric and fuel oil companies, resulting in increased market share. Specifically, UGI’s share of the market for new homes constructed in its territory grew from 12% in 1987 to over 50% in 1995, and in 1995, UGI held a 98% market share in new residential developments where natural gas was available. In 1995, 60% of UGI’s additions came from new home construction and 40% came from conversions from other fuels, principally oil. In the aggregate, between 1987 and 1995, UGI converted approximately 20,857 residential customers from other heating fuels to natural gas, 68% of which came from oil and 16% of which came from electric. Like PP & L, UGI uses cash rebates, enters into agreements with builders and developers, extends gas mains at no charge, offers reduced rates,'engages in cooperative advertising with builders and developers, uses grants to induce conversion, and sells gas appliances at retail. (Def.’s Ex. 49 ¶¶ 4, 5, 8,10,11,14,15; PL’s Ex. 49). (b). All-Electric Development Agreements In 1987, as competitive pressure from the gas utilities mounted, PP' & L responded with the all-eleetric agreements, requiring that each development be “all-electrie” and contain a minimum of 10 lots. (Def.’s Ex. 10 at 90; Ex. 16; Ex. 21). Because developers build over an extended period of time, they grew concerned that the grant levels might be reduced and that the payment of sequential grants as the homes reached completion would prove inadequate. To allay these fears, PP & L began to advance the grant money. (Def.’s Ex. 9 at 235-36). In 1989, PP & L expanded the new construction grant programs and the all-electrie agreements to encompass the installation of high-efficiency heat pumps. (Def.’s Ex. 8 at 148-49; Ex. 9 at 218; Ex. 18). PP & L ceased using the all-electric agreements as a marketing tool after the PUC changed its regulations with regard to promotional activities in July, 1993. (Def.’s Ex. 66 at 4-5). (c). Market Reaction Between 1984 and 1995, PP & L’s share of the entire home heating market never exceeded 31%. Beginning in 1972, PP & L’s share of new residential connections was 44%. This number increased steadily until reaching an all time high in 1986 of 84%. From 1986 to 1995, however, that share declined to 53%. From 1981 through 1986, as PP & L’s market share increased, PP & L paid grants for off-peak electric systems with respect to 1,587 new homes out of a potential 74,924 in its service area, only 2%. In 1986, when PP & L achieved its highest market share of new residential units, PP & L had not yet employed the all-electric agreements as a marketing tool (first used in 1987), and there was no program in effect to disburse heat pump grants (until 1989). (Def.’s Ex. 14; Ex. 17; Ex. 24; Ex. 55; Pl.’s Ex. 52). PP & L holds a smaller market share (31% or 333,317) of all homes in its service area (1,074,015) than the oil dealers (35.4% or 380,463). (Def.’s Ex. 14; Ex. 20). Between 1981 and 1995, PP & L paid grants for electric heat installations in only 29,512 homes out of a potential 208,681 new home connections made in those years. In the years between 1987 and 1995, PP & L entered into only 120 all-electric agreements out of a potential 1,500 new residential developments started in its area. (Def.’s Ex. 10 at 253; Ex. 24). Similarly, the provisions in those agreements requiring that all units contain electric heating systems proved ineffective. From 1987 through 1995, PP & L’s share of the new residential market steadily declined. Indeed, several builders and developers testified that they installed the heating system of their choice irrespective of the language articulated in the all-electric agreements. Out of the new developments started in PP & L’s service area, some 85% chose not to enter into grant agreements with PP & L. (Def.’s Ex. 21; Ex. 25; Ex. 29; Ex. 30; Ex. 31; Ex. 35; Ex. 41; Ex. 44; PL’s Éx. 49). II. STANDARD OF REVIEW “At one time, the Supreme Court endorsed a slightly stricter standard of review when a summary judgment order was challenged in an antitrust case.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 747 (3d Cir.1996) (citations omitted). The Supreme Court abandoned that approach, however, in 1992, and the ordinary Rule 56 standard still applies. Id. (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468-69, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992)). See Town Sound and Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 481 (3d Cir.) (stating “[i]t may be that because antitrust cases are so factually intensive that summary judgment occurs proportionately less frequently there than in other types of litigation, but the standard of F.R.C.P. remains the same”), cert. denied, 506 U.S. 868, 113 S.Ct. 196,121 L.Ed.2d 139 (1992). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only “material” if it might affect the outcome of the case. Id. Rule 56(c) directs summary judgment “after adequate time for discovery ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). III. FEDERAL ANTITRUST LAWS A. SHERMAN ACT §2 Section 2 of the Sherman Act provides: “Monopolizing trade a felony; penalty[:] Every person who shall monopolize, or at-, tempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C.A. § 2 (West Supp.1996). Plaintiffs’ § 2 claim alleges “PP & L’s actions constitute abuse of monopoly power, attempt to monopolize, leveraging of monopoly, predation through governmental processes and conspiracy to monopolize.” Am. Compl. ¶ 64. PP & L’s Motion seeks summary judgment on these claims, maintaining (1) it “has not monopolized or attempted to monopolize the home heating market in violation of Sherman Act § 2,” (2) that absent market power, there is no “predatory conduct” within the meaning of § 2 of the Sherman Act, and (3) “Plaintiffs’ Monopoly leveraging theory has no merit.” (See Def.’s Mem. Supp. Mot. Summ.J. at 18, 42). 1. Attempted Monopolization To establish a successful claim under § 2 of the Sherman Act for attempted monopolization, Plaintiffs must “present concrete evidence that (1) [PP & L] had engaged in predatory conduct or anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability of achieving monopoly power.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 750 (3d Cir.1996). See also Pennsylvania Dental Ass’n v. Medical Serv. Ass’n of Pennsylvania, 745 F.2d 248, 260 (3d Cir.1984) (listing only two elements for attempted monopolization claim, “(1) a specific intent to monopolize; and (2) the consequent dangerous probability of success within the relevant geographic and product markets” but stating “[djirect evidence of specific intent need not be shown; it may be inferred from predatory or exclusionary conduct”) (citing inter alia Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939); United States v. Jerrold Elec. Corp., 187 F.Supp. 545, 567 (E.D.Pa.1960), aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961)), cert. denied, 471 U.S. 1016, 105 S.Ct. 2021, 85 L.Ed.2d 303 (1985). (a). Specific Intent “[Plaintiffs' alleging [attempted] monopolization under § 2 must produce intent evidence.” Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1199 (3d Cir.1995). “Specific intent is the intent to accomplish the forbidden objective, an intent that goes beyond the mere intent to do the act. Intent may be inferred by anticompetitive practices or proven by direct evidence.” Great W. Directories, Inc. v. Southwestern Bell Tel. Co., 63 F.3d 1378, 1385 (5th Cir.1995), withdrawn and superseded in part, 74 F.3d 613 (5th Cir.1996). In establishing specific intent, “a mere-intention to prevail over rivals or improve market position is insufficient. Even an intent to perform acts that can be objectively viewed as tending toward the acquisition of monopoly power is insufficient, unless it also appears that the acts were not predominantly motivated by legitimate business aims.” Pennsylvania Dental, 745 F.2d at 260-61 (citations omitted). Plaintiffs maintain that the record contains ample evidence of PP & L’s specific intent to monopolize the residential heating market. Furnishing direct evidence, Plaintiffs point to a statement made by a PP & L marketing executive that “[w]e’re striving for total dominance in the new home market. We believe you can put electric heat into at least 85% of all new homes built in our service area this year.” (Pl.’s Ex. 43 at 4). PP & L’s consistent attempts to increase market share, even after achieving an 84% share in the new home market and a 98% share in the vacation home market, argue Plaintiffs, indicates an unrelenting intent to monopolize. (Pl.’s Ex. 1 at 65-66; Ex. 5 at 85-87). Plaintiffs also point to restrictive covenants PP & L inserted in property deeds requiring that electricity constitute the sole source of energy for homes constructed on the land. (Pl.’s Ex. 53). Plaintiffs rely on Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 609 n. 39, 105 S.Ct. 2847, 2860 n. 39, 86 L.Ed.2d 467 (1985) (stating “[p]roof of specific intent to engage in predation may be in the form of statements made by officers or agents of the company ... or evidence that the conduct was not related to any apparent efficiency ”) (citation omitted) and Kelco Disposal, Inc. v. Browning-Ferris Indus. of Vermont, Inc., 845 F.2d 404, 408 (2d Cir.1988) (remarking that “tough talk by defendant’s employees, coupled with the proof of predatory pricing, more than supports the jury’s finding of a specific intent to monopolize”), aff'd, 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Plaintiffs suggest the record also contains proof of predatory conduct that serves as indirect evidence of specific intent. Plaintiffs first point to PP & L’s use of grants, model homes, and cooperative advertising to foreclose competition. Plaintiffs also note that PP & L’s director of marketing wrote, in an October 1989 paper titled “Division Operations Strategic Planning Conference:” “Are less profitable market segments valuable if they help block the competition’s market development? Through a multi-market electric heat strategy, PP & L has limited the extension of gas lines, thus increasing sales in all segments.” (Pl.’s Ex. 27 at 2). Plaintiffs consider this statement indicative of PP & L’s intent to forgo profits in an effort to foreclose competition. Plaintiffs’ expert’s report suggests that the following illustrates PP & L’s intent to monopolize: (1) the exclusionary nature of the all-electric agreements; (2) marketing documents calling for the establishment of a strike force to counter competitive threats; (3) furnishing low-interest loans to homeowners willing to replace existing gas or oil systems with electricity; (4) PP & L documents describing grants and advertising subsidies as promotional incentives designed to block gas extensions into new developments and displace less costly competing sources of heat; and (5) an internal PP & L document stating “we are experiencing some of the highest saturation rates in the nation,” stating PP & L enjoyed “an overall 85% saturation,” and warning against “rapidly increasing competition from gas utilities and oil companies in the new home market.” (Def.’s Ex. 22 at 8-16). The expert concluded inter alia that PP & L aimed to increase market share, “even if the added growth did not meet its normal rate of return” because, in the words of a PP & L employee, “marketing is here to stay ... I don’t think we will ever return to the conservation days.” (Def.’s Ex. 22 at 24). Plaintiffs’ expert also believes PP & L relied on residential heating as a major opportunity to achieve growth and market penetration and that PP & L “attempted to achieve its goals by excluding competition even though affirmative methods of home heating were more cost effective.” Id. PP & L characterizes Plaintiffs’ proofs, specifically the statements made by PP & L employees, as nothing more than marketing rhetoric, pointing to Advo, 51 F.3d at 1199 (interpreting the statements “[1] the ultimate benefit of the TMC program was that [defendant] would be the ‘one stop buy,’ i.e., the only competitor left, in the eight county Philadelphia market when rates would become ‘upwardly adjustable’ ” and “[2] when you see the competition drowning, stick a water hose down their throat” as “isolated and unrelated snippet[s]” of “colorful, vigorous hyperbole” that “[t]he antitrust statutes do not condemn”). Any attempts to increase market share, argues PP & L, were both expected and lawful. See id. (remarking that firms “would try, as a first step, to wrest one or more of the[] large accounts away from [plaintiff]. [Defendant’s] proposals to [plaintiffs] largest customers are exactly what we’d expect from a legitimate competitor. That such behavior might be consistent with predation does not mean that [plaintiff] can survive [defendant’s] motion for summary judgment”). PP & L reminds the Court that the 84% market share figure discussed referred only to new homes and not all homes in PP & L’s service area. Furthermore, PP & L’s share of new homes has eroded since 1986, and its share of the entire residential market is below Plaintiffs’. According to PP & L, a regulated utility lacks any motivation to monopolize a market; once monopolized, it could not raise prices without PUC approval. In the past, PP & L has received PUC approval with sporadic success. PP & L points to the deposition of the PP & L employee explaining the “total dominance” remark: “[I]t’s marketing talk for aggressive marketing to — to compete strongly in a highly competitive marketplace and to strive for success [not seeking 100% of the market].” (Def.’s Ex. 93 at 90). Finally, attacking the restrictive covenant in the property deeds, PP & L notes that the deeds are dated 1966 and only ran for 10 years. (Pl.’s Ex. 53). The Court finds that the statements profféred in the instant ease provide stronger intent evidence than those evaluated in Advo. While Advo involved remarks appropriately characterized as nothing 'more than “aggressive” and “marketing rhetoric,” those comments spoke of economic benefits and were couched in motivational statements. By contrast, the record here contains statements reflecting a strategy of total domination of the residential heating market made by an employee of a monopoly with the financial resources to effectuate that objective. These statements reveal a shift in general policy from a conservationist approach in the late 1970s to an aggressive marketing approach in the mid 1980s that sought an increase in usage. Moreover, the remarks were uttered at a point in time when PP & L controlled a major ségment of the new residential construction submarket, and their exclusionary language pertains to all companies competing in the residential-fuel market as opposed to a specific and isolated competitor. See Syufy Enter. v. American Multicinema, Inc., 793 F.2d 990, 999 (9th Cir.1986) (finding “[a]lthough Mr. Syufy’s remarks to Mr. Durwood are arguably consistent with a simple desire to succeed in free and open competition, the jury could reasonably have inferred a specific intent to monopolize from the threat to run AMC out of town”), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 838 (1987). While the Court considers the statements presented more inculpatory and virulent than those examined in Advo, it concedes that other cases finding a specific intent to monopolize contained even stronger direct evidence. See Tasty Baking Co. v. Ralston Purina, Inc., 653 F.Supp. 1250, 1271-72 (E.D.Pa.1987) (finding specific intent evidence through (1) statements that defendant wanted to “take the competition out” and “then increase price” in a “basically noncompetitive atmosphere;” (2) the non-discovery of documents wherein defendants “considered the antitrust consequences” of their actions; (3) evidence defendants knew their conduct would implicate antitrust concerns; and (4) evidence defendants engaged in preacquisition considerations of how defendant would raise prices after the commission of predatory acts). In the case sub judies, the aforementioned statements, without more, provide only marginal direct evidence of a specific intent to survive a motion for summary judgment. Accordingly, the Court searches for indicia of anticompetitive or exclusionary conduct as indirect, corroborating evidence of specific intent to supplement the direct evidence proffered. The Court therefore defers ruling on the specific intent issue until it considers the predatory conduct prong of the attempted monopolization elements. See Conoco, Inc. v. Inman Oil Co., Inc., 774 F.2d 895, 905 (8th Cir.1985) (stating “isolated statements by a single Conoco official ... whose primary function was to advance WCO’s competitive position, are insufficient to prove Conoeo’s intent to monopolize in the absence of corroborating conduct”); Ashkanazy v. I. Rokeach & Sons, Inc., 757 F.Supp. 1527, 1536 (N.D.Ill.1991) (concluding “[ajlthough fairly virulent, these statements, without more, do not give rise to a reasonable conclusion that Rokeach intended to monopolize — as opposed to gain a larger share of — the relevant market, and therefore we reserve judgment on the specific intent issue until we consider evidence of anticompetitive conduct”). (b). Predatory Conduct Plaintiffs substantiate their allegation of predatory and anticompetitive conduct by looking to the all-electric agreements, cash incentives, and other activity. The all-electric agreements, argue Plaintiffs, used grants, model homes, cooperative advertising, and no supplementation clauses to insure the installation of equipment, i.e., the heat pump, that required a permanent source of electricity. Many of these agreements provided the cash grants in advance, and, according to Plaintiffs, PP & L designed these agreements to block the use or extension of fossil fuel in new residential developments. (Pl.’s Ex. 38; Ex. 65). Plaintiffs also maintain that PP & L obtained agreements from builders stating that, in exchange for cash grants, the builders would refrain from installing gas line extensions. PP & L also reimbursed builders for trenching and backfilling costs. (Pl.’s Ex. 39; Ex. 64 (referring to agreement with “developer whereby he would not extend the gas lines beyond the first home, that has already been committed, if [PP & L] would reimburse him the cost of his trenching and back-filling”)). Plaintiffs suggest that builders also resisted homeowners’ efforts to install sources of heating other than the heat pump. (Pl.’s Ex. 94 at ¶4). Plaintiffs characterize this activity as predatory, designed to increase market share and not to produce superior efficiency, pointing to Aspen, 472 U.S. at 605, 105 S.Ct. at 2859 (noting “[i]f a firm has been attempting to exclude rivals on some basis other than efficiency, it is fair to characterize its behavior as predatory”). PP & L protests that its lack of market power and its inability to coerce buyers prevents the all-electric agreements from violating the antitrust laws. The all-electric agreements, notes PP & L, affected only 120 out of 1,500 potential developments and had no effect on 85% of the new homes built from mid-1981 through 1995 in PP & L’s service area. (Def.’s Ex. 24 ¶ 24). PP & L points to Plaintiffs’ deposition testimony that competition would not be restricted if 80% of the market was available. (Def.’s Ex. 70 at 203-04; Ex. 72 at 278-79). According to PP & L, the all-electric agreements constituted nothing more than legal and permissible discounts made on the condition that the buyer use PP & L’s product; PP & L relies on Advo, 51 F.3d at 1203 & n. 13 (finding discounts based on the total amount of advertising purchased by a customer, in conjunction with defendant’s failure to threaten to deny services to refusing customers, did not “offend antitrust principles,” especially where plaintiff offered the same discounts). PP & L also notes that both Plaintiffs and UGI offered similar agreements with developers. (Def.’s Ex. 49 ¶ 14(c) (mentioning program whereby UGI agrees to extend gas mains in exchange for non-written agreement from developer that gas usage would justify this investment); Ex. 81 at 128 (referring to program where in return for free use of the oil tank, the customer had to purchase all their heating oil from that specific company)). • ■ The evidence, maintains PP & L, reveals that the all-electric agreements did not prevent builders and developers from offering, choosing, or installing heating systems other than electric; PP & L did not penalize the builders who installed alternative heating systems in violation of the all-electric agreements by withholding electric service; developers agreements with PP & L reflected the developers’ own choices; and consumers felt no impact from the agreements because builders constructed “what buyers wanted.” (Def.’s Ex. 29 at 39; Ex. 31 ¶¶4®, 8; Ex. 32 ¶¶ 4(a), 6; Ex. 33 ¶ 12; Ex. 34 ¶¶ 6, 7; Ex. 35 ¶ 5(n); Ex. 36 ¶ 3(a); Ex. 39 ¶4; Ex. 40 ¶¶ 2-4; Ex. 41 ¶¶6-8; Ex. 42 ¶¶4, 10; Ex. 44 1fiI3(g), 5). PP & L blames Plaintiffs’ inability to effectively compete for new residential development business on their- failure to aggressively and competently market oil heat. PP & L points to deposition testimony that Plaintiffs did not know the identity of many of the builders or developers in their area. (Def.’s Ex. 31 ¶¶ 7, 8; Ex. 38 ¶ 6; Ex. 39 ¶ 13; Ex. 68 at 277-82; Ex. 70 at 193-94; Ex. 79 at 236-39; Ex. 80 at 243^8; Ex. 83 at 235-43; Ex. 85 at 212-14; Ex. 89 at 185-93). PP & L proffers legitimate explanations for the “no supplementation” clause: it allowed PP & L to recoup its investment in the grant program, and rate payers experienced increased benefits from the utilization of off-peak capacity. PP & L notes that Plaintiffs do not sell supplementary heating systems, and customers do not request them because of their high costs, i.e., the construction of a chimney for installation, and disadvantages associated therewith, such as reliability of supply, dirt, smell etc. (Def.’s Ex. 8 at 140-41; Ex. 11 at 216; Ex. 25 at 18-19; Ex. 27 at 61; Ex. 29 at 67-68; Ex. 45 ¶¶3-4; Ex. 46 ¶ 3; Ex. 47 at ¶¶3, 6; Ex. 48; Ex. 74 at 88). PP & L describes Plaintiffs’ allegations as disguised complaints about the competitiveness of PP & L’s legitimate marketing efforts, size, efficiency, and resources. According to PP & L, Plaintiffs have the same advance notice of new home developments but choose not to take advantage of it. To effectively market electric heating to builders and developers, PP & L personnel relied on nothing more than personal communication, attendance at land use planning meetings, systematic review of. the newspaper, and other similar means. (Def.’s Ex. 3; Ex. 5 at 438-39; Ex. 6 at 11; Ex. 25 at 22-23; Ex. 70 at 196-98; Ex. 74 at 100-04; Ex. 75 at 105; Ex. 77 at 167; Ex. 78 at 173; Ex. 87 at 72-73). PP & L maintains it created “CEPHPA” for the pro-competitive purpose of increasing the quality of heat pump installations and customer satisfaction, and CEPHPA never denied membership to any Plaintiff. (Def.’s Ex. 11 at 214-16; Ex. 12 at 127-28; Ex. 67; Ex. 77 at 93-94). Finally, PP & L contends that the 30 year old deed restrictions covered a meager 51 building lots for a 10 year period. “Predatory or anticompetitive conduct is that which unfairly tends to be exclusionary or tends to destroy competition.” Great W., 63 F.3d at 1385. See also Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 541 (7th Cir.1986) (remarking “[pjredatory conduct may be broadly defined as conduct that is in itself a violation of the antitrust laws or has no legitimate business justification other than to destroy or damage competition”); Aurora Enter. v. National Broadcasting Co., Inc., 688 F.2d 689, 695 (9th Cir.1982) (defining predatory conduct to include “conduct amounting to a substantial claim of restraint of trade or conduct clearly threatening to competition or exclusionary”). The question of whether the Court may consider conduct exclusionary “cannot be answered by simply considering its effect on [plaintiff]. In addition, it is relevant to consider its impact on consumers and whether it has impaired competition in an unnecessarily restrictive way.” Aspen, 472 U.S. at 605, 105 S.Ct. at 2858-59. Viewing the submissions in the light most favorable to Plaintiffs, the Court finds evidence of conduct that a jury could consider predatory. Here, a monopolist with enormous financial resources persuaded builders and developers to exclude-competing sources of heat through aggressive marketing strategies that involved cash incentives, advertising promotions, and advance notice of new eonstmction. PP & L targeted builders knowing they are the primary decision makers regarding the installation of heat systems in new homes and entered into exclusive dealing arrangements with them that may have violated § 1 of the Sherman Act. As the sole provider of electricity, the all-electric agreements translate into “all-PP & L” agreements and guarantee PP & L a steady stream of future cash flow. These all-electric agreements applied to both new homes and any existing homes that the builders developed. PP & L essentially used its position to establish itself as a major force in the new construction market by excluding others on some basis other than superior efficiency. Consumers suffered from this conduct because PP & L locked new homeowners into inefficient and expensive sources of heat, restraining their ability to obtain less-costly and more efficient heating systems. Revisiting the question of specific intent, the Court concludes that the aforementioned statements could convince a jury that PP & L intended to dominate the new residential heating submarket, that PP & L advanced that intent, and that the all-electric agreements codified PP & L’s desire to dominate and assisted in the realization of that objective. When considered in conjunction with exclusionary conduct, a jury could conclude that the aforementioned statements evince PP & L’s specific intent to monopolize the residential heating of new homes. The different interpretations of market trends and economic performance proffered by the parties reveal genuine issues of material fact concerning both the presence or absence of specific intent and the character, either predatory or competitive, of the conduct designed to actualize that intent. For example, a jury could reach two different factual conclusions regarding PP & L’s choice to implement the all-electric agreement program in 1987 after achieving an 84% share of the new construction submarket in 1986: (1) PP & L aimed to dominate the new construction submarket; or (2) PP & L had to increase the virulence of its marketing programs to counter fierce competition from rapidly expanding gas companies. Accordingly, the Court finds genuine issues of material fact with regard to the special intent and predatory conduct elements of Plaintiffs’ attempted monopolization claim. (c). Dangerous Probability of Success Evaluation of an attempted monopolization claim also involves a finding of a dangerous probability of achieving monopoly power. This determination requires an “inquiry into the relevant product and geographic market and the defendant’s economic power in that market.” Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508, 512-14 (3d Cir.1994) (remarking “the law directs itself to conduct which unfairly tends to destroy competition itself____ [Section] 2 makes the conduct of a single firm unlawful only when it actually monopolizes or dangerously threatens to do so”) (citation omitted). See also Great W., 63 F.3d at 1385 (stating “[dangerous probability of achieving an actual monopoly position is customarily assessed by looking at the defendant’s market share. If the defendant possesses a large share, it will likely be concluded that the defendant’s conduct, if undeterred, will result in an actual monopoly”); 3 Von Kalinowski, Antitrust Laws and Trade Regulation § 20.01 [5] (1996) (remarking “[i]n deciding whether there is a dangerous probability of success, courts analyze the defendant’s market share in light of the market structure”) (citation omitted) (“Von Kalinowski”). (i). The Relevant Market In order to determine the dangerous probability of monopoly power, the Court must first establish the definition of the relevant market. Plaintiffs bear the burden of defining the relevant market. Pastore, 24 F.3d at 512. The relevant product market consists of “commodities reasonably interchangeable by consumers for the same purposes. Factors to be considered include price, use and qualities. Accordingly, the products in a relevant product market would be characterized by a cross-elasticity of demand.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 198-99 (3d Cir.1992) (citations omitted), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993). See also SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056, 1063 (3d Cir.) (describing the relevant product market as “those groups of producers which, because of the similarity of their products, have the ability — actual or potential — to take significant amounts of business away from each other”), cert. denied, 439 U.S. 838, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978). Courts also examine the relevant “geographic” market that includes “the area in which a potential buyer may rationally look for the goods or services he or she seeks.” Pennsylvania Dental, 745 F.2d at 260 (citation omitted). Within the relevant market, a “submarket” may exist, “evidenced by such practical indicia' as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Pastore, 24 F.3d at 513 (citation omitted). Market definition presents a question of fact for jury resolution that the Court may resolve on a motion for summary judgment if the record does not present any material factual disputes. See Town Sound, 959 F.2d at 497 (Sloviter J., concurring and dissenting) (remarking