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The Distinction Between Monopoly and Monopolization in Antitrust Law

Prepared for Members and Committees of Congress

Antitrust law does not mandate either that markets be competitive, or that they contain some
predetermined number of participants/competitors; it is concerned, rather, with the operation of
markets, on the assumption that a properly functioning market (i.e., one in which there is an
opportunity for viable competition, and is not skewed by the predatory actions of participants),
will best protect consumers. “Monopoly” and “monopolist” are, therefore, merely descriptive
terms, used to illustrate situations in which a single entity (or group of entities) possesses
effective control of the market in which it operates; neither term implies anything about the
lawfulness of the monopoly possessed. “Monopolization,” on the other hand, is the term used in
antitrust law to characterize as unlawful a situation in which a monopolist—irrespective of
whether his monopoly has been lawfully achieved—couples his monopoly status with behavior
designed to unfairly exploit, maintain, or enhance his market position. Similarly, “attempted
monopolization”connotes a situation in which an entity unlawfully or unfairly attempts to secure
a market monopoly. The long-standing, judicially created Rule of Reason, which involves
balancing an anticompetitive action with any procompetitive results, underscores those facts.
Whether a market participant who is a monopolist must deal with anyone who desires to deal with
it continues to be largely governed by the so-called Colgate doctrine. In 1919, in United States v.
Colgate & Co. (250 U.S. 300), the Supreme Court recognized the unfettered “right” of a private
vendor “to exercise his own independent discretion as to parties with whom he will deal ....”
Colgate notwithstanding, the existence of an “essential facility” (i.e., a necessary component of a
potential competitor’s business and which is both unavailable from any source other than the
alleged monopolist and cannot be reasonably duplicated), once established, has generally been
thought to impose a duty to deal with the actual or potential competitors of even a lawful
monopolist. The continuing viability of the so-called “essential facilities” doctrine, however, was
called into question by the Supreme Court’s 2004 ruling in Verizon v. Trinko (540 U.S. 398).
The Antitrust Division of the Department of Justice (DoJ) and the Federal Trade Commission
(FTC) each operate on the assumption that the monopoly status of competitors is antitrust-
relevant only insofar as their actions may impact the operation or competitiveness of markets.
This report—which explores the difference between monopoly and monopolization as those
terms are used in antitrust law, and the differing enforcement consequences of each—will be
updated if case law or legislation alters the concepts it discusses. It is based on several existing
documents by the same author, including CRS Report RS20241, Monopoly and Monopolization -
Fundamental But Separate Concepts in U.S. Antitrust Law; CRS Report RS21723, Verizon
Communications, Inc. v. Trinko: Telecommunications Consumers Cannot Use Antitrust Laws to
Remedy Access Violations of Telecommunications Act; and Duty of a Monopolist to Deal, a
general distribution memorandum.

Introduc tion ..................................................................................................................................... 1



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