Dispelling Myths: The Essential Facilities Doctrine in the Digital Economy

The essential facilities doctrine is back. Yet, despite its recent endorsements, the doctrine’s criticisms linger. They range from allegations that monopolies lack incentives to monopolize adjacent markets to doubts about the doctrine’s administrability and fears of error costs. They also include claims of entrenching monopoly power and decry severe limitations of the antitrust remedy. Many of these objections to the essential facilities doctrine are fueled by persistent myths and misconceptions. It is time to move on and leave the debunked myths and disproven misconceptions behind.

By Nikolas Guggenberger^[1]

The “essential facilities” doctrine is on the cusp of a reawakening in American antitrust law. The doctrine grants competitors the right to access essential facilities of monopolists to the extent that these competitors depend on the facilities and cannot reasonably duplicate them. This approach forced railroad companies and utility providers to share their infrastructure, for example. After a generation of decline, the doctrine is gaining momentum, as it has received prominent endorsements across the political spectrum: The 2020 Democratic House Majority, “Investigation of Competition in Digital Markets,” included the approach in its recommended toolkit to reign in Big Tech, as it its Republican counterpart, the brief report titled “Third Way.” In the same vein, several bills have just been introduced as part of a bipartisan “Anti-Mo