Regulated Industries

• Date: 02 June 2025

427

CHAPTER XIV

REGULATED INDUSTRIES

A. Agriculture

2. Regulatory Framework

a. Antitrust Immunity for Agricultural Cooperatives

The court in Othart Dairy Farms, LLC v. Dairy Farmers of America,

Inc.1 rejected defendants’ claims for immunity under the Capper-Volstead

Act for an alleged conspiracy to manipulate the prices paid for milk.

Although the court acknowledged that defendants might be permitted to

form an agreement under Capper-Volstead to market dairy products, it

concluded that they were not permitted to form an agreement to depress

prices paid to farmers participating in the defendant cooperatives.2 The

court rejected the defendants’ invitation to take into account the overall

regulatory framework, stating that “when the law [i.e. the Capper-Volstead

Act] so clearly articulates what actions it permits and prohibits, viewing

alleged conduct within the context of a permissive regulatory overlay, as

Defendants suggest . . . is unnecessary to aid in the Court's analysis.3

b. The Packers and Stockyards Act of 1921

The Department of Justice entered into a consent decree with Koch

Foods Incorporated for violating the Packers and Stockyards Act and

Section 1 of the Sherman Act.4 According to the government, Koch, one

of the largest poultry processors in the country, imposed termination

penalties on chicken farmers that switched to working for rival chicken

processors. Under the terms of the decree, entered on February 12, 2024,

1. Othart Dairy Farms, LLC v. Dairy Farmers of America, Inc., 701

F.Supp.3d 1087 (D. New Mex. 2024).

2. Id. at 1106.

3. Id.

4. United States v. Koch Foods, Inc. 2023 WL 8452305 (N.D. Ill. 2023)

(proposed Final Judgment in enforcement against Koch Foods, Inc. finding

that charging poultry growers an early termination fee is an unfair practice

under PSA)

428 2024 Annual Review of Antitrust Developments

the government required Koch to return these payments and enjoined

Koch from imposing termination payments in the future.5

B. Communications

1. Common Carriers

a. The Telecommunications Act of 1996

(3) FCC Implementation of the 1996 Act

In Assurance Wireless USA, L.P. v. Reynolds,6 the Ninth Circuit

rejected a group of carriers’ claim that the California Public Utility

Commission’s new “access line rule,” which imposes surcharges on

carriers based on number of active accounts, was “inconsistent with” (and

therefore preempted by) federal law, which imposes charges based on

revenue. The Court found that the “FCC rule—imposed on carriers for

funding the federal universal service program—says nothing about the

funding of state universal service programs” and that the carriers’

concession that they could not prove impossibility preemption was “fatal”

to their claim.7

b. Wireless Auctions

On April 22, 2024, the FCC announced via a public notice that the

agency was seeking public comment on the state of competition in the

communications marketplace to aid in its drafting of the 2024 edition of

the Communications Marketplace Report. 8 The public notice requested

information from the public on competition and service ability for fixed

broadband services and mobile wireless services, competition in the voice,

video, and audio marketplaces, and competition in satellite

communications services.9 On December 31, 2024, the FCC released its

5. United States v. Koch Foods, Inc. Case No. 1:23-cv-15813, D.I. 23 (Final

Judgment), (N.D. Ill. Feb. 12, 2024).

6. F.4th 1024, 1029 (9th Cir. 2024).

7. Id.

8. See FCC, OFFICE OF ECONOMICS AND ANALYTICS SEEKS COMMENT ON THE

STATE OF COMPETITION IN THE COMMUNICATIONS MARKETPLACE, GN

Docket No. 24-119 (2024), available at

https://docs.fcc.gov/public/attachments/DA-24-374A1.pdf.

9. Id. at 2-9.