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ESSENTIAL COMMUNICATIONS v. AMERICAN TEL. & TEL.

No. 78-2521.

610 F.2d 1114 (1979)

ESSENTIAL COMMUNICATIONS SYSTEMS, INC., Appellant, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, Western Electric Company and New Jersey Bell Telephone Company, Appellees.

United States Court of Appeals, Third Circuit.

Decided October 30, 1979.

As Amended November 5 and November 13, 1979.

Rehearing and Rehearing Denied November 23, 1979.

Attorney(s) appearing for the Case

David Berger (argued), H. Laddie Montague, Jr., Robert Simon Balter, Philadelphia, Pa., for appellant; Berger & Montague, P. C., Philadelphia, Pa., of counsel.

Bernard M. Hartnett, Jr., Donald B. Heeb, Copeland G. Bertsche, Newark, N. J., for appellee, New Jersey Bell Telephone Co.; Harold S. Levy, New York City, Donald K. King, Little Rock, Ark., Frank C. Cheston, of counsel.

Clyde A. Szuch, Frederick L. Whitmer, Pitney, Hardin & Kipp, Morristown, N. J., George L. Saunders, Jr. (argued), C. John Buresh, Sidley & Austin, Chicago, Ill., for appellees American Telephone and Telegraph Company and Western Electric Company.

John H. Shenefield, Asst. Atty. Gen., Barry Grossman, Ron M. Landsman (argued), Attys., Dept. of Justice, Washington, D. C., for United States as amicus curiae.

Before SEITZ, Chief Judge, and GIBBONS and HIGGINBOTHAM, Circuit Judges.

Rehearing and Rehearing In Banc Denied November 23, 1979.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order dismissing a private treble damage action and a request for injunctive relief brought under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26 (1976), on the ground that the conduct alleged in the complaint was exempt from antitrust scrutiny because it occurred in an industry and an area subject to...

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