The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths

Abstract

The antitrust “essential facilities” doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms. However, despite its recent endorsements, the doctrine’s criticisms linger. Many of the objections to the essential facilities doctrine are fueled by persistent myths and misconceptions, most prominently related to its economic justification, administrability, and propensity to entrench monopoly power. This Article lays out the case for the essential facilities doctrine in the digital economy and addresses the most common counterarguments that limit the doctrine’s potential to open digital markets.