MEMORANDUM OPINION

BULLOCK, District Judge.

There are seventeen (17) Plaintiffs in this case. Sixteen (16) are electric distribution cooperatives ("EDCs") located mainly in rural areas of North Carolina. The other is the North Carolina Electric Membership Corporation ("NCEMC"), a cooperative formed by the Plaintiff EDCs — as well as other EDCs not themselves plaintiffs in this case. NCEMC's main function is to develop a viable generation and transmission ("G T") system to make its EDC members independent of the large utilities' wholesale power supply so that they can compete more effectively against those utilities in the retail power distribution market. The Defendant is Carolina Power Light Company ("CP L"), a large electric utility that provides retail and wholesale power to most of eastern North Carolina. CP L has been the principal supplier of wholesale power to the Plaintiff EDCs.

This antitrust dispute centers on alleged anticompetitive conduct which perpetuated CP L's monopoly control of the electric G T business at the Plaintiffs' expense. The matter is before the court upon several motions of CP L for summary judgment pursuant to Fed.R.Civ.P. 56. CP L's motions allege that (1) the Plaintiffs' claims are barred by the statute of limitations; (2) the Plaintiffs' evidence is insufficient as a matter of law to support any plausible antitrust theory; (3) the Plaintiffs lack standing to pursue their claims; and (4) the Plaintiffs' claims are barred by various doctrines of antitrust immunity.

The Plaintiffs contend that CP L has prevented NCEMC from building a G T system, which would have supplied the EDCs with wholesale power, by restricting NCEMC's access to power exchange services and by preventing NCEMC from obtaining the capital necessary to finance a G T system. As a result, the EDCs remain captive electricity customers of CP L, NCEMC has not developed an alternative wholesale power supply source, and NCEMC has not entered the G T business. The Plaintiffs allege that to accomplish this CP L conspired to restrain trade in violation of Section 1 of the Sherman Act and monopolized the G T business in violation of Section 2 of the Sherman Act through price-fixing, predatory pricing, and refusing to deal in good faith. The Plaintiffs have sued for an injunction requiring CP L to coordinate G T operations and planning with NCEMC and for damages of two types. They demand (1) financing by CP L of a G T system less the depreciated value of such a system had it been built in the 1950's — so-called Type I damages and a proxy for all the Plaintiffs' future damages; and (2) the difference between what the EDCs paid CP L for power and the cost of power from a hypothetical G T plant which allegedly would have been built absent CP L's bad conduct — so-called Type II damages and a proxy for all the Plaintiffs' past damages.

FACTS

Some of the facts in this case are disputed, but none that are material for determination of these motions. The Plaintiffs allege that for more than five decades CP L prevented NCEMC from building a G T system, thereby forcing the rural EDCs to remain dependent upon CP L for power. Without such a system, NCEMC could not compete for G T business in eastern North Carolina. CP L denies that it excluded NCEMC from the G T business and contends that it did not violate the antitrust laws.

The Plaintiffs' story begins in 1935 with the formation of the Rural Electrification Administration ("REA"). Aided by the federal government, EDCs began to develop throughout rural North Carolina. In the 1930's, allegedly feeling threatened by these potential competitors in the retail market, CP L supposedly tried to halt their growth by refusing to wheel power to them, by lobbying against Santee-Cooper and, once those efforts failed, by offering to buy the full output from Santee-Cooper, and by setting dual rates with the rural EDCs getting significantly lower rates than CP L's other customers. CP L allegedly took these steps not only to prevent competition in the G T business but also to keep the EDCs dependent upon CP L for electricity, thereby gaining an advantage in their competition with the EDCs in the retail market.

In 1944, to hasten the pace of rural electrification, the REA made loans available at two per cent (2%) interest to help rural EDCs obtain a dependable source of electricity. Allegedly to prevent the rural EDCs in North Carolina from getting these two per cent (2%) loans and building a G T system, CP L — along with Tide Water Power Company and Virginia Electric Power Company — lowered its rates to the EDCs. In 1945, CP L lowered its rates from between 12.0-15.0 mills per kwh to 7.5 mills per kwh. This rate continued until 1971.

The parties differ about the rate-making motivations of CP L. CP L contends it lowered rates due to pressure from Congress to electrify the countryside. The rate remained constant for twenty-six (26) years because CP L's cost of supplying power steadily decreased during this time. The Plaintiffs counter that CP L offered these rates for the aforementioned anticompetitive reasons. CP L's low rates allegedly ensured that the Plaintiff EDCs could not qualify for REA two per cent (2%) loan money since the REA would not make loans to EDCs which had a cheap, dependable source of power. CP L allegedly further frustrated the efforts of the EDCs to obtain an alternative source of wholesale power by withholding power exchange services from them.

The Plaintiffs argue that the 7.5 mills per kwh rate CP L charged the Plaintiff EDCs was below-cost. The Plaintiffs' expert, Harold H. Wein, is of the opinion that this rate was below CP L's reasonably anticipated long-run incremental cost of power supply. According to Wein, CP L could afford this loss due to cross-subsidization from the excess profits obtained from its other customers.

The parties strongly disagree about the reliability of the sources Wein considered in determining CP L was losing money on the 7.5 mills per kwh rate it charged the EDCs from 1945-71. According to the Plaintiffs, Wein relied on credible sources of evidence including CP L's admissions, data submitted to regulatory agencies, CP L's confirmed losses to other large industrial customers, the rising cost of equipment and material, CP L's lack of excess capacity, and an analysis that estimated the cost of power in 1949-50 from CP L's Lumberton Power Plant. CP L views Wein's cost calculations as misleading and argues that it never sold power to the rural EDCs below cost. CP L argues that Wein did not complete a formal study of the reasonably anticipated long-run incremental costs of supplying power to the EDCs and that most of Wein's figures are the product of speculative assumptions rather than actual cost records from the files of CP L.

Along with cost evidence, the Plaintiffs present direct and circumstantial evidence that CP L was pricing below cost. The Plaintiffs' direct evidence consists of a few statements by CP L executives indicating that the 7.5 mills per kwh rate was a subsidized rate, that CP L wanted to stifle any potential competition in the G T business, that CP L planned to thwart attempts by the EDCs to get REA financing for the construction of a G T system by lowering their rates, and that CP L enlisted Tide Water Power Company and Virginia Electric Power Company in this scheme.

The Plaintiffs' circumstantial evidence indicating that CP L's 7.5 mills per kwh rate to the EDCs was predatory is more extensive. The Plaintiffs point out that in March 1944 CP L represented to the REA that it could not reduce its rates to the EDCs because of increasing material, labor, and tax costs; next, CP L persuaded state regulators that those rates were just and reasonable; one year later, without any substantial reduction in its costs, CP L decreased its rates to 7.5 mills per kwh. The Plaintiffs also assert that the 7.5 mills per kwh rate could not have been based on cost considerations because it remained unchanged from 1945 to 1971. Furthermore, the Plaintiffs find it no coincidence that Virginia Electric Power Company and Tide Water Power Company decreased their rates to the EDCs a few years after CP L did. The Plaintiffs further contend that CP L subsidized the other utilities for the rates they charged. Finally, once it looked like two per cent (2%) financing from the REA was on the way out, CP L asked the Federal Power Commission for a thirty-two per cent (32%) rate hike to the EDCs.

Much of the Plaintiffs' circumstantial evidence revolves around alleged anticompetitive activities by CP L other than the 7.5 mills per kwh rate, such as the withholding of power exchange services. The Plaintiffs contend CP L opposed any program to help the EDCs lessen their dependence on CP L for wholesale power. The Plaintiffs cite numerous examples. The Plaintiffs argue that one common theme emerges — CP L was willing to go to great lengths to prevent the Plaintiffs from obtaining access to a G T system. The Plaintiffs allege that this plan continued through the seventies and early eighties. All of the anticompetitive inferences from these facts are disputed by the Defendant.

DISCUSSION I. Statute of Limitations

The Plaintiffs filed suit on August 17, 1977. Damages are recoverable under the federal antitrust laws only if suit is "commenced within four years after the cause of action accrued." 15 U.S.C. § 15b (1988). A cause of action accrues "when a defendant commits an act that injures a plaintiff's business." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971).

The parties agree that the Plaintiffs' various claims properly allege a continuing violation of the antitrust laws. The Supreme Court in Zenith explained how continuing antitrust violations are treated under the statute of limitations:

[E]ach time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. However, each separate cause of action that so accrues entitles a plaintiff to recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial.

[I]f a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date. . . . [I]t is hornbook law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable.

In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.

In summary, a claim of the Plaintiffs will not be barred by the statute of limitations if (1) CP L committed anticompetitive overt acts relating to that claim which injured the Plaintiffs on or after August 17, 1973, since that is within four years of the date the Plaintiffs filed their complaint; or (2) although the overt acts relating to that claim happened prior to August 17, 1973, the Plaintiffs were not injured until on or after that date because a cause of action accrues only if an overt act causes some injury; or (3) even if the Plaintiffs suffered some injury prior to August 17, 1973, if future damages were too speculative prior to that date then the portion of the claim relating to future damages survives, although the claim for past damages is barred.

A. Acts of CP L prior to August 17, 1973

It is undisputed that many of CP L's alleged anticompetitive overt acts took place well before August 17, 1973. Even some entire claims are based upon activities of CP L happening well before this date. For example, the Plaintiffs' predatory pricing and price-fixing claims pursuant to Sections 1 and 2 of the Sherman Act stem from the 7.5 mills per kwh rate that CP L charged the rural EDCs from 1945 to 1971. Also, many of the Plaintiffs' claims relating to the withholding of power exchange services and refusals to deal happened prior to August 17, 1973.

The Plaintiffs argue that the statute of limitations has not run on any of their claims because there was no fact of damage until after August 17, 1973, and, thus, their cause of action did not accrue outside the limitations period. Fact of damage occurs when there is "proof of some damage flowing from the unlawful conspiracy; inquiry beyond this minimum point goes only to the amount and not the fact of damage." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n. 9, 89 S.Ct. 1562, 1571 n. 9, 23 L.Ed.2d 129 (emphasis in original).

"The term `fact of damage' can be likened to the causation element in a negligence cause of action. The term means that the antitrust violation caused injury to the antitrust plaintiff." Pierce v. Ramsey Winch Co., 753 F.2d 416, 435 (5th Cir. 1985) (quoting Alabama v. Blue Bird Body Co., 573 F.2d 309 [5th Cir. 1978]). The normal inquiry on fact of damage is whether plaintiff's evidence shows that defendant caused injury to his business. Id. In the context of this motion, in which Defendant is arguing that fact of damage occurred prior to the limitations period, the court must determine when it was that Plaintiffs knew or should have known "as a matter of fact and with a fair degree of certainty" that Defendant caused Plaintiffs' injury. See id.; see also Brunswick Corp. v. Riegel Textile Corp., 578 F. Supp. 893, 898 (N.D.Ill. 1983), aff'd, 752 F.2d 261 (7th Cir. 1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985) (using "knew or could have discovered" standard).

According to Plaintiffs, the fact of damage from CP L's anticompetitive activities occurred in 1976 when the EDCs began paying CP L more for wholesale power than they would have paid had they built their own G T system back in the 1950's. Prior to 1976, the EDCs supposedly suffered no damage because CP L's power was the cheapest available. For support, Plaintiffs rely on the proposition that "[a]lthough the business of a monopolist's rival may be injured at the time the anticompetitive conduct occurs, a purchaser, by contrast, is not harmed until the monopolist actually exercises its illicit power to extract an excessive price." Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980).

Berkey is distinguishable from this case and therefore inapplicable. In Berkey, Berkey Photo, Inc., sued Eastman Kodak Company in its capacity as a customer claiming that it was paying monopoly prices for the supplies it purchased. By contrast, all the claims in this case rest on NCEMC's status as a potential competitor of CP L, unlawfully excluded from the G T business. Moreover, Kodak allegedly priced below-cost in order to obtain monopoly power and once this power was achieved charged monopoly prices in order to recoup any losses. The concern of the Second Circuit was that "it would undercut enforcement of the Sherman Act to hold that, if a monopolist merely retains its illicit market control for four years after its last anticompetitive action, it may charge an exorbitant price until its power is eviscerated in an appropriate suit for equitable relief." 603 F.2d at 296 (footnote omitted). To prevent such recoupment, the court tolled the limitations period. Recoupment is not a concern in this case. Plaintiffs' expert does not contend CP L ever recouped any monopoly profits and the EDCs admit that they have recovered overcharges by CP L through the regulatory process. Instead, the alleged harm to the EDCs is that CP L's below-cost pricing prevented NCEMC from building a G T system.

Judge Posner, a former antitrust professor, has explained that to a potential competitor "[e]xclusion from a market is a conventional form of antitrust injury that gives rise to a claim for damages as soon as the exclusion occurs . . . even though, in the nature of things, the victim's losses lie mostly in the future." Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 271 (7th Cir. 1984) (citing 2 P. Areeda D. Turner, Antitrust Law 232-33 [1978]). See Omni Outdoor Advertising v. Columbia Outdoor Advertising, 891 F.2d 1127, 1143 (4th Cir. 1989) ("`[In exclusion-from-a-market cases] . . . "just and reasonable inference[s] from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business [allows a conclusion] that defendants' wrongful acts had caused damage to the plaintiffs."'" [quoting Zenith, 395 U.S. at 123-24, 89 S.Ct. at 1576-77 [first bracket in original]]), rev'd on other grounds, ___ U.S. ___, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). The holding in Berkey is not to the contrary. The Second Circuit clearly stated that a monopolist's rival was injured at the time anticompetitive conduct occurs. 603 F.2d at 295 (emphasis added).

NCEMC was first injured in 1945 when it could not obtain a two per cent (2%) loan from the REA due to the low rates that CP L, Virginia Electric Power Company, and Tide Water Power Company charged for wholesale power and when CP L withheld access to power exchange services. Without financing or access to power exchange services, NCEMC could not build a G T system and enter that business. It is undisputed that Plaintiffs knew as early as 1945 that Defendant's low rate was preventing them from obtaining the loan. See Deposition of David A. Springs, at 463-64 (Sept. 23, 1985). Plaintiffs' evidence shows that rather than go into court in the 1940's or '50's or '60's to challenge CP L's activities, they chose to wait until CP L decided to raise their rates, meanwhile reaping the benefit of a lower rate. Id. at 483. Further, as of 1970, Plaintiffs had been discussing bringing suit to challenge CP L for some time, and only in 1977, with the benefit of hindsight, did they choose to sue.

Plaintiffs also argue that because they could not show monetary damages until 1976 their cause of action did not accrue until then, notwithstanding that the acts of Defendant occurred in the 1940's, '50's and '60's. As indicated above, exclusion from the G T business beginning in 1945 was itself injury and constituted fact of damage. Moreover, the court is not persuaded by Plaintiffs' evidence.

Plaintiffs' study shows a cumulative advantage trend beginning in 1976 and assert that the difference in actual and hypothetical cost from then until trial constitutes past damages. Plaintiffs disregard the damage suffered from 1962 to 1966 and in 1968 as not robust or supportive of a claim. See supra note 23. While Plaintiffs' damages may be greater in 1976 or 1991 than in 1962, monetary damage occurred in 1962 and so, under Plaintiffs' theory requiring monetary damage, their cause of action accrued. Additionally, in computing damages, Plaintiffs' study arbitrarily sets the cumulative total at zero (0) in 1976 and accumulates from that point. See Study of Southern Engineering Co. (Mar. 20, 1985) (Exhibit 9 of Appendix to Defendant's Memorandum in Support of Motion for Summary Judgment under the Statute of Limitations). In fact, starting in 1954, when Plaintiffs allegedly would have had a G T system on line absent Defendant's anticompetitive acts, it is not until 1984 that the cumulative impact becomes positive. Id. It would be absurd to require plaintiffs in predatory pricing suits to wait until the disadvantage to them was positive to bring suit. Plaintiffs' cause of action accrued when they first suffered injury and damage. Their accumulation theory must therefore be rejected.

Lastly, Plaintiffs' expert testified that Type II damages — reflecting the difference in cost of power to Plaintiffs — "could be made at any time." Deposition of Harold H. Wein, at 773-74, 785 (Sept. 9, 1985). Plaintiffs' study is no more than a summation of damages that began accumulating in 1962. Therefore, even under Plaintiffs' theory, this cause of action accrued no later than 1962.

The Plaintiff EDCs cannot enjoy the benefits of low wholesale power rates for decades without a complaint and then, once prices finally rise, complain that those same low prices excluded NCEMC from the G T business to their detriment. The appropriate time for this complaint would have been either during the 1950's after the REA turned down NCEMC's two per cent (2%) loan application, or in the 1960's after Plaintiffs first suffered monetary damage.

The Plaintiffs argue that even if their claim for past damage is time-barred their claim for future damage is not because the future damage from market exclusion was entirely speculative prior to August 17, 1973. It is clear that "uncertain damage, which prevented recovery" must be distinguished from "uncertain extent of damage, which did not prevent recovery." In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 73 (9th Cir.) (citing Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 579, 90 L.Ed. 652; Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 565-66, 51 S.Ct. 248, 251-52, 75 L.Ed. 544), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979). Once fact of damage has been proven, the extent of damage must be shown. However, because damages in antitrust cases are rarely susceptible to accurate computations courts are lenient in accepting proof of the extent of damage and allow "the jury [to] make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances `juries are allowed to act upon probable and inferential, as well as direct and positive proof.'" Bigelow, 327 U.S. at 264, 66 S.Ct. at 579 (quoting Story, 282 U.S. at 564, 51 S.Ct. at 251). "This rationale takes on special force in market foreclosure cases because probable and inferential proof is all that is available to hypothesize profits." Metrix Warehouse v. Daimler-Benz Aktiengesellschaft, 828 F.2d 1033, 1043 n. 20 (4th Cir. 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1753, 100 L.Ed.2d 215 (1988).

The Plaintiffs argue they could not reasonably quantify future damage from NCEMC's exclusion from the G T business during the 1950's and 1960's. With 20/20 hindsight, they cite numerous factors — the abrupt change in conditions in the electricity market following the Arab oil embargo, the timing of future CP L rate increases, and changes in leadership at the Federal Energy Regulatory Commission — which made any future damage estimate entirely speculative. Plaintiffs point out that the Supreme Court has stated claims for future damages probably would get "short shrift in the lower courts" if a plaintiff had to "predict market conditions and the performance of one competitor in that market five to 10 years hence." Zenith, 401 U.S. at 342, 91 S.Ct. at 808. However, the statute of limitations is not tolled simply in order to wait and see the condition of the particular market. Brunswick, 752 F.2d at 271. Indeed, since Zenith most circuit courts have declined to label future damage claims speculative. See, e.g., Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 240 (9th Cir. 1987) (lost profits for a business delayed in entering a market not speculative); Barnosky Oils, Inc. v. Union Oil Co., 665 F.2d 74, 83 (6th Cir. 1981) (uncertain market conditions caused by Arab oil embargo did not make future damage claim speculative); Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573 (4th Cir. 1976) (future damage claim of potential, but so far excluded, competitor in cable television market not speculative). The proper focus is whether future damages are speculative as viewed from the time the cause of action accrued without consideration for actual events that have occurred since that date.

In this case, the Plaintiffs' future damage claim is not speculative. Plaintiffs assert that Type I damages sought by them are a reasonable proxy for all future damage resulting from CP L's exclusionary conduct. As the testimony of Plaintiffs' expert indicates:

Type I damages represent the cost of constructing that system itself, less the depreciated value of the hypothetical system, as of the projected close of trial in mid-1986. This measure is a proxy for all the future Type II damages resulting from the persisting harm of defendant's past misconduct. Type I damages approximate the present worth of the future differences in plaintiffs' costs per kwh and purchased power at CP L's rates.

Affidavit of Harold H. Wein, at 10 (Jan. 13, 1986) (contained in Exhibit 1 of Appendix to Plaintiffs' Response Opposing Defendant's Motion for Summary Judgment under the Statute of Limitations). The calculation of Type I damages is simple and could have been made at any time since NCEMC's exclusion from the G T market began. It requires only that Plaintiffs estimate what the cost of building a G T system sufficient to service the EDC's needs would have been in 1950 when they allegedly would have begun construction — a calculation done for the present study — and a like estimate for the year of the trial of a timely suit. Type I damage, then, would be a simple comparison of the costs. Plaintiffs' future damages were not speculative.

The court finds that Plaintiffs' cause of action relating to overt acts of Defendant CP L prior to August 17, 1973, accrued outside the limitations period. The court also finds that any future damages resulting from the pre-limitations acts were not speculative. Therefore, the Plaintiffs' claims relating to overt acts of CP L prior to August 17, 1973, are barred by the statute of limitations.

B. Acts of CP L on or after August 17, 1973

Several overt acts by CP L allegedly injurious to NCEMC and the EDCs happened after the statute of limitations cut-off date of August 17, 1973. These overt acts include CP L's refusal to deal with the NCEMC concerning power exchange services, which prevented NCEMC from obtaining power from Georgia Power Company's Vogtle Nuclear Power Plant; CP L's refusal to sell NCEMC joint ownership in the Brunswick and Harris Nuclear Power Plants; CP L's continued opposition to Electric Power in the Carolinas, as well as other efforts by NCEMC and the EDCs to obtain their own G T services; delivery point disputes between the Plaintiff EDCs and CP L; and acquisitions by CP L of other electric distribution systems which increased its control over G T services in eastern North Carolina. Because these overt acts took place within four years of the time the Plaintiffs filed their complaint, claims relating to these acts are not barred by the statute of limitations.

CP L does not dispute this obvious point. Instead, it argues that the Plaintiffs have not claimed any damage from the aforementioned post-limitations date overt acts. In support of this position, CP L relies on affidavit and deposition testimony of Harold Wein, the architect of the Plaintiffs' damage theory. Wein admits that his theory does not allege particularized damage from acts of CP L on or after August 17, 1973. Seizing upon this admission, CP L contends that all the Plaintiffs' claims should be dismissed because the Plaintiffs were not damaged by acts of CP L occurring within the limitations period.

CP L overstates its position. First, Wein never stated that the post-limitations acts of CP L did not damage the Plaintiffs, only that he did not formulate a separate damage theory for those acts. Because the court will rule that the statute of limitations bars the Plaintiffs' claims and evidence relating to pre-August 17, 1973, acts of CP L, the extent of the Plaintiffs' damage is admittedly uncertain. However, the court cannot rule as a matter of law that NCEMC and the EDCs have suffered no damage from acts of CP L taking place on or after August 17, 1973. Second, NCEMC seeks a permanent injunction requiring CP L to deal with it in good faith as if there was an unconcentrated and competitive power exchange market and to provide wheeling services permitting it to integrate the electricity loads of the EDCs. This request for injunctive relief is not barred by the statute of limitations due to the overt acts of CP L which have taken place well after August 17, 1973. Therefore, the court cannot grant CP L's motion to dismiss all of the Plaintiffs' claims on statute of limitations grounds.

II. Sufficiency of the Evidence

For purposes of this motion, CP L characterizes the Plaintiffs' various claims as follows: CP L priced predatorily low for several decades in order to prevent NCEMC from entering the G T business and keep the EDCs as captive customers. CP L argues that summary judgment should be granted on all the Plaintiffs' claims because they are implausible and the evidence is insufficient to substantiate these implausible allegations. This motion is based upon the Supreme Court's decision in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), which provides guidelines for summary judgment analysis in the antitrust context. Although the genuine issue of material fact summary judgment standard was not changed, the Supreme Court distinguished evidence sufficient to raise a genuine issue of material fact in a predatory pricing antitrust case from evidence insufficient to do so. In Matsushita, the Court instructed that "[i]t follows from these settled principles that if the factual context renders respondents' claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." 475 U.S. at 587, 106 S.Ct. at 1356. Therefore, the appropriate analysis is two-fold. First, a court should determine whether a plaintiff's antitrust claim is plausible. If it is, summary judgment cannot be granted unless no evidence supports the claim. If it is not, the court should take the second step and examine whether more persuasive evidence exists to support the implausible claim. If no such persuasive evidence exists summary judgment can be granted in favor of the defendant.

If a plaintiff's predatory pricing claim is implausible, actual cost data indicating below-cost pricing is the only evidence which the Supreme Court cites as more persuasive evidence sufficient to survive a summary judgment motion. Id. at 584 n. 8, 585 n. 9, 594 n. 19, 106 S.Ct. at 1355 n. 8, 1355 n. 9, 1360 n. 19. The Court notes that certain evidence is insufficient to avoid the dismissal of implausible claims. Neither evidence of conduct by a defendant which harms competition but benefits competitors nor evidence of conspiracies to set maximum prices above market levels or set minimum prices at any level is sufficient to survive a summary judgment motion made against a competitor. Id. at 582-84 n. 8, 106 S.Ct. at 1353-54 n. 8. The Court also hinted that documentary evidence indicating a defendant's predatory intent is insufficient for an implausible antitrust claim to survive a motion for summary judgment. Id. at 585 n. 9, 106 S.Ct. at 1355 n. 9 ("As a practical matter, it may be that only direct evidence of below-cost pricing is sufficient to overcome the strong inference that rational businesses would not enter into conspiracies such as this one.").

A. The pricing claims

Examining the plausibility of the Plaintiffs' theory is the first step in evaluating their pricing claims. The theory behind the Plaintiffs' pricing claims is that CP L set prices to the EDCs at a predatory 7.5 mills per kwh rate for several decades, and encouraged other utilities to do the same, to make the EDCs dependent upon CP L for electricity and to prevent either NCEMC or the individual EDCs from obtaining their own G T system.

This theory is implausible because the loss to CP L from decades of below-cost pricing would be so large that any long-term recoupment would be unrealistic. As the Supreme Court noted in Matsushita, predatory pricing schemes are inherently speculative because the short-term loss is definite while the long-term gain is uncertain. 475 U.S. at 588-89, 106 S.Ct. at 1356-57. To recoup from decades of below-cost pricing, CP L would have to recover the present value of its losses plus a normal rate of return on the investment. Only then could CP L harvest additional gains. Recoupment is especially unlikely in the utility industry because CP L is regulated and cannot set its prices without the approval of a regulatory body. From 1945-64, CP L's rates to the EDCs were set by the North Carolina Utilities Commission, and from 1964 to the present its rates have been regulated by the Federal Power Commission and its successor, the Federal Energy Regulatory Commission. Under either regulatory scheme, utility rates must be just and reasonable. That the alleged predatory pricing conspiracy involved several utilities makes it even more implausible because losses must be allocated and each utility has an incentive to free-ride off the others. Matsushita, 475 U.S. at 590, 106 S.Ct. at 1357.

The Plaintiffs counter that CP L did not need to recoup because no money was lost on the 7.5 mills per kwh rate due to cross-subsidization. The Plaintiffs' theorize that CP L subsidized its losses to the EDCs with excess profits obtained from its municipal and retail customers.

The only case the Plaintiffs cite supporting the cross-subsidization theory is United States v. AT T, 524 F. Supp. 1336 (D.D.C. 1981). The district court in AT T, despite labeling cross-subsidization "a novel approach" which involves "the mapping of virgin territory," AT T, 524 F. Supp. at 1370, did not dismiss the government's antitrust claim at summary judgment due to the complexity of the issues.

Cross-subsidization is no more plausible on these facts than recoupment over time. First, the Supreme Court rejected cross-subsidization as a viable recoupment theory in Matsushita. The Supreme Court decided this theory was implausible because:

Whether or not petitioners have the means to sustain substantial losses in this country over a long period of time, they have no motive to sustain such losses absent some strong likelihood that the alleged conspiracy in this country will eventually pay off . . . [and] . . . [m]ore important, there is nothing to suggest any relationship between petitioners' profits in Japan and the amount petitioners could expect to gain from a conspiracy to monopolize the American market.

Second, even if cross-subsidization was not generally implausible, its likelihood in this case is questionable. Plaintiffs have argued both that the 7.5 mills rate was predatory and that the North Carolina Utilities Commission was duped by Defendant CP L into authorizing rates allowing predation and simultaneous recoupment because of the failure to perform a cost study that would show automatic cross-subsidization. Plaintiffs' Response Opposing Summary Judgment on Grounds of Insufficient Evidence of Monopolization, at 25-28 (Nov. 2, 1987); Transcript of Hearing on Motions for Summary Judgment, at 58-64 (May 2, 1990). The court finds these arguments unpersuasive based on State v. Municipal Corps. of Scotland Neck, 243 N.C. 193, 90 S.E.2d 519 (1955). In 1953, Virginia Electric Power Company applied to the North Carolina Utilities Commission for a general rate increase to some of its customers. Several municipalities opposed the rate increase citing the lower 7.5 mills per kwh rate charged to the rural EDCs. The municipalities argued that the higher rates to them subsidized the lower rates to the rural EDCs. The North Carolina Utilities Commission ruled in favor of Virginia Electric Power Company, holding that the 7.5 mills per kwh rate to the rural EDCs did not result in a higher rate for the municipalities. The North Carolina Supreme Court upheld this ruling, stating:

The conditions under which REA Cooperatives must operate, the necessity for constructing and maintaining miles and miles of lines through sparsely settled rural areas, and the consequent line losses, are sufficient to justify serving municipalities engaged in selling electric energy for profit under a different schedule from the one applicable to the REA Cooperatives which are created and operated on a nonprofit basis pursuant to the established public policy of the State and Federal Government.

While Scotland Neck was not an antitrust case and does not reject cross-subsidization as such, it indicates that the North Carolina Utilities Commission was aware of differing costs and situations warranting a deviation from the prevailing rate. The case shows a clear rejection of the argument that one class of purchasers' rates were dependent on and derived from that of another purchaser. Therefore, it is implausible that CP L could have engineered a regulatorily authorized cross-subsidy. Also, the North Carolina Supreme Court found, as a fact, that the 7.5 mills per kwh rate was requested by the Federal Government.

Even if recoupment over time and recoupment by cross-subsidization are implausible, the Plaintiffs contend CP L did not need to recoup because its only goal was to prevent NCEMC from obtaining a G T system. However, no court has held that it makes economic sense for a company to engage in predation aimed solely at preventing a potential rival from competing without the prospect of long-term recoupment. The Supreme Court in Matsushita stated that "[t]he success of any predatory scheme depends on maintaining monopoly power for long enough both to recoup the predator's losses and to harvest some additional gain." 475 U.S. at 589, 106 S.Ct. at 1357. Absent that assurance, "predatory pricing schemes are rarely tried." Id.

Under Matsushita, the next step in the summary judgment analysis is to determine if more persuasive evidence exists which excludes the possibility of lawful competition and substantiates the Plaintiffs' implausible pricing claims. 475 U.S. at 597-98 n. 21, 106 S.Ct. at 1361-62 n. 21 (citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 763-64, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775). In Matsushita, the Supreme Court considered the type of below-cost pricing evidence sufficient to overcome an implausible predation theory. It indicated that the only reliable expert studies of cost were based upon "actual cost data" covering the alleged predatory period and that expert studies based upon "assumptions" about defendant's costs were of "little probative value." 475 U.S. at 594 n. 19, 106 S.Ct. at 1360 n. 19. The court finds that no such evidence exists in this case. The Plaintiffs' evidence of predation comes exclusively from the work of their economic expert. Wein's analysis is exactly the sort of speculative cost evidence that the Supreme Court has indicated is of little probative value. The only evidence Wein presents from CP L's actual cost data relates to CP L's costs at its Lumberton Power Plant in 1949-50. This evidence is not sufficient to survive summary judgment because this period is too brief to make a conclusion about below-cost pricing over twenty-six (26) years; Lumberton was not CP L's only power plant; and CP L's costs in 1949-50 indicate nothing about its intentions in 1945 when it set the 7.5 mills per kwh rate.

Furthermore, the Plaintiffs' direct and circumstantial evidence relating to pricing is insufficient to withstand summary judgment. The Plaintiffs' direct evidence is sparse and consists of isolated statements by CP L executives. There is no smoking gun in any documents indicating that CP L's motive in setting the 7.5 mills per kwh rate was to prevent competition in the G T business. The Plaintiffs' circumstantial evidence is equally unpersuasive because none of it excludes the possibility of lawful motivations behind CP L's pricing. In fact, there is little evidence supporting the conclusion that the 7.5 mills per kwh rate was predatory. The evidence reflects that this rate was (1) offered to help the EDCs service rural areas at the request of Congress; (2) more cost effective for CP L than having to provide electricity to the rural areas itself; (3) maintained during a period when electricity costs were declining; and (4) accepted readily by the EDCs. Because no more persuasive evidence exists to substantiate the Plaintiffs' implausible pricing claims, summary judgment is appropriate.

B. The non-pricing claims

The Plaintiffs seek damages and an injunction from their non-pricing claims brought pursuant to Sections 1 and 2 of the Sherman Act. These claims revolve around over fifty (50) years of alleged exclusionary conduct by CP L that prevented NCEMC from building a G T system and the EDCs from obtaining electric independence from CP L. CP L's overt acts center around numerous refusals to deal over power exchange services with NCEMC. Although there is no general duty to cooperate with a potential competitor, willful refusals to deal made in order to maintain monopoly power without legitimate business reasons are unlawful. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-05, 105 S.Ct. 2847, 2856-59, 86 L.Ed.2d 467 (1985); Otter Tail Power Co. v. United States, 410 U.S. 366, 377-79, 93 S.Ct. 1022, 1029-30, 35 L.Ed.2d 359 (1973).

The Plaintiffs' non-pricing claims are more plausible than their other claims. It makes economic sense for a monopolist to refuse to deal with a potential competitor like NCEMC in order to maintain its monopoly power so long as the monopolist does not lose substantial amounts of money in the process. Through the alleged use of monopoly power, CP L could prevent NCEMC from getting access to the resources it needed to compete in the G T business. There is nothing implausible, as Plaintiffs' expert puts it, about a monopolist preferring the "quiet life." The factors that make the pricing claims implausible do not apply to the non-pricing claims. Predatory pricing schemes are very costly, while refusing to deal with a potential competitor costs nothing. Furthermore, utility rates are regulated but business decisions about whom to deal with are not.

Implicitly recognizing that the Plaintiffs' non-pricing claims make economic sense, CP L's plausibility arguments relate only to the Plaintiffs' pricing claims. CP L's position is that summary judgment should be granted on the non-pricing claims because the Plaintiffs were not damaged by these acts — not that these claims were implausible. The court rejects this position because it ignores the Plaintiffs' request for injunctive relief. Furthermore, the court has already expressed its unwillingness to hold as a matter of law that the Plaintiffs were not damaged by overt acts of CP L after the statute of limitations cut-off date. See, supra, pp. 334-35.

III. Standing

Section 4 of the Clayton Act, 15 U.S.C. § 15, limits standing to bring a private antitrust damage action to those "who shall be injured in [their] business or property by reason of anything forbidden in the antitrust laws." Because NCEMC is only a potential competitor in the G T business it must demonstrate intention and preparedness to enter that business. See, e.g., Indium Corp. v. Semi-Alloys, Inc., 781 F.2d 879, 882 (Fed. Cir. 1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986); Jayco Sys., Inc. v. Savin Business Machines Corp., 777 F.2d 306, 313 (5th Cir. 1985), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 30 (1986); Hecht v. Pro-Football, Inc., 570 F.2d 982, 987 (D.C. Cir. 1977), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978).

CP L argues that none of the Plaintiffs have standing to pursue their damage claims relating to the 7.5 mills per kwh rate because they were not prepared to build a G T system back in the 1950's and 1960's. Therefore, the Plaintiffs have no business or property interest protected by the antitrust laws. CP L cites the Plaintiffs' tentative plans and lack of financial backing as evidence of lack of preparedness. The Plaintiffs counter that they were prepared to enter the G T business several decades ago but were prevented from doing so by CP L's 7.5 mills per kwh rate. The Plaintiffs point out that two per cent (2%) financing for the construction of a G T system would have been available from the REA if not for CP L's predatory rate.

The court need not decide this issue. CP L's standing motion relates solely to the Plaintiffs' preparedness to construct a G T system during the 1950's and 1960's. The Plaintiffs contend they could not obtain the necessary financing due to CP L's predatory pricing. Because the court will grant summary judgment to CP L on all the pricing claims based upon the statute of limitations and sufficiency of the evidence, the Plaintiffs cannot obtain damages or injunctive relief based upon CP L's 7.5 mills per kwh rate. Therefore, there is no need to resolve the standing issue as it relates solely to the Plaintiffs' pricing claims.

Furthermore, the Plaintiffs clearly have standing to pursue their non-pricing claims based upon acts taking place on or after the statute of limitations cut-off date. The Plaintiffs were prepared to deal with CP L on a good-faith basis for economical power supply services and had the financial wherewithal to do so.

IV. Antitrust Immunity

CONCLUSION

For the aforementioned reasons, Defendant CP L's motion for summary judgment under the statute of limitations will be granted on Plaintiffs' predatory pricing claims and on all of Plaintiffs' non-pricing claims based on acts of the Defendant occurring before August 17, 1973. Defendant's motion for summary judgment on grounds of insufficient evidence also will be granted on Plaintiffs' predatory pricing claims. Plaintiffs' non-pricing claims based on Defendant's alleged anticompetitive acts occurring on or after August 17, 1973, remain. Defendant's motion for summary judgment on grounds of standing and on alternative grounds of state action immunity, implied immunity, and the filed rate doctrine will be dismissed without prejudice.