## Facts

- Official Airline Guides, Inc. (OAG) published a widely used semi-monthly compendium of airline schedules in the United States.
- OAG listed commuter airline schedules separately and did not include commuter airlines’ connecting-flight listings in the same integrated manner provided for certificated (major) carriers.
- The Federal Trade Commission (FTC) alleged this publication format disadvantaged commuter airlines and constituted an unfair method of competition under § 5 of the FTC Act.
- The FTC issued a cease-and-desist order requiring OAG to (1) publish commuter airlines’ connecting listings in the same manner as certificated carriers’ connections, and (2) refrain from arbitrarily discriminating among carriers in publishing connecting listings.
- OAG petitioned for judicial review, asserting (among other defenses) lack of FTC jurisdiction, lack of substantial evidence, and mootness based on voluntary changes; it also raised a First Amendment argument.

## Issues

1. Whether § 5 of the FTC Act authorizes the FTC to require a monopolist publisher that is not an airline to publish commuter airlines’ connecting-flight listings on the same terms as major carriers to prevent competitive disadvantage.
2. Whether the FTC had jurisdiction over OAG’s conduct and whether the Commission’s findings were supported by substantial evidence.
3. Whether OAG’s voluntary changes made a cease-and-desist order improper.

## Decision

- The court granted the petition for review and set aside the FTC’s cease-and-desist order.
- The court rejected OAG’s threshold defenses, holding the FTC had jurisdiction, the findings were supported by substantial evidence, and voluntary changes did not bar remedial relief.
- On the merits, the court held OAG’s publication practices did not violate § 5 on the Commission’s “duty to deal / scarce resource” theory.
- The court did not reach OAG’s First Amendment defense.

## Legal Principles

- § 5 of the FTC Act does not generally impose on a monopolist that is not a competitor in the affected downstream market an affirmative duty to structure its product or service to equalize competitive conditions among downstream competitors.
- “Duty to deal” or “scarce resource/essential facility” theories typically require circumstances such as competitive participation in the restrained market or conduct tied to an anticompetitive scheme to extend or entrench market power; those elements were not established for a neutral publisher.
- FTC jurisdiction may extend to conduct “in or affecting commerce,” and factual findings may be upheld under substantial-evidence review, yet the Commission still must connect the challenged conduct to a cognizable theory of competitive harm within the limits of § 5.

## Conclusion

The Second Circuit vacated the FTC’s order, holding that § 5 could not be used to force a non-carrier, monopolist publisher of flight schedules to publish commuter airlines’ connecting listings on equal terms absent a traditional antitrust-type scheme or competitive stake justifying a compelled access or nondiscrimination duty.


Official Airline Guides, Inc. v. FTC, 630 F.2d 920 (2d Cir. 1980)