Ameritech and SBC Communications, two of the “Baby Bells” carved out of AT&T as part of the antitrust divestiture finally approved in 1983, have agreed to merge. The Antitrust Division of the Department of Justice concluded that the merger is generally compatible with competition, though as a condition of receiving the Department’s approbation the merging firms promised in a consent decree to spin off SBC’s cellular phone business in St. Louis and other places where it now competes with Ameritech. Dissatisfied with the prospect that the merger would proceed with only this accommodation, five plaintiffs (all of them Ameritech customers) filed this suit under 15 U.S.C. § 26, seeking an injunction on the ground that the merger would violate the antitrust laws. The district court dismissed the suit *843 as premature, concluding that the dispute will not be ripe for adjudication until all required state and federal approvals have been obtained — for the agencies might insist on changes that would substantially alter the merger’s competitive effects. 1999 U.S. Dist. Lexis 949 (N.D.I1L).
The Baby Bells (more formally, the regional Bell operating companies) were created as monopolies of local telephone service, separated from AT&T’s national network to facilitate competition in interstate service. See William J. Baumol & J. Gregory Sidak, Toward Competition in Local Telephony (1994). Each Baby Bell must afford nondiscriminatory access to all interexchange carriers, and the consent decree required each to refrain from competing in long-distance markets (for fear that it would use its monopoly of local lines to restrict competition in long-distance communications). A fundamental assumption behind the 1983 reorganization is that local phone service is a natural monopoly because average total costs of both land lines and call switching decline through the entire range of demand. Thus the seven Baby Bells (with one local exchange carrier subsidiary for each state) were left as monopolies, with prices constrained by state public utilities commissions, while the competitive national and international segments of the business were regulated by the Federal Communications Commission. The organization of local exchange carriers did not matter much.
Technological changes have drawn the premise of the 1983 reorganization into question. Communications now do not necessarily depend on costly land lines; the market for cellular phone service is (or can be) competitive. The local switching service also has changed; formerly done by expensive electromechanical solenoids and relays, switching now is handled by computer. Many large customers have found it economical to install private branch exchanges in order to bypass the Baby Bells, something that would not be feasible if local switching still were a natural monopoly. The regional phone companies have built a great deal of new infrastructure, much of it optical fiber that can carry much more traffic than does copper; cable TV firms and Internet service providers likewise have installed high-capacity circuits, producing at least potential competition between cable and phone companies to supply the same services. At least three more methods, each amenable to multiple suppliers, are coming into use. David D. Clark,
et al., High-Speed Data Races Home,
281 Scientific American 94-115 (Oct.1999). The Internet has blurred the distinction between local and long-distance communications, see
Illinois Bell Telephone Co. v. WorldCom Technologies, Inc.,
The problem, as the district court saw things, is that the precise shape of the merger, and the conditions of entry in its wake, cannot yet be known. Ameritech is *844 the local-service provider in Illinois, Indiana, Michigan, Ohio, and Wisconsin; SBC operates in Arkansas, California, Connecticut, Kansas, Missouri, Nevada, Oklahoma, and Texas. Illinois and Ohio asserted regulatory jurisdiction over the merger; the firms also need the approval of the Federal Communications Commission. By the time the district judge dismissed the suit, none of the agencies had acted, and the judge observed that they could either block the merger or impose conditions (which the firms might or might not accept) that would alter the way it affected competition. Between the district judge’s decision and oral argument of this appeal, Ohio gave permission, accompanied by a lengthy list of conditions. Illinois approved the merger, subject to its. own conditions, two days after oral argument. The FCC has yet to be heard from.
Plaintiffs’ appeal has been met with a jurisdictional objection. The district court dismissed the suit for want of jurisdiction, expressly without prejudice to refiling after the final shape of the merger is known. Ameritech and SBC contend that dismissals without prejudice are not final, and therefore not appealable. That’s true when, for example, a judge grants summary judgment on one claim in a complaint, and the litigant dismisses another without prejudice, planning to reinstate the dismissed claim after receiving an appellate decision on the first. Such a “dismissal” is smoke and mirrors; the reality is that the case is ongoing in the district court, and 28 U.S.C. § 1291 does not authorize appeal from resolution of a single claim in a multi-claim or multi-party case, except under the conditions in Fed. R.Civ.P. 54(b). See
JTC Petroleum Co. v. Piasa Motor Fuels, Inc.,
Relying principally on
United States v. Radio Corporation of America,
Courts often wait for agencies, even when the agencies’ views are not legally conclusive — not only because the agencies may have something helpful to say, but also because what the agencies
do
may shape the litigation. Plaintiffs express
*845
concern that the merger will reduce potential competition between SBC and Ameri-tech. It is easy to see that after the merger SBC and Ameritech won’t compete with each other, but much more difficult to assess how consumers will fare as a result. That depends on how readily other competitors may enter the market, which can be affected if not dominated by regulatory barriers. See
United States v. Citizens & Southern National Bank,
When delay is harmless to the plaintiff, the best response to an unripe suit is dismissal.
Far East Conference v. United States,
AFFIRMED.
