The instant appeal stems from an action brought by Gregory Ottensmeyer and his wife, Melissa, against the Chesapeake and Potomac Telephone Company of Maryland ("C & P") and American Telephone and Telegraph Company ("AT & T") in the United States District Court for the District of Maryland. The Ottensmeyers sought treble damages for alleged violations of the Sherman Antitrust Act, 15 U.S.C. Secs. 1 and 2.1 The gravamen of the appellants' complaint was that the appellees violated the Antitrust Act by instigating a search and seizure on the appellants' business premises. According to the Ottensmeyers, engaging the Maryland State Police to perform the search and seizure was an unlawful ploy to squash a competing business entity. The appellants also challenged, on a monopolization of trade theory an agreement entered into between C & P and the Ottensmeyers which prohibited Mr. Ottensmeyer from participating in the operation of appellants' answering service.

The district court awarded summary judgment in favor of C & P and AT & T.2 We affirm the grant of summary judgment for the reasons set forth by the court below which are summarized herein.

The material facts are not in dispute. In April 1976 the Ottensmeyers began operating the A.A. Answering Service under a lease arrangement with the owners Mr. and Mrs. Monk. The telephone answering service was located at 165 N. Williams Street, Bel Air, Maryland. The same address doubled as the Ottensmeyers' residence from April 1976 until March 26, 1979. In April 1978, the Ottensmeyers purchased the service from the Monks and became its sole owners.

The A.A. service was a traditional telephone service used primarily by medical and business professionals. Emergency and non-emergency messages were received and dispatched. By 1978, the Ottensmeyers employed 6-8 part-time employees to assist at the switchboard.

In March 1978, Mr. Ottensmeyer wrote to Mr. Burke, a C & P sales representative, seeking verification and approval of a call diverter system. Mr. Ottensmeyer informed Mr. Burke that the diverter equipment would allow potential Washington Metropolitan customers to be diverted to a Baltimore exchange that connects to the A.A. Answering Service "[t]hereby extending the territory of the Answering Service to the Washington area." Mr. Ottensmeyer did not ask Mr. Burke whether the diverter equipment could also be used to provide A.A. customers with an alternative long-distance service. On March 6, 1978, Mr. Burke responded to Mr. Ottensmeyer's inquiry by stating "your device may be arranged as you have explained."

On April 21, 1978, Mr. Ottensmeyer wrote to the General Legal Counsel Division of the FCC regarding, inter alia, regulations governing non-toll long distance calls made with call diverter equipment. In its May 15th letter, the FCC emphasized "that the answers we are giving pertain to the interstate communication services subject to the jurisdiction of this Commission. As you may know, we do not have jurisdiction over intrastate services which are regulated by the various state regulatory agencies." (Emphasis added). The FCC also stated that "[b]ridging of incoming calls by a Telephone Answering Service to another number is permissible with respect to interstate service ... but a company would have to be licensed to provide interstate communication services by reselling private-line service acquired from another common carrier."In August 1978, Ottensmeyer installed two C & P residential lines in a warehouse in Savage, Maryland. The two local lines were "patched" or interconnected, which allowed non-toll calls between parties in the Baltimore and Washington, D.C. areas. The calls would have normally been subject to long distance rates.

On September 28, 1978 a C & P installer-repairman reported installing a residential service in a warehouse district in Savage, Maryland. He also reported observing two other residential lines at that business location.

Mr. Tracy, of C & P's Rate and Tariff Department, notified Ottensmeyer by telephone that subscribing to residential service in a business location violated Maryland's tariff laws. From the phone conversation Tracy learned that Ottensmeyer was providing non-toll patched service to Baltimore-Washington customers. A C & P commercial manager sent four letters to Ottensmeyer confirming Tracy's phone conversation and informing Ottensmeyer that 1) the resale of telephone service3 and 2) the maintenance of residential exchanges in an industrial district4 violated Maryland's tariff laws and therefore his Savage, Maryland lines would be suspended on October 24, 1978. The service was in fact suspended on November 3, 1978. Ottensmeyer never responded to the four letters nor did he petition to the Maryland Public Service Commission (hereinafter P.S.C.) for relief.

At approximately the time that Ottensmeyer set up the patching service in Savage, Maryland, a similar patching service was established by him at 165 N. Williams Street, Bel Air, Maryland. The patched lines at Bel Air permitted customers to make non-toll calls anywhere from Cardiff, Maryland (or Delta, Pennsylvania--which had local calling access to Cardiff) to the Baltimore metropolitan area. Ottensmeyer advised prospective and actual customers using the Bel Air patching service that the service was lawful. Any customers having doubts about the legality of the long distance patching service were shown a copy of the FCC letter received by Ottensmeyer (as previously mentioned, the FCC letter passed no judgment on the legality of intrastate non-toll service). Ottensmeyer did not inform any customers of C & P's stated position regarding the patching of local telephone lines.

C & P soon learned that non-metered long distance calls were being made between Harford County, Maryland and Baltimore. As a result, Heil, a C & P Security Manager, conducted an investigation of Ottensmeyer's 165 N. Williams Street operation. Heil learned that ten residential phones, permitting service between Bel Air and Baltimore, were being used on AA's premises.5 As part of his investigation, he monitored the number of outgoing calls made on the ten residential lines. Heil discovered, for example, one of the residential phone lines subscribed to by Mr. Ottensmeyer's father carried 920 outgoing calls within a fifteen day period. The other numbers revealed similarly heavy "non-residential" use. Heil also made several test calls through the patching system, using the appellant's secret code, and confirmed the fact that intrastate calls could be made which avoided state tolling charges.

After Heil concluded his investigation, he informed a C & P attorney that he believed Ottensmeyer was defrauding C & P by using residential lines for business purposes.6 He also informed the attorney about the long distance patching system.7 After receiving Heil's report, the C & P attorney wrote to the Assistant State's Attorney for Harford County about the possible violations of Maryland's laws being committed by Ottensmeyer.8

Heil submitted, in response to a request from the Assistant State's Attorney for Harford County, his investigative findings to the Maryland State Police. The case was turned over to police officer Kelly. Kelly was specially trained in electronic surveillance techniques and telephone company operations. He conducted an independent investigation of the call diverting system stemming from 165 N. Williams Street. On the basis of his investigation, Kelly reasoned that "an illegal scheme is being employed by Gregory Ottensmeyer ... to defraud the C & P Telephone Co. of its duly earned long distance tariffs and that said fraud is being conducted ... with an illegal telephone device which 'cross connects' or 'patches' these dialing areas."

Kelly accordingly applied to Judge Albert P. Close of the Circuit Court, Harford County, Maryland, for a search warrant. In his affidavit, Kelly informed the judge of his experience in the electronic field and of his independent investigation and conclusions.9 Judge Close issued a warrant that "commanded" the Maryland State Police, "with the necessary and proper assistance, including C & P Telephone personnel," to enter the premises at 165 N. Williams Street and conduct the authorized search and seizure.

The search was executed on March 26, 1979. The police were accompanied by Heil and other C & P personnel. The search lasted approximately six hours. Records and patching/diverter equipment were seized.

Following the search, the C & P attorney authorized the sending of a letter to Ottensmeyer notifying him that his telephone services would be suspended due to contravention of Maryland's tariffs.10 On April 17, 1979 Ottensmeyer's attorney requested an informal conference with the P.S.C. to discuss the termination of A.A.'s telephone service. A meeting was held on April 26 between Ottensmeyer's attorney and the attorney for C & P.

Appellants' counsel inquired as to whether an agreement could be structured which would permit the continuation of A.A.'s telephone services. C & P and appellants' attorney agreed that A.A. could continue to offer traditional telephone answering service provided that Mr. Ottensmeyer was not involved in the operation ("Agreement").11 As a result, the A.A. Answering Service was leased to Mrs. O'Brien, Mr. Ottensmeyer's mother, and Mr. Ottensmeyer moved from the premises at 165 N. Williams Street.

While the Supreme Court has warned that "summary procedures should be used sparingly in complex antitrust litigation," Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962), it has also acknowledged the propriety of granting summary judgment in limited instances. "While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 1593, 20 L. Ed. 2d 569 (1968). Thus, when antitrust allegations are mere "window dressing" or are simply thrown in as a shotgun approach for relief, we have granted a defendant's motion for summary judgment. See, e.g., Universal Lite Distributors, Inc. v. Northwest Industries, Inc., 452 F. Supp. 1206, 1210-1211 (D.Md.1978), affirmed, 602 F.2d 1173, 1175 (1979).

In granting summary judgment in favor of the appellees on the appellants' Sec. 1 claim, the district court emphasized the glaring lack of evidence suggesting a conspiracy between C & P and AT & T. The existence of a conspiracy is critical to a Sec. 1 claim. See Murdaugh Volkswagen, Inc. v. First National Bank of South Carolina, 639 F.2d 1073, 1075 (4th Cir.1981) ("what is dispositive is the utter failure of plaintiff to show that the two defendants either conspired or acted jointly to injure the [plaintiffs]") (emphasis in original). In viewing the appellants' case as the trial court did on the appellees' motion for summary judgment12--i.e., by drawing all inferences in the light most favorable to the party opposing the motion for summary judgment--we must agree with the district court that the appellants failed to present a genuine issue as to the existence of a conspiracy or "combination" within the meaning of Sec. 1. The appellants simply made conclusory assertions of conspiratorial conduct. There was absolutely nothing in the record to suggest that C & P and AT & T acted in combination to have the appellants' premises searched or their answering service terminated.

In granting summary judgment in favor of the appellees on appellants' Sec. 2 monopolization claim, the district court relied heavily on a recent extension of the Noerr-Pennington doctrine. Essentially, in their Sec. 2 claim, the appellants were arguing that C & P's complaint to the Maryland State Police and the resulting search and seizure constituted an unreasonable anti-competitive act which simply served to further C & P's own monopolistic position in the long distance telephone market. The Supreme Court, however, has limited the reach of Sec. 1 and Sec. 2 by immunizing anti-competitive conduct undertaken to persuade or petition government entities, or to utilize judicial or quasi-judicial mechanisms." The grant of immunization has come to be called the Noerr-Pennington doctrine. The two Supreme Court cases which gave rise to the doctrine are Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961) and United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965).13

The policies behind the Noerr-Pennington doctrine include preserving an individual's first amendment right to petition government officials and encouraging the free flow of ideas to political bodies in order to ensure intelligent decisionmaking. The Supreme Court in Noerr noted that, if attempts to influence the passage and enforcement of laws were not protected, the Sherman Act would regulate "political activity" and not "business activity." Even if people or business entities petition their legislators with anticompetitive intent, their conduct is still protected under the doctrine. The Supreme Court realistically concluded that people who lobby before their representatives usually, if not always, are seeking to further their own interests at the expense of others. It is the legislators' duty then to act as the ultimate arbiters of what serves the public interest.

There are, not surprisingly, some constraints upon the Noerr-Pennington doctrine's grant of immunity. The Court in Noerr stressed that if the publicity campaign or lobbying effort were a "mere sham" intended to obfuscate "what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor" the party would be held in violation of the Sherman Act. 365 U.S. at 144, 81 S.Ct. at 533.

The Noerr-Pennington doctrine has recently been extended to include information given to police which leads to anti-competitive consequences. See Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1059-1060 (9th Cir.1982). Before Forro, the doctrine had been limited to communications within a legislative, administrative or judicial forum and to communications directed at executive officials or agencies.

The facts in Forro, to some degree, parallel the instant case. IBM developed a new disk storage device. It discovered that its security had been violated and that the new design was prematurely "out" on the market. IBM suspected Forro and other enterprises of trade secret thievery and approached law enforcement officials about the matter. A warrant was issued to search the Forro facility as well as several other locations. IBM officials accompanied and assisted the San Jose police during the search at the Forro plant. Drawings, price lists and other records were seized. The search lasted twelve hours. It was widely publicized in computer trade journals. No indictment was ever sought against Forro. The court in Forro held that "IBM's invocation of police assistance, which resulted in an investigation and a search of Forro's plant, may not serve as the basis of an antitrust claim because these actions are accorded immunity." Id. at 1058.

The court, in deeming IBM's actions immune from liability under the Sherman Act, acknowledged that communications to police do not constitute the type of "political activity" protected by the Noerr-Pennington doctrine. However, the court in Forro noted that "the public policies served by ensuring the free flow of information to the police" were equally as strong as the policies served by the Noerr-Pennington doctrine. Id. at 1060. Specifically, the Ninth Circuit found that the police would be handicapped in protecting the public if people feared that information offered to officials would give rise to an antitrust violation; that is, there would be a "chilling effect" on information given to police if the Sherman Act hovered ominously overhead. The court in Forro addressed the sham exception originated in Noerr and noted that:

If, in the case before us, IBM had provided the police with deliberately false information, solely for the purpose of harassing Forro or of achieving other ends unrelated to law enforcement, its conduct would unquestionably come within the sham exception.

Id. at 1060 (emphasis added).

Based on the first amendment concerns enunciated in Noerr and its progeny, we agree with the district court that Forro is a logical, proper extension of the Noerr-Pennington doctrine. The "sham" exception still applies and therefore provides a necessary safeguard against abusing the privilege of immunity. We further agree with the district court that the sham exception is inapplicable in the instant case--especially in light of police officer Kelly's expertise in telephone operations and independent assertion of wrongdoing. In other words, Kelly's independent investigation, which supported his affidavit for a search warrant, effectively nullified any allegations of a sham on the part of C & P. Thus, C & P's communications with the police and the subsequent search and seizure were not acts in violation of the Sherman Act. As a result, the appellants' antitrust claims must fail as a matter of law.14

AFFIRMED.