U.S. v. Western Elec. Co., LO-AD
| Decision Date | 28 May 1993 |
| Docket Number | LO-AD,Nos. 91-5263,s. 91-5263 |
| Citation | 993 F.2d 1572 |
| Parties | , 1993-1 Trade Cases P 70,259 UNITED STATES of America v. WESTERN ELECTRIC COMPANY, et al., National Association of Broadcasters, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, et al., Consumer Federation of America, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., CompuServe Incorporated, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., The Dun & Bradstreet Corporation, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., MCI Communications Corporation, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., National Cable Television Association, Inc., Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Newspaper Association of America, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Prodigy Services Company, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., ADAPSO, the Computer Software and Services Industry Association, Inc., Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., ALC Communications Corporation, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Information Industry Association, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company, GE Communications & Services, Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company, Cox Enterprises, Inc., Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Dialog Information Services, Inc., Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Association of North American Directory Publishers, Inc., Appellants. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al., Alarm Industry Communications Committee, Appellants. UNITED STATES of America v. WESTERN |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (C.A. 82-00192).
Chester T. Kamin, with whom Bruce J. Ennis, Jr., Michael H. Salsbury, Richard E. Wiley, Michael Yourshaw, William B. Baker, H. Barton Farr, III, and Richard G. Taranto, were on the joint brief, for appellants. Barbara L. Waite, Michael A. Jacobs, Ann J. LaFrance, Andrew D. Lipman, Richard M. Ridler, Jonathan W. Cuneo, Howard D. Polsky, Sue D. Blumenfeld, Robert P. Reznick, Werner K. Hartenberger, Laura H. Phillips, Alexander Humphrey, Robert J. Butler, Roy L. Morris, Joseph P. Markoski, W. Terry Maguire, Brenda L. Fox, Randolph J. May, Gene Kimmelman, and Henry L. Baumann, also entered appearances for appellants.
Peter G. Wolfe, entered an appearance for Public Service Com'n of the District of Columbia.
Frank W. Lloyd, III, entered an appearance for intervenor Leghorn Telepublishing Co.
John Glynn, Gary L. Lieber and Robert L. Duston, entered appearances for intervenor Maryland People's Counsel.
Nancy C. Garrison, Atty., Dept. of Justice, with whom Catherine G. O'Sullivan, Atty., Dept. of Justice, was on the brief, for appellee U.S.
Laurence H. Tribe, with whom Stephen M. Shapiro, Michael K. Kellogg, Walter H. Alford, Mark K. Hallenbeck, Richard W. Odgers, Margaret deb. Brown, Jeffrey S. Bork John Thorne, Raymond F. Burke, Gerald E. Murray, James D. Ellis, Liam S. Coonan, Ann E. Meuleman, and Martin E. Grambrow, were on the brief, for appellees Bell Operating Companies.
Phillip D. Mink, entered an appearance for intervenor Action for Children's Television and Citizens for a Sound Economy Foundation.
Herbert E. Marks and James L. Casserly, entered appearances for intervenor Independent Data Communication Mfrs. Ass'n, Inc.
David W. Carpenter, entered an appearance for intervenor American Tel. & Tel. Co.
John W. Pettit and Thomas K. Crowe, entered appearances for intervenor Tandy Corp.
Laurence H. Tribe and Michael K. Kellogg, entered appearances for intervenor Ameritech, Bell Atlantic, BellSouth Corp., NYNEX Corp., Pacific Telesis Group, Southwestern Bell and US WEST, Inc.
Kathleen F. O'Reilly, entered an appearance for intervenor Wisconsin Citizens' Utility Bd. and Toward Utility Rate Normalization.
Phillip D. Mink, was on the brief for intervenor and amicus curiae Regional Telephone Co.
Robert Abrams, John R. Perkins, Robert T. Stephen and Thomas Udall, were on the brief, for amicus curiae Twenty-Seven States.
Robert L. Pettit, Gen. Counsel, Renee Licht, Deputy Gen. Counsel, and John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., were on the brief, for amicus curiae F.C.C.
Martin T. McCue, Gen. Counsel and Rodney L. Joyce, U.S. Telephone Ass'n, were on the brief, for amicus curiae U.S. Telephone Ass'n.
James B. Gainer, Asst. Atty. Gen., entered an appearance for amicus curiae Public Utilities Com'n of Ohio, State of Ohio, Illinois Commerce Com'n, and State of Ill.
Steven M. Schur, Gen. Counsel and Michael S. Varda, Legal Counsel, Public Service Com'n of Wisconsin, entered appearances for amicus curiae Public Service Com'n of Wisconsin and State of Wis.
L. Andrew Tollin, entered an appearance for amicus curiae Media Institute.
Bruce J. Weston and David C. Bergmann, entered appearances for amicus curiae Nat. Ass'n of State Utility Consumer Advocates and Office of the Consumers' Counsel State of Ohio.
Before: BUCKLEY, WILLIAMS and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
When the government and AT & T settled the government's antitrust suit against AT & T, the Department of Justice pledged to report to the district court every three years as to whether there was a continuing need for the "line of business" restrictions that the settlement decree, the "Modified Final Judgment", imposed on the Bell operating companies (or BOCs). In 1987 the Department proposed that many of the restrictions be removed, including those on entry into the information services market. The district court rejected the information services proposal and several others. On review, this court largely affirmed, but reversed and remanded as to information services, finding that the district court had employed the wrong standard in reviewing the Department's proposal. See United States v. Western Electric Co., 900 F.2d 283, 289-93, 305-09 (D.C.Cir.1990) ("Triennial Review Opinion").
On remand, the district court modified the decree, in an opinion that is something of a pushmi-pullyu. See United States v. Western Electric Co., 767 F.Supp. 308 (D.D.C.1991) ("Remand Decision "). While on the one hand asserting that "none of [the Department of Justice's intermediate contentions] is supported by credible evidence," id. at 330, the court also concluded that under the standard established by this court in the Triennial Review Opinion it was bound to defer to those conclusions, id. The district court thus removed the ban on entry into information services. It stayed its own order of modification, but this court set the stay aside. United States v. Western Electric Co., 1991-2 Trade Cas. (CCH) p 69,610, 1991 WL 238308 (D.C.Cir.1991).
A variety of media and information services interests challenge the modification. Although the district court in certain places mischaracterized the standard under which it was to review the Department's proposal, the evidence was such that, under the standard laid down in the Triennial Review Opinion, rejection of the Department's proposal would have been error. We affirm.
The standard for review of modifications on mutual consent
Under the Antitrust Procedures and Penalties Act, 15 U.S.C. §§ 16(b)-(h), known as the Tunney Act, the district court reviewing a consent decree must determine whether the entry of such judgment is "in the public interest." Id. at § 16(e). Although application of the Tunney Act to decree modifications has been contested, see Note, Modifications of Antitrust Consent Decrees: Over a Double Barrel, 84 Mich.L.Rev. 134 (1985), all participants have assumed the point, as did we in the Triennial Review Opinion, 900 F.2d at 295. There we held that the "public interest test", as applied to a modification assented to by all parties to a decree, 1 "directs the district court to approve an uncontested modification so long as the resulting array of rights and obligations is within the zone of settlements consonant with the public interest today." 900 F.2d at 307 (emphasis in original). That formulation made clear that it was not up to the court to reject an agreed-on change simply because the proposal diverged from its view of the public interest. Rather, the court was bound to accept any modification that the Department (with the consent of the other parties, we repeat) reasonably regarded as advancing the public interest. In our final sentence on the standard, we underscored the deferential character of the inquiry:
The court should bear in mind the flexibility of the public interest inquiry: the court's function is not to determine whether the resulting array of rights and liabilities "is one that will best serve society," but only to confirm that the resulting "settlement is 'within the reaches of...
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