Motion — American Telephone & Telegraph Co. v. United States

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AMERICAN TELEPHONE AND TELEGRAPH CoMPANY;

WESTERN Exectric Company, Ixd.; and

BELL TELEPHONE Laboratories, Inc., Petitioners,

V.

Untrep States or America, Respondent.

ev Brecon 6. Asams Puwriwe, Ino., B.C,

IN THE

Supreme Court of the United States

OctToBER TERM, 1976

A ease Mise.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY;

WESTERN Evectric Company, INc.; and

BELL TELEPHONE LABoraTORIES, INc., Petitioners,

v.

UNITED States or AMERICA, Respondent.

MOTION TO ACCELERATE CONSIDERATION

Now come petitioners and respectfully move the

Court to accelerate consideration of their motion for

leave to file a petition for writ of certiorari and of the

petition accompanying that motion which seeks issu-

ance under 28 U.S.C. § 1651(a) of a writ of certiorari

directly to the United States District Court for the

District of Columbia or, in the alternative, issuance

under 28 U.S.C. § 1254(1) of a writ of certiorari to

the United States Court of Appeals for the District of

Columbia before judgment, the object in both cases

being to obtain review in this Court of a Memorandum

Opinion and Order on Jurisdictional Issues issued by

the district court on November 24, 1976, and a subse-

quent order of that court issued on December 22, 1976,

as soon as is reasonably possible. Specifically, petition-

ers request the Court: (1) to grant the motion for

leave to file a petition for writ of certiorari under 28

U.S.C. §1651(a); (2) to accept the petition for cer-

tiorari as petitioners’ brief on the merits of the ques-

tion presented; (3) to set a date for the Government

to file its brief on the merits; and (4) to set this case

for argument as soon as is reasonably possible in this

Term of Court. In support of this motion, petitioners

submit herewith their Brief in Support of Motion to

Accelerate Consideration.

Respectfully submitted,

Harowp S Levy

JoHN S. LUCKSTONE

Leonard JOSE

Grone L. SAUNDERS, In.

195 Broadwa

New York, New York 10007

| (212) 393-8861

Of Counsel

F. Mark GARLINGHOUSE

Gronaꝝ V. Cook

WituiM L. Keerauver

Dewey, BALLANTINE, BusHBY,

PALMER AND Woop

Sur & Austin

January 6, 1977

IN THE

Supreme Court of the United States

Ocroper Term, 1976

No. teeeeeeeene eeeeeeeeeesee 7 Misc.

AMERICAN TELEPHONE AND TyLranarn COMPANY;

Wesrean Exvecraic Company, IN.; and

Bet. TON Lasorarories, ING., Petitioners,

v.

Unrrep Srarm or AMerica, Respondent.

BRIEF IN SUPPORT OF MOTION TO

ACCELERATE CONSIDERATION

STATEMENT

This case involves a civil antitrust complaint brought

by the Antitrust Division of the Department of Justice

acting on behalf of the United States against three of

the companies that comprise what is commonly known

as the Bell System, an integrated enterprise that pro-

vides most of the telecommunications common carrier

service throughout the continental United States. The

basic charges set forth in the Government’s com-

plaint are that the Bell System has monopolized, and

attempted and conspired to monopolize, alleged tele-

communications service and equipment markets.

Although the markets involved are not precisely

identified in the complaint, it is clear that the Govern-

ment’s charges are directed exclusively at areas in

which, and services and equipment with respect to the

provision of which, the Bell System operates solely as

a common carrier enterprise. Moreover, the specific

charges made in the complaint and identified by the

Government in the proceedings before the district

court as the grounds for its basie monopolization

charges all relate to the Bell System's common carrier

activities,

In light of the nature of the charges involved,

petitioners challenged the jurisdiction of the district

cour, over the Government’s complaint, pointing out

that the matters encompassed therein are subject to

pervasive regulation by both federal and state regu-

latory agencies, that the public interest standard of

this pervasive regulatory scheme is fundamentally dif-

ferent from and inconsistent with the unidimensional

standard of competition embodied in the antitrust

laws, that the regulatory jurisdiction and responsi-

bility thus established has been and is being vigorously

exercised with respect to the very matters alleged in

the complaint, and that under this Court’s decisions in

Pan American World Airways, Inc. v. United States,

371 U.S. 296 (1963) ; Hughes Tool Co. v. Trans World

Airlines, Inc, 409 U.S, 363 (1973), and United States

v. National Association of Securities Dealers, Inc., 422

U.S. 694 (1975), the antitrust jurisdiction of the fed-

eral courts does not extend to matters subject to per-

vasive regulation under a standard inconsistent with

the competition standard of the antitrust laws.

The district court rejected this challenge to its juris-

diction. On the authority of this Court’s decisions in

Otter Tail Power Co, v. United States, 410 U.S. 366

(1973), and United States vy Radio Corp. of America,

358 U.S, 334 (1959), the court held that even a per-

vasive scheme of regulation does not automatically

necessitate the conclusion that the antitrust laws are

to be displaced.“ (Petition, App. A, p. 7a). The court

conceded that the decision in the NASD case makes it

clear that “n regulatory scheme may be so pervasive

that it must displace the antitrust laws“ (d.). How-

ever, apparently on the theory that regulation of tele-

communications common carriers is somehow less per-

vasive than the regulation of securities dealers involved

in the NASD case, the court refused to apply that prin-

ciple to this case,

In petitioners’ judgment, the decision of the district

court is demonstrably erroneous, The decisions of this

Court in Otter Tail Power and Radio Corporation of

America were premised on the fact that pervasive

common carrier regulation did not exist with respect

to the industries and activities involved in those cases,

Indeed, the entire thrust and reasoning of the Court’s

opinions was that had the activities involved in those

cases been subject to such regulation, the antitrust

laws would not have been applicable under the prin-

ciple of Pan American, Hughes and NASD, Since

the Bell System’s telecommunications common carrier

activities are subject to pervasive common carrier

regulation, that principle is plainly applicable here,

for, contrary to the implication of the district court

in distinguishing NASD, telecommunications common

carrier activities are more pervasively regulated than

any of the activities involved in any of the cases that

have previously come before this Court, In fact, an

analysis of the major regulatory statutes demonstrates

that Title II of the Communications Act, together

with comparable state statutes preserved in and made

a part of federal policy thereby, establishes the most

pervasive regulatory scheme applicable to any indus-

try in the country. (These considerations are sum-

marized in the petition, at pp. 34-37.)

4

While it was considering the issue of its jurisdiction,

the district court had stayed all discovery in this case

on its own motion in recognition of the fact that such

threshold matters... should be resolved before the

expensive and protracted discovery inherent in the na-

ture of this case was undertaken by the parties“ (Pe-

tition, App. A, p. 2a). That stay has now been lifted,

however, and the parties are about to commence what

is virtually certain to be at least a ten-year period

of discovery and trial. The burdens of discovery and

trial in this case would be staggering; petitioners ini-

tially received document requests from the Govern-

ment which would require the production of some 1,2

billion pages of material at an estimated cost to peti-

tioners in excess of $300 million, Moreover, the pen-

dency of this case during the many years certain to be

required to prepare and try it would seriously impair

the ability of petitioners to carry out their responsi-

bilities under the regulatory scheme to which they are

subject. In addition, there are now pending against the

Bell System companies more than thirty other anti-

trust actions in seven different judicial circuits around

the country. Each of these cases involves one or more

of the same charges that have been made by the Gov-

ernment in this case and therefore involves the same

jurisdictional question that is presented here. (These

considerations are discussed more fully in the petition,

pp. 26-31.)

For all these reasons, it is imperative that a defini-

tive review and resolution of the district court’s asser-

tion of jurisdiction be obtained as soon as possible. Be-

cause of the provisions of Section 2 of the Expediting

Act (15 U.S.C. § 29), which are applicable to civil anti-

trust cases brought by the Government, an interlogu-

tory appeal cannot be taken from the district cours

decision, However, this Court has jurisdiction under

—

the All Writs Act (28 U.S.C. 6 1651 (a)), to review

that decision in aid of its ultimate appellate jurisdic-

tion. United States Alkali Export Association, Inc. v.

United States, 325 U.S. 196 (1945); Far Fast Confer-

ence v. United States, 342 U.S. 570 (1952). See also

V parte Peru, 318 U.S. 578 (1943).

There is a possibility, in view of certain 1974 amend-

ments to the Expediting Act, that the Court of Appeals

for the District of Columbia also has jurisdiction un-

der the All Writs Act to review the district court's

decision, See Kaufman v. Edelstein, 1976-1 Trade Cases

160,841 at 68,668 (2d Cir. 1976). However, given the

lengthy delay that has already been experienced in

this case while the district court considered the ques-

tion of its jurisdiction, coupled with the basic policy

of the Expediting Act itself that Government civil

antitrust cases should proceed as expeditiously as pos-

sible, the interests of sound judicial administration

would best be served by direct review in this Court.

The importance of this particular litigation, the

wholly legal character of the jurisdictional question

presented here, and the need for a definitive resolution

of that question all lead inexorably to the conclusion

that the question ultimately must be resolved by this

Court. That being so, petitioners submit that such a

definitive resolution of the question ought to be made

as soon as possible,

For that reason, petitioners have filed a petition for

writ of certiorari under the All Writs Act directly in

this Court. Petitioners have also filed a petition for

writ of certiorari in the Court of Appeals for the Dis-

trict of Columbia but, with respect to that petition,

petitioners have asked in the petition filed in this

Court that the Court grant certiorari before judgment

in the court of appeals. Under 28 U.S.C. § 1254(1),

this Court has jurisdiction to review cases filed in the

court of appeals under 28 U.S.C. § 1651(a), Schlagen-

hauf v. Holder, 379 U.S. 104 (1964), and the provi-

sions of the section expressly permit such review be-

fore judgment. See United States v. Nixon, 418 U.S,

683 (1974); New Haven Inclusion Cases, 399 U.S, 292

(1970). By this approach, petitioners have presented

this Court with alternative procedures under either

of which it unquestionably has the power directly to

review the district court’s decision,

This motion to accelerate consideration is designed

to facilitate even greater expedition in the handling

of the question sought to be presented here, By this

motion, petitioners ask the Court to grant the motion

for leave to file the petition for writ of certiorari, to

accept the petition as petitioners’ brief on the merits,

to establish a date on which the Government should

file its brief and to set this case for argument as soon

as is reasonably possible. For the reasons to be set out

below, this Court should grant petitioners’ motion to

accelerate consideration.

ARGUMENT

The procedure urged by petitioners in this motion

has a single purpose—that is, to permit consideration

and resolution of the question presented by the petition

for writ of certiorari in this case during this Term of

Court. Plainly, such a procedure is in the best inter-

ests of the parties, since prompt resolution of the ques-

tion presented would avoid the enormous burdens of a

possibly unnecessary discovery and trial in the case,

It is in the best interests of the non-parties who in-

evitably will be drawn into this case by subpoenas and

upon whom substantial burdens would therefore also

necessarily be imposed. It is in the best interests of

the public, which, because the Bell System is a regu-

lated public utility enterprise, will ultimately bear the

7

expenses of both sides of this litigation. It is in the

best interests of the courts, the time and resources of

which are being spent on this and related cases pend-

ing against the Bell System, even though no one can

know whether those cases belong in the courts at all,

unless and until there is a definitive resolution of the

question of the applicability of the antitrust laws to

the pervasively regulated common carrier activities

of the Bell System. And finally, it is in the best in-

terests of the regulatory agencies charged with the

responsibility of regulating telecommunications com-

mon carriers, both state and federal. Those agencies

need and are entitled to know—as promptly as pos-

sible in light of the fact that proceedings are currently

pending before them involving the very matters sought

to be litigated in this case—the relationship between

their regulatory responsibilities and the jurisdiction

of the antitrust courts and, even more importantly,

the relationship between the public interest standard

they administer and the competition standard embodied

in the antitrust laws.

Petitioners submit that the procedure suggested by

this motion is entirely justified and appropriate in this

extraordinary case. In light of the multiplicity of sim-

ila suits now pending, the burden upon judicial re-

sources from the continued discovery and trial proce-

dures in those suits, the staggering burden of discovery

in this case alone which is scheduled to commence

March 1, 1977, and the uncertainty that exists and will

continue to exist with respect to petitioners’ regulatory

obligations in light of the district court’s opinion, the

need for a prompt and definitive resolution of the

question presented by this petition is clear.

This Court has on numerous occasions accelerated

consideration of matters pending before it where it be-

lieved the circumstances involved to require or justify

8

such action. Indeed, in the Penn-Central Merger and

N&W Inclusion Cases, 389 U.S. 946, 947 (1967) the

Court adopted essentially the identical procedure sug-

gested here.

The need for accelerated consideration is far more

imperative in the present case, from the standpoint of

the parties, the public, the courts, and the regulatory

agencies involved. The procedure suggested by peti-

tioners will satisfy that need, and it will do so in a

manner that is manifestly appropriate in light of the

background of this case. The parties have briefed

the jurisdictional question presented in the petition

thoroughly for the district court on four separate oc-

casions within the past two years. The procedure sug-

gested here could not therefore possibly be considered

either a burden to the Government or a hindrance of

its ability fully to present its position to the Court.

CONCLUSION

The Motion to Accelerate Consideration should be

granted.

Respectfully submitted,

HXROI D S. Levy

JoHN S. LUCKSTONE

LEONARD JOSEPH

Grorce L. SAUNDERS, JR.

195 Broadway

New York, New York 10007

Of Counsel (212) 393-8861

F. Mark GARLINGHOUSE

Gerorce V. Cook

Wriui1aAM L. Keeravuver

Dewey, BALLANTINE, BUSHBY,

PALMER AND Woop

SipLey & AUSTIN

January 6, 1977