Opposition Brief — Bell Atlantic Corp. v. United States

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BELL ATLANTIC CORPGRATION

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JOHN G. ROBERTS, JR.

Acting Solicitor General

JAMES F, RILL

Assistant Attorney General

ALISON L. SMITH

Deputy Assistant Attorney General

CATHERINE G. O’SULLIVAN

ANDREA LIMMER

Altorneys

Depariment of Justice

Washington, D.C. 20530

(202) 514-2217

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QUESTION PRESENTED

Whether the lower courts correctly interpreted the

AT&T consent decree to preclude petitioner, a Bell

Operating Company, from providing a “gateway” service

linking a customer in one telephone exchange area to a

computer in another exchange area without a waiver of the

provision of the decree prohibiting the Bell Operating

Companies from providing interexchange telecommunica-

tions services.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..... 10

California v. United States, 464 U.S. 1013 (1983) .. 5

McCrea v. Harris County Houston Ship Channel

Navigation District, 423 F.2d 605 (Sth Cir.), cert.

GCI, Ge Ua. Fe CEI viv cc ccc cece 9

Red Ball Motor Freight v. Shannon, 377 U.S. 311

EES TG cea ee ekk hds Gant ack web ane es 9

Stimson Lumber Co. v. Kuykendall, 275 U.S. 207

Sis Seek Os REN BEC AG 6-506 Mx-4 0 9

United States v. AT&T, 552 F. Supp. 131 (D.D.C.

1982), aff'd mem. sub nom. Maryland v. United

States, 460 U.S. 1001 (1983) ................. 2

United States v. Armour & Co., 402 U.S. 673

ee ea AR ys cb kw eb eee 7

United States v. Atlantic Refining Co., 360 U.S.

i ee ee. bee wen aces 7

United States v. California, 297 U.S. 175 (1936) ... 9

United States v. ITT Continental Baking Co., 420

ee ee ea es os 5 7

United States v. Western Electric Co., 673 F. Supp.

$525 (D.D.C. 1987), modified, 714 F. Supp. 1

(D.D.C. 1988), rev’d in part, 900 F.2d 283 (D.C.

Cir. 1990), cert. denied, No. 90-9 (Oct. 9, 1990) . 2

United States v. Western Electric Co., 690 F. Supp.

I ee ha 80s bas bn astndsccu bes 3

IV

Cases — Continued: Page

United States v. Western Electric Co., 569 F. Supp.

990 (D.D.C. 1983) ... 1... cece eee e eee nenes oa

United States v. Western Electric Co., Civ. No.

82-0192 (D.D.C. Feb. 6, 1984) .............-. 6, 11

Statute:

Interstate Commerce Act § 203(c), 49 U.S.C.

SUBS) CIDTE) onc. ccc cc cccccccccccccenceces 10

Miscellaneous:

47 Fed. Reg. (1982):

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is FED vee kes ces docenceccvscedcctssenses 1}

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-830

BELL ATLANTIC CORPORATION

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a)

is reported at 907 F.2d 160. The opinion of the district

court (Pet. App. 1la-21a) is reported at 1989-1 Trade Cas.

(CCH) ¢ 68,400.

JURISDICTION

The judgment of the court of appeals was entered on

June 12, 1990. A timely petition for rehearing was denied

on August 28, 1990. Pet. App. 23a-24a. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The 1982 consent decree that terminated the United

States’ antitrust suit against AT&T required AT&T to di-

vest its 22 Bell Operating Companies (BOCs). Pet. App.

(1)

2

25a-43a; United States v. AT&T, 552 F. Supp. 131 (D.D.C.

1982), aff'd mem. sub. nom. Maryland v. United States,

460 U.S. 1001 (1983). The object of the divestiture was to

eliminate AT&T’s incentive and ability to use its control of

the local exchange monopolies to impede competition in

the interexchange (long distance) telecommunications

market and the telecommunications equipment market.

The decree also placed restrictions on the separated BOCs,

which now operate the local exchange monopolies.

Among other restrictions, the decree provided that no

BOC shall “provide interexchange telecommunications

services or information services.” Section II(D)(1), Pet.

App. 28a.

In orders issued in 1987 and 1988, the district court

modified some of the decree’s line of business restrictions.

In particular, the court modified the restriction on the pro-

vision of information services to permit the BOCs to pro-

vide “gateways” to an information service provider. See

Section VIII(K)(1) (Pet. App. 38a); United States v. West-

ern Electric Co., 673 F. Supp. 525, 591-592 & nn. 297, 300

(1987), modified, 714 F. Supp. 1, 5-7 (D.D.C. 1988), rev’d

in part on other grounds, 900 F.2d 283 (D.C. Cir. 1990),

cert. denied, No. 90-9 (Oct. 9, 1990). “Gateway services”

include “a variety of functions designed to foster intercon-

nection between consumers and information providers.”

Pet. App. 4a. The gateway service at issue, for example,

would allow customers with computers to contact a central

processor that would list information services that are

available over the telecommunications network and would

interact with customers to provide information about the

services. Although the BOs had also requested removal

of the prohibition on their provision of interexchange ser-

vices, the court denied that motion (673 F. Supp. at 552,

562, 567, 602), and the court of appeals affirmed that

refusal (900 F.2d at 300-301).

MCI moved the district court to “clarify” its order modi-

fying the information services restriction to make clear

that it did not undermine the decree’s restriction on BOCs’

providing interexchange services. Petitioner Bell Atlantic,

a Bell Operating Company, opposed the motion for clari-

fication, stating that “[t]he Court has been quite clear that

it has not modified the interexchange prohibition, and no

further clarification is required.” C.A. App. 266. In deny-

ing the motion for clarification, the district court stated

that it “did not modify the interexchange prohibition of

the decree when it allowed [BOC] participation in the

transmission of information services,” and noted that

“there does not appear to be any confusion on this point.”

United States v. Western Electric Co., 690 F. Supp. 22, 28

(D.D.C. 1988).

Petitioner nevertheless subsequently moved for a declar-

atory ruling that a gateway system it planned to implement

on a trial basis in Pennsylvania would not violate the de-

cree.' Petitioner proposed to connect gateway equipment

in each of five Pennsylvania local exchange areas (known

as LATAs?) to one central gateway processor located in

Philadelphia. A customer in any of the five LATAs would

dial a local telephone number to reach a “protocol agile

packet assembler-disassembler” (PAP) located in his

' Petitioner did not request, in the alternative, a waiver of the

decree prohibition. Section VIII(C) of the decree specifically provides

for waivers of the decree’s line of business prohibitions upon a show-

ing that there is no substantial possibility that a BOC could use its

monopoly power to impede competition in the market it seeks to

enter. Pet. App. 36a.

? Because the term “exchange area” had long been used by state

regulators to mean something different from what the term means in

the AT&T consent decree, the parties agreed after the decree was

entered to use “LATA” (local access and transport area) as a synonym

for “exchange area.” United States v. Western Electric Co., 569 F.

Supp. 990, 993-995 & n.9 (D.D.C. 1983).

4

LATA. The PAP would connect the customer to the cen-

tral processor in Philadelphia over a private circuit owned

or leased by petitioner. The central processor would then

send the customer’s computer an introductory “welcom-

ing” screen and a list of information service providers

(ISPs). The customer would be able to search the central

processor’s files to obtain additional information, in-

cluding listings of providers of particular services, descrip-

tions of those services, and information about the cost of

the services. Pet. App. 5a, 12a-13a & n.8. If the customer

elected to use the services of an ISP, the central processor

would provide the PAP with the necessary information

and the PAP would connect the customer to the ISP. In

the case of an ISP not located in the customer’s LATA, the

call would be routed to an interexchange carrier selected

by the ISP. C.A. App. 272, 290.

A customer subscribing to petitioner’s gateway informa-

tion service would receive a bill for the total charge at-

tributable to the gateway service. There would be no sepa-

rate charge listed on the bill for the connection between

the customer and the central processor. The single charge

for the gateway service would vary according to the dura-

tion of that connection, however. Pet. App. Sa, 18a.

2. The district court denied petitioner’s motion, hold-

ing that the proposal would violate the interexchange pro-

hibition of the decree in the absence of a waiver. Pet. App.

lla-2la. The court noted that “[iJn every significant re-

spect, it would be the central, multi-LATA processor, not

the local PAP, that would be the information services

gateway” and “that the information and the services at the

heart of the gateway service would be provided by that

processor [which] may be located in an entirely different

LATA than the customer * * * and would perform its

> Petitioner does not claim the authority to connect a customer di-

rectly to an ISP in another LATA.

5

functions on an interLATA or interexchange basis.” /d. at

14a-15a. The court found the conclusion “inescapable that

the gateway architecture [petitioner] is proposing would

operate On an interexchange basis, and that it would

therefore constitute an interexchange service prohibited by

section II(D)(1) of the decree.” Jd. at 15a.

The district court rejected petitioner’s contention that

the gateway service at issue was analogous to “directory

assistance” for local telephone service, which the BOCs are

permitted to provide across exchange boundaries through

an “official services” network. Pet. App. 15a-19a; see

United States v. Western Electric Co., 569 F. Supp. 1057

(D.D.C. 1983), aff'd sub nom. California v. United States,

464 U.S. 1013 (1983) (Official Services) (partially repro-

duced at Pet. App. 44a-52a). The court explained that its

1983 decision sanctioning centralized official services was

part of the process of reorganizing the AT&T system to

separate the local telephone exchanges from the long dis-

tance network. It held that the preexisting official services

network was “an inherent part of the provision of ex-

change communications” by a BOC and that it need not be

redesigned after divestiture. /d. at 16a-17a. Bell Atlantic’s

gateway proposal, on the other hand, involved the

establishment of a new competitive service on an interex-

change basis. /d. at 18a.

Moreover, the court explained, although the gateway

service would permit a customer to obtain access to an in-

formation service provider, it was not analogous in nature

to simple directory assistance. Gateway subscribers would

interact extensively with the central processor and would

be charged according to the time they were connected to it.

Pet. App. 18a-19a. Thus, the court concluded, petitioner’s

new service was more closely analogous to interLATA

time and weather services and interLATA directory as-

sistance to independent telephone companies, which

the BOCs are prohibited from providing under Section

6

II(D)(1) of the decree in the absence of a waiver. /d. at 19a;

see United States v. Western Electric Co., Civ. No. 82-0192

(D.D.C. Feb. 6, 1984), slip op. 6 n.9 (C.A. App. 39).

3. The court of appeals affirmed. Pet. App. la-10a.

Petitioner argued on appeal that the interexchange portion

of the proposed gateway service would not be offered “for

hire”—and would not, therefore, constitute an “interex-

change telecommunications service” within the meaning of

the decree*—because the interexchange portion of the

service would not be separately identified or separately

charged to the customer. The court of appeals refused to

accept that “strained interpretation” of the phrase “for

hire,” noting that this view would allow the BOCs to pro-

vide any interexchange services so long as they were pack-

aged with some permitted service. Jd. at 7a.

The court also rejected petitioner’s claim that the district

court’s 1983 Official Services decision permitting the

BOCs to provide interLATA directory assistance com-

pelled a finding that interLATA transmission of gateway

communications are not services “for hire.” Pet. App.

8a-10a. The court of appeals first stated that it was not

bound by the earlier decision of the district court. /d. at

9a. It then noted that “[iJn 1983 the district court was

faced with a one-time daunting task, the allocating of ex-

isting facilities to either AT&T or the BOCs—and the

court and the parties may well have preferred a measure of

pragmatism to logic.” Jd. at 10a. The court of appeals did

not reach the question whether the district court had in

fact, as petitioner contended, intended in its 1983 Official

Services decision to hold that directory assistance is not

“for hire.” Jd. at 9a-10a & n.5.

4 The decree prohibits the BOCs from providing “interexchange

telecommunications services,” and defines a “telecommunications ser-

vice” as “the offering for hire of telecommunications facilities, or of

telecommunications by means of such facilities.” Section IV(P); Pet.

App. 32a.

7

Finally, the court of appeals acknowledged petitioner’s

argument that it would be prohibitively expensive to place

a central processor in each LATA. That argument, it ob-

served, may be a “powerful argument for a waiver from

the terms of the decree, * * * a route appellants chose to

bypass.” Pet. App. 10a.

ARGUMENT

Petitioner seeks to have this Court interpret the terms of

a particular consent decree. The lower courts’ construction

of those terms is consistent with the language of the decree

and creates no conflict with the decisions of this Court or

any other court of appeals. Accordingly, further review is

not warranted.

1. A consent decree is to be construed as a contract.

United States v. ITT Continental Baking Co., 420 U.S.

223, 236-237 (1975). Thus, the initial guide to decree con-

struction is the language of the decree itself, as used “in its

natural sense” and in relation to its normal meaning.

United States v. Armour & Co., 402 U.S. 673, 678 (1971);

ITT Continental Baking, 420 U.S. at 236; United States v.

Atlantic Refining Co., 360 U.S. 19, 22-23 (1959).5 Con-

trary to petitioner’s claim (Pet. 12-14, 18-20), the courts

below applied those principles of construction and proper-

ly concluded that petitioner’s proposed gateway service is

prohibited by the terms of the decree.

The decree prohibits the BOCs from providing “interex-

change telecommunications services.” Section II(D)(1);

Pet. App. 28a. “Interexchange telecommunications” is de-

fined as “telecommunications between a point or points

> Aids to construction of the sort properly taken into account in

construing a contract, including the circumstances surrounding the

formation of the decree and any technical meaning that the words

used may have had to the parties, are also appropriately considered.

ITT Continental Baking, 420 U.S. at 238; Atlantic Refining, 360 U.S.

at 22.

8

located in one exchange telecommunications area and a

point or points located in one or more other exhange

areas.” Section IV(K); Pet. App. 32a. A “telecommunica-

tions service” is defined as “the offering for hire of

telecommunications facilities, or of telecommunications

by means of such facilities.” Section IV(P); Pet. App. 32a.

Petitioner concedes (Pet. 14) that its proposed service in-

volves “interexchange telecommunications” since it pro-

poses to connect callers in one LATA with a central proc-

essor in a different LATA, relying exclusively on facilities

that it owns or leases. Petitioner also concedes (ibid.) that

its gateway service is “for hire.” It contends, however, that

the interexchange telecommunications involved in the

gateway service are not “for hire” and, therefore, that no

interexchange telecommunications service is involved. The

court of appeals properly rejected this “strained inter-

pretation” of the decree. Pet. App. 7a.

The decree does not define which telecommunications

services are offered “for hire.” But a common-sense inter-

pretation would include any telecommunications service

that constitutes a major and essential component of a tele-

communications service that is concededly “for hire,” par-

ticularly where the charge for the total service varies with

the duration of the component telecommunications ser-

vice. The court of appeals rightly concluded that bundling

the cost of the interLATA connection with the other com-

ponent costs of gateway service does not render the con-

nection to the centrai processor any less a service “for

hire.” Pet. App. 8a.°

Petitioner urged the courts to look beyond the “four

corners” of the AT&T consent decree to the concept of

common carrier status under various statutes in interpret-

* Petitioner proposed to lease, rather than construct and own, the

interLATA facilities in this case. The court of appeals correctly con-

cluded that the ownership of the facilities is not determinative. Pet.

App. 8a.

9

ing the term “for hire.” Unlike those statutes, however, the

decree does not use the term “for hire” as a definition of,

or in conjunction with, the term “common carrier.”’ In

any event, the cases on which petitioner relies do not ad-

vance its cause. Rather, they establish that the carriage of

a customer’s property or communication constitutes ser-

vice “for hire,” regardless of the manner in which payment

is received.§

2. Petitioner also claims that the lower courts’ ruling

in this case is inconsistent with the district court’s 1983 Of-

ficial Services decision, which allowed each BOC to offer

local telephone directory assistance on a centralized basis,

across LATA boundaries. Pet. 14, 16-18. As the court of

appeals pointed out, however, even if petitioner were cor-

rect in its assertion that its service is indistinguishable from

”? Petitioner’s argument that some businesses make use of interex-

change telecommunications and recover the costs in charges for other

products without being deemed to provide interexchange telecommu-

nications for hire (Pet. 15-16) is without force. The decree in this case

restricts the conduct of AT&T and the BOCs. Its restrictions do not

apply to, and were not drafted to take account of, the activities of

other firms.

8 E.g., United States v. California, 297 U.S. 175, 182-183 (1936)

(“[a]s the service involves transportation of the cars and their con-

tents, the method of fixing the charge is unimportant”); Stimson

Lumber Co. v. Kuykendall, 275 U.S. 207, 210-211 (1927) (“one who

undertakes for hire to transport from place to place the property of

others who may choose to employ him is a common carrier”); McCrea

v. Harris County Houston Ship Channel Navigation District, 423 F.2d

605, 608 (Sth Cir.), cert. denied, 400 U.S. 927 (1970) (“common car-

rier” status depends on whether an entity is performing a part of the

total rail service contracted for by a member of the public and is

receiving remuneration for it in some manner).

This Court’s decision in Red Ball Motor Freight v. Shannon, 377

U.S. 311 (1964), on which petitioner relies (Pet. 15-16), is inapposite.

The issue in Red Ball was whether respondent’s back-hauling of sugar

constituted legitimate “private carriage” that furthered “a noncarrier

business” or was “for-hire carriage” requiring certification from the

10

directory assistance, the appellate courts have not previ-

ously been presented with the issue decided by the district

court in 1983 and are not bound by the district court’s rul-

ing. Pet. App. 9a, citing Anderson v. Celebrezze, 460 U.S.

780 (1983).°

In any event, as the district court concluded, the 1983

decision did not establish a sweeping rule that no directory-

type service offered across LATA boundaries is a service

for hire. The issue in Official Services was the proper divi-

sion of the Bell System’s assets between the soon-to-be-

divested BOCs, which were to operate the local telephone

exchanges, and AT&T, which was to retain the long dis-

tance network. Because the Bell System’s network had not

been designed with this divestiture in mind, the assets did

not fall neatly into the two categories. In particular, net-

works carrying “official services” (services that “represent

communications between personnel or equipment of an

ICC. Id. at 314 (emphasis added). The Court found in the legislative

history of Section 203(c) of the Interstate Commerce Act, 49 U.S.C.

303(c) (1976), a congressional intent to ground this determination on

the “primary business” of the carrier. 377 U.S. at 314-317. The Court

ultimately concluded that Shannon’s sugar hauling was not “for-hire

transportation” because it was “within the scope, and in furtherance,

of [its] noncarrier business enterprise” as a dealer in commodities. /d.

at 319 (emphasis added). The Court also relied on the fact that

Shannon’s assets were not in large part composed of transportation

facilities, nor was transportation a major item of expense. Jd. at 320.

The interLATA telecommunications connection that petitioner pro-

poses to operate, on the other hand, is an integral part of a telecom-

munications service concededly offered “for hire” by a firm in the

business of providing telecommunications services.

° This Court summarily affirmed the Official Services decision, but

whether directory assistance was offered “for hire” was not raised by

any of the parties on appeal and thus was not the basis of the Court’s

summary affirmance. As this Court stated in Celebrezze, “the

precedent.al effect of a summary affirmance extends no further than

‘the precise issues presented and necessarily decided by those

actions.” ” 460 U.S. at 784-785 n.5.

11

Operating Company located in various areas and com-

munications between Operating Companies and their cus-

tomers” (Pet. App. 44a)) posed a problem because they

crossed LATA boundaries. The district court decided to

assign those facilities to the BOCs because it did not be-

lieve that the BOCs should be forced to rely on AT&T for

services integral to local telephone service.'® The district

court also decided to allow the BOCs to continue operat-

ing the networks on a centralized basis because the alter-

native was to require them to reconstruct the system to set

up a separate network in each LATA. Id. at 44a-S0a.'!

This reasoning does not suggest that the district court

thought it was establishing a broad rule for the future al-

lowing the BOCs to design new networks offering new ser-

vices in competitive markets on an interLATA basis with-

out obtaining a waiver.

Subsequent events confirmed that the Official Services

result was not intended to apply to all directory-type ser-

vices. Thus, the district court ruled soon after the Official

Services decision that even interLATA directory assistance

to other independent telephone companies was not per-

mitted under the decree in the absence of a waiver. United

States v. Western Electric Co., Civ. No. 82-0192 (D.D.C.

Feb. 6, 1985), slip op. 6, n.9; C.A. App. 39.

Moreover, as the district court pointed out, the direc-

tory service at issue here is not comparable to the “white

pages” directory service at issue in the Official Services

decision. Although the proposed gateway’s central proces-

10 See Competitive Impact Statement, 47 Fed. Reg. 7170, 7176 n.24

(1982) (“the provision of a listing of the phone numbers and addresses

of subscribers and the related directory assistance function are in-

herent parts of exchange telecommunications”).

'! Petitioner asserts (Pet. 16) that “all the parties to the decree”

shared the view that directory assistance did not amount to an offering

of long-distance service “for hire.” However, none of the parties even

addressed the “for hire” point. See Pet. Ann 44a-4Sa

12

sor contains what can be termed a “directory” of informa-

tion service providers, it provides much more than the

phone number of the ISPs. The customer interacts with

the gateway, seeking information about subjects of in-

terest, relaying further requests back to the central proc-

essor, and deciding which, if any, ISP may provide the in-

formation being sought. The gateway itself is the service

the customer is hiring from the BOC; the BOC does not

itself provide the services about which it provides informa-

tion to the customer. White page users, on the other hand,

are “hiring” local telephone service, and the directory is an

incidental service provided to facilitate its use.

Accordingly, there is no inconsistency in the lower

courts’ refusal to extend the treatment afforded the pre-

existing official services network in 1983 to petitioner’s

proposed interLATA gateway service. The lower courts’

interpretation of the decree to prohibit such service in the

absence of a waiver is consistent with the language of the

decree.'? In these circumstances, there is no need for

review by this Court.

'2 Petitioner asserts that the decision below impairs its ability to

provide consumers with low-cost gateway services. Pet. 18. But the

prohibition of Section II(D)(1) is unconditional; it makes no exception

for “lost efficiencies.” And when the district court modified the decree

to permit the BOCs to offer gateway services, it explained that the

BOCs would have flexibility to design and create an information serv-

ice network only “[i}nsofar as this goal is attainable without interfer-

ing with the core decree restrictions” (714 F. Supp. at 12 n.42) and

only to the extent that specific restrictions and conditions are observed

(id. at 12). Moreover, if petitioner can show that its proposed gateway |

architecture would not afford it the opportunity to use its local |

telephone monopoly to impede competition in the interexchange :

market, it can obtain a waiver under Section VIII(C) of the decree. See :

note 1, supra.

a

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General*

JAMES F. RILL

Assistant Attorney General

ALISON L. SMITH

Deputy Assistant Attorney General

CATHERINE G. O’SULLIVAN

ANDREA LIMMER

Attorneys

JANUARY 1990

* The Solicitor General is disqualified in this case.

1s U.S. GOVERNMENT PRINTING OFFICE: 1991—282-061/20329