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Judicial Review of Justice Department Consent Decrees:
Is the Tunney Act Glass HalfEmpty or HalfFull?
Remarks By
Jay L. Himes Chief, Antitrust Bureau
Office of the New York Attorney General
COMPTEL PLUSSpring Convention and Expo
Las Vegas, Nevada
February 28, 2007
Judicial Review of Justice Department Consent Decrees:
Is the Tunney Act Glass HalfEmpty or HalfFull?
By Jay L. Himes1
I will first speak briefly to the antitrust consent decree background that led Congress to pass
the Tunney Act in 1974. After that, I will address the Court’s role under the statute, and the Act’s
importance generally in the competitive landscape.
Consent Decree Background
The nation’s first federal antitrust law is the Sherman Act, which Congress passed in 1890.2
The law itself did not produce very much immediate antitrust enforcement at the federal level. But
during the first decade of the 20th century, in the administrations of Presidents Roosevelt and Taft,
federal antitrust enforcement picked up.3 The Justice Department’s use of consent decrees to settle
antitrust cases, which are submitted to the court for approval, began back in that early period of
activity, about 100 years ago.4
On the order of 80% of Justice Department civil antitrust cases came to be settled by consent
1 Chief, Antitrust Bureau, Office of the New York Attorney General. The views expressed are those of the author, and do not represent the views of the Office of the New York Attorney General, or of the Office’s Antitrust Bureau.
2 15 U.S.C. §§ 1 et seq.
3 See James May, Antitrust Practice and Procedure in the Formative Era: The Constitutional and Conceptual Reach of State Antitrust Law, 18801918, 135 U. Pa. L. Rev. 495, 495501 (1987) (comparing state and federal antitrust enforcement activity); Walton Hamilton & Irene Till, Antitrust In Action 23, 24 & App. G (1940) (“Antitrust In Action”), reprinted as Senate Temporary National Economic Committee, 76th Cong., Monograph No. 16, Investigation of Concentration of Economic Power (Sen. Comm. Print 1941).
4 See United States v. Otis Elevator Co., Docket No. 13884 (C.C.N.D.Cal. June 1, 1906), published in Decrees and Judgments in Federal AntiTrust Cases July 2, 1890 – January 1, 1918 107 (1918); Antitrust In Action, supra n.3, at App. D.
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decree.5 The practice, however, faced criticism from antitrust scholars and commentators over the
years. The authors of a landmark study, prepared for Congress in 1940, described the consent
decree process this way:
In theory [the judge] . . . is supposed to lay bare the questions in controversy, and in informed judgment satisfy himself that the agreement does justice between the industry and the public. In fact, his role is ceremonial; he brings to the accord a passive spirit and his imprimatur. The adverse parties have been in protracted conference; they have arrived at the terms of settlement; they confront the judge with a fait accompli. The jurist has only casual knowledge of the issues; he lacks facilities for informing himself; he has no ready norms for testing the fairness of the provisions. He asks a few perfunctory questions; he may make a minor change or two. The lawyers for the Government appear satisfied. He accepts the instrument on faith.”6
A 1959 congressional report similarly called judicial consent decree approval “a matter of
purely formal routine,”7 and sharply criticized the overall secrecy of the Justice Department’s
program.8 Thereafter, the Justice Department adopted a practice of issuing a press release upon the
filing of a proposed consent decree with the court, and of affording interested parties an opportunity
to comment or object before seeking court approval. The Department also reserved to itself a 30
day period within which to withdraw its consent.9
5 S. Rep. No. 93298, 93rd Cong., 1st Sess. 1, 5 (1973) (“1973 Senate Report”); 119 Cong. Rec. 3449, 3451, 3454 (Feb. 6, 1973) (statement of Sen. Tunney). See generally Report of the Antitrust Subcomm. of the House Comm. on the Judiciary on the Consent Decree Program of the Department of Justice, 86th Cong., 1st Sess., at ix, 78 (House Comm. Print 1959) (“1959 Subcommittee Report”) (noting that, “for decades,” 75% of all civil antitrust equity cases were resolved by consent decree).
6 Antitrust In Action , supra n. 3, at 88. See generally Lloyd C. Anderson, United States v. Microsoft, Antitrust Consent Decrees and the Need for a Proper Scope of Judicial Review, 65 Antitrust L. J. 1 (1996) (“Antitrust Consent Decree Review”); Note, The ITT Dividend: Reform of Department of Justice Consent Decree Procedures, 73 Colum. L. Rev. 594 (1973) (“The ITT Dividend”).
7 1959 Subcommittee Report at 14. See also id. at x.
8 Id. at 1214, 2526. Indeed, the House Antitrust Subcommittee concluded that “[t]he consent decree practice has established an orbit in the twilight zone between established rules of administrative law and judicial procedures.” Id. at 15. See also 119 Cong. Rec. 24597, 24598 (July 18, 1973) (statement of Sen. Tunney) (“[t]he history books are replete with instances of antitrust settlements hammered out behind closed doors completely out of the public view, and with virtually no regard for the requisites of due process”).
9 See Hearings before the Subcomm. On Antitrust and Monopoly of the Sen. Judiciary Comm. On the Antitrust
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Congress Adopts the Tunney Act
Not until 1974, however, did Congress impose a statutory framework on the Justice
Department’s practice or enhance the court’s review authority. Disclosures in the wake of the
Watergate scandal suggested that Nixon administration officials may have settled a merger case
against IT&T in exchange for funding the Republican National Convention.10 Congress responded
by enacting what has come to be known as “the Tunney Act” to shine light on the Justice
Department’s antitrust consent decree process.11
A leading witness, testifying in support of Senator Tunney’s bill, was a judicial luminary,
Circuit Court Judge J. Skelly Wright. Judge Wright reminded that Antitrust Division officials are
neither omniscient nor infallible.12 In approving a particular consent decree, “the Justice Department
attorneys may overlook certain issues, ignore certain concerns, or misunderstand certain facts.”13
Judge Wright further cautioned that the defendants in antitrust matters often “wield great influence
and economic power. They can often bring significant pressure to bear on Government, and even
on the courts, in connection with the handling of consent decrees.”14
Penalties and Procedures Act, 93rd Cong., 1st Sess., at 9091 (1973) (“1973 Senate Hearings”) (testimony of Assistant Attorney General Thomas E. Kauper), reprinted in 9 Earl W. Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes 657475 (1984) (“Federal Antitrust History”); The ITT Dividend, supra n. 6, at 60607. Accordingly, prior to the Tunney Act, the courts sometimes were called on to consider the views of interested parties in deciding whether to approve a proposed decree. See, e.g., United States v. LingTemcoVought, Inc., 315 F. Supp. 1301 (W.D. Pa. 1970); United States v. CIBA Corp., 50 F.R.D. 507 (S.D.N.Y. 1970); United States v. Carter Prods., Inc., 211 F. Supp. 144 (S.D.N.Y. 1962).
10 The ITT Dividend, supra n. 6, 73 Colum. L. Rev. at 60306.
11 The Antitrust Penalties and Procedures Act, Pub. L. No. 93528, §§ 13 (Dec. 21, 1974), codified as 15 U.S.C. §§ 16(b) (h).
12 1973 Senate Hearings at 145, 146 (“occasionally [they] make mistakes”), reprinted in 9 Federal Antitrust History at 6592 .
13 1973 Senate Hearings at 146, reprinted in 9 Federal Antitrust History 6592.
14 1973 Senate Hearings at 147, reprinted in 9 Federal Antitrust History at 6593. See also 119 Cong. Rec. 3449, 3451 (Feb. 6, 1973) (statement of Sen. Tunney) (“[p]ut simply, the bigger the company, the greater the leverage it has in
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Thus, under the Tunney Act, whenever the Justice Department proposes to settle an antitrust
case, the court – not the Justice Department, and not the merger parties – must determine whether
the proposed settlement is “in the public interest.”15
To set in motion this judicial review process, the Tunney Act directs that, before an antitrust
consent decree may be approved, the Justice Department must explain the decree in something
called a “competitive impact statement,” which is published publicly.16 Then, interested persons
may submit comments on the proposed decree, to which the Justice Department itself typically
responds.17 At this point, the Justice Department may ask the court to approve the proposed consent
decree. In connection with these proceedings, the Tunney Act court may hold hearings to receive
evidence from government officials or experts witnesses, or appoint a special master or outside
consultants to aid its public interest determination.18 The court may also permit interested parties to
participate.19
As Senator Tunney said at the time, the law is intended to “make our courts an independent
force . . . in reviewing consent decrees” and to “assure that the courtroom . . . becomes the final
arbiter in antitrust enforcement.”20 In a leading early Tunney Act ruling, Judge Greene in the AT&T
Washington).
15 15 U.S.C. § 16(e).
16 15 U.S.C. § 16(b) & (c).
17 15 U.S.C. § 16(b) & (d).
18 15 U.S.C. § 16(f) (1) & (2).
19 15 U.S.C. §16(f) (3). The Act’s provisions permitting interested persons to participate in the public interest determination are intended to go beyond the court’s authority to grant intervention under Rule 24 of the Federal Rules of Civil Procedure. 9 Federal Antitrust History at 6536.
20 1973 Senate Hearings at 1. See also H.R. Rep. No. 931463, 93rd Cong., 2nd Sess., at 8 (1974) (the bill seeks to remedy “judicial rubber stamping” of Justice Department proposals).
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case, emphasized that, by passing the new law, Congress sought to eliminate “judicial rubber
stamping” of Justice Department proposals, and, instead, to cement the court’s role as “an
independent check upon the terms of decrees negotiated by the Department of Justice.”21
Judge Greene had the right idea. However, other court decisions eroded the judicial function
under the Tunney Act, and adopted, instead, a review standard that was much more deferential to
the Justice Department’s settlement position. In a frequently quoted ruling, the federal appeals
court in San Francisco said that the Justice Department’s settlement should be approved so long as
it was “within the reaches of the public interest”22– thus effectively diluting the “in the public
interest” language of the statute itself. Still later, in the the first Microsoft case, the appeals court in
Washington said that the court should approve a consent decree unless doing so would make “a
mockery of judicial power.”23
These judiciallydeveloped standards of review denied any significant role for the courts. It
was a rare court, indeed, that declined to approve a Justice Department consent decree.24 As a
result, in 2004, Congress amended the Tunney Act to “correct[]” the law’s “misinterpretation” by
21 United States v. AT&T, 552 F. Supp. 131, 14849 (D.D.C. 1982), aff’d sub nom. Maryland v. United States, 460 U.S.1001 (1983). See also United States v. GTE Corp., 603 F. Supp. 730, 740 n.42 (D.D.C. 1984) (Greene, J.) (under the legislative history and purpose of the Tunney Act, “it is abundantly clear that the courts were not to be mere rubber stamps, accepting whatever the parties might present”).
22 United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981), cert. denied, 454 U.S. 1083 (1981). See also United States v. Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir.) (quoting Bechtel with approval), cert. denied sub nom. MCI Communications Corp. v. United States, 498 U.S. 911 (1990).
23 United States v. Microsoft Corp., 56 F.3d 1448, 1462 (D.C. Cir. 1995) (“Microsoft I”).
24 See United States v. The Thomson Corp., 949 F. Supp. 907, 930 (D.D.C 1996) (fee schedule for licensing West’s star pagination rendered the consent decree beyond “the reaches of the public interest,” quoting United States v. Microsoft, 56 F.3d at 1460); Antitrust Consent Decree Review, supra n. 6, 65 Antitrust L. J. at 34 (the Microsoft test, “taken literally, is almost no test at all”); Paula L. Blizzard, 13 Berkeley Tech. L. J. 355, 367 (1998) (the Microsoft test “has reduced the public inquiry determination of the Tunney Act to a negligible inquiry”).
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the courts.25 Congress legislated specifically to drive home that the judicial review function is not –
and was never intended to be – a paper tiger.
The 2004 Tunney Act Amendments
The changes that Congress made in 2004 are intended to “restore” the federal court’s review
authority to assure that proposed consent decrees “are good for competition and consumers.”26 The
Tunney Act thus provides that, in making its public interest determination, the court must – “shall”
– “consider” various enumerated factors. Among these factors are:
(A) the competitive impact of [the] judgment . . . and any . . . competitive considerations bearing upon the adequacy of [the proposed consent] judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint . . . .27
The 2004 amendments made it mandatory – not merely discretionary – for the court to take
these considerations into account. Senator Kohl explained the reason for this change:
Requiring, rather than permitting, the court to examine these factors will strengthen thereview that courts must undertake of consent decrees and will ensure that the court examines each of the factors listed therein. Requiring an examination of these factors is intended topreclude a court from engaging in “rubber stamping” of antitrust consent decrees . . . .28
Requiring, rather than permitting, review of a series of enumerated factors, the Senator added,
represents Congress’ intent to “restor[e] a robust and meaningful standard of judicial review . . . .”29
25 150 Cong. Rec. S3617 (Apr. 2, 2004) (statement of Sen. Kohl).
26 150 Cong. Rec. S3615 (Apr. 2, 2004) (statement of Sen. Kohl). See also id. (statement of Sen. Kohl) (the amendments “will restore the original intent of the Tunney Act, and make clear that courts should carefully review antitrust consent decrees to ensure that they are in the public interest”).
27 15 U.S.C. § 16(e)(1)(A) & (B).
28 150 Cong. Rec. S3618 (Apr. 2, 2004).
29 Id.
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Interestingly, this particular statutory change reversed a 1973 change – made in response to Justice
Department criticism – at the time of the Tunney Act’s enactment.30
The central purpose of the 2004 changes was to reaffirm judicial empowerment. By the
amendments, Congress intended the courts to “undertake meaningful and measured scrutiny of
antitrust settlements to insure that they are truly in the public interest . . . .”31 At the same time, the
legislative history repeatedly rejects any notion that the courts should simply defer to the DOJ.32
The Court’s Role
If one reads the words of the Tunney Act and the legislative history of both the 1974 law and
the 2004 amendments, you could come away thinking that courts will have an important role in
making sure that anticompetitive mergers do not take place, and in protecting the benefits of
competition for the public at large. There is not, however, much in the experience to date to
confirm that assessment, although – and this is an important qualification – the effect of Congress’
recent amendments remains to be seen. Thus far, no court has decided just how much Congress
30 See 1973 Senate Report at 2, 3. Compare S.782, 93rd Cong., 1st Sess., § 2(d) (Feb. 6, 1973), with Pub. L. No. 93528, § 2(d) (Dec. 21, 1974), reprinted in 9 Federal Antitrust History at 6552, 6553 and 6549, 6550; 1973 Senate Hearings at 9395 (testimony of Assistant Attorney General Thomas E. Kauper) and letter of Thomas E. Kauper to Hon. Jacob Javits, dated July 12, 1973, reprinted in 9 Federal Antitrust History 657678, and 6613; Hearings on S.782 and Related Bills before the Subcomm. on Monopolies and Commercial Law of the House Judiciary Comm, 93rd Cong., 1st Sess., at 45 (Sept. 20, 1973) (“1973 House Hearings”) (testimony of Sen. Tunney) (the change arose “mainly because the Justice Department was opposed” to the bill in the Senate), reprinted in 9 Federal Antitrust History at 6576, 6632.
31 150 Cong. Rec. S3617 (Apr. 2, 2004) (statement of Sen. Kohl). See also id. at S3619 (statement of Sen. DeWine) (“mere rubberstamping is not acceptable”); 150 Cong. Rec. H3658 (June 2, 2004) (statement of Rep. Sensenbrenner) (the amendments are intended require judicial review beyond the “mockery of justice” standard); id. at H3659 (statement of Rep. Scott) (the amendments require “that courts review antitrust consent decrees in a meaningful manner, not simply as a rubber stamp to such decrees”).
32 150 Cong. Rec. S3617 (Apr. 2, 2004) (statement of Senator Kohl) (“[i]t is [the courts’] overly deferential standard review which makes reform of the Tunney Act necessary”); see also id. (statement of Sen. Kohl) (quoting John J. Flynn & Darren Bush, The Misuse and Abuse of the Tunney Act: The Adverse Consequences of the “Microsoft Fallacies,” 34 Loyola U. Chi. L. J. 749, 758 (2003)); id. at. S3615 (Apr. 2, 2004) (statement of Sen. Leahy) (the amendment, which responds to concerns that “lack of guidance” in the statute “results in courts that are overly deferential to prosecutors' judgments,” will assure that the courts exercise “independent judgment based on a series of enumerated factors”); id. at S3616 (statement of Sen. Kohl) (the court should undertake “real scrutiny”).
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changed the judiciary’s role.
As I said earlier, only rarely have Tunney Act review courts declined to approve a Justice
Department settlement because it was not in the public interest.33 The most controversial settlement
of all – that involving Microsoft in 2001 – produced tens of thousands of public comments, which
included extensive opposition from sophisticated industry participants and commentators.34 The
District Court approved the settlement’s substantive terms nonetheless, and the Court of Appeals
affirmed.35
In short, the courts have been reluctant to secondguess the Justice Department’s assessment
that its negotiated settlement appropriately protects the public. The concern producing this dis
engaged judicial approach really is this: in deciding whether to challenge a merger or other conduct
under the antitrust laws, the Justice Department exercises prosecutorial discretion. The discretion
affects whether to charge a violation at all, and if so, the settlement terms on which the Justice
Department is prepared to resolve the violation that it has alleged.
Courts are themselves loathe to review this exercise of authority by the executive branch.
The judiciary simply has not been inclined to remold the Justice Department’s complaint into a
new case, even though Tunney Act commenters may protest that the violation alleged by the Justice
Department is too narrow or otherwise inappropriate.36 Moreover, the Justice Department itself can
33 See n. 24, supra. For preTunney Act cases, see United States v. Blue Chip Stamps Co., 272 F. Supp. 432 (C.D. Cal. 1967), aff’d sub nom. Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580 (1968) (consent decree was submitted three times before approved); United States v. Pan American World Airways, Inc., 1959 Trade Cas. (CCH) ¶ 69,300 (S.D.N.Y. 1959) (directing parties to try the case); The ITT Dividend, supra n. 6, 73 Colum. L. Rev. at 61015.
34 United States v. Microsoft Corp., 231 F. Supp. 2d 144, 151 (D.D.C. 2002) (noting that 32,392 comments were received), aff’d sub nom. Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D.C. Cir. 2004).
35 The District Court required only that the parties include an express provision recognizing the court’s authority to act sua sponte to enforce the consent decree. United States v. Microsoft Corp., 231 F. Supp. 2d at 20102.
36 See Microsoft I, 56 F.3d at 1459 (the Tunney Act does not authorize the court to “construct [its] own hypothetical
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be expected to argue that constitutional separation of powers principles bar judicial oversight,
except perhaps in the most unusual of circumstances.37
For this reason, the Justice Department regards the Tunney Act as a sort of crazy relative up
in the attic.38 It’s someone you can’t get rid of – Congress, after all, has legislated – but it’s not
someone that you go out of your way to showcase.
The Pending Telecom Tunney Act Proceedings
Bearing in mind this experience since 1974, many of us are watching with interest to see
how the court in Washington, D.C. deals with the settlements in the Verizon/MCI and SBC/AT&T
mergers. Let me quickly summarize where that stands.
The Justice Department undertook a lengthy antitrust investigation after these two multi
billion deals were announced a couple years ago in close time proximity to each other. The New
York Antitrust Bureau, which I head, began its own investigation into the Verizon/MCI deal. The
New York Attorney General has long advocated for competition in the telecommunications
industry, and it appeared to us that the Verizon/MCI transaction represented a step backward
towards reconcentrating an industry that the judiciary and Congress sought to make more
case and then evaluate the decree against that case”).
37 See Maryland v. United States, 460 U.S. 1001, 100406 (1983) (Rehnquist, J., dissenting); Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion,” citing, among other authorities, Confiscation Cases, 74 U.S. (7 Wall.) 454 (1869)).
38 See generally 1973 Senate Hearings at 93 (testimony of Thomas E. Kauper) (arguing that the bill’s “extensive and rather undefined judicial review . . . would seriously disrupt the settlement process, impair [the Antitrust Division’s] ability to obtain meaningful settlements, delay antitrust relief in cases having direct bearing on the health of our economy, and unnecessarily require the use of Department and judicial resources”), and 1973 House Hearings at 62 (testimony of Deputy Assistant Attorney General Bruce B. Wilson) (arguing that the bill “will seriously disrupt settlement proceedings in the courts, and weaken [the Antitrust Division’s] ability to obtain consent decree settlements from defendants”), reprinted in 9 Federal Antitrust History at 6576, 6634. The Justice Department’s resistance to oversight of its antitrust consent decree program is longstanding. See 1959 Subcommittee Report at xiii (noting that the “extent to which the Department of Justice went to withhold information from the committee in this investigation is unparalleled in the committee's experience”); see also id. at ix, xix.
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competitive. The same could be said, of course, for the SBC/AT&T merger, but that deal, in itself,
had a lesser impact in New York.
The Justice Department’s investigation eventually produced antitrust complaints and
settlements directed to only a very narrow slice of the telecommunications industry. Briefly, federal
antitrust officials concluded that there likely would be anticompetitive effects in “local private
lines” (or “special access”) services, offered to large and medium size businesses or government
customers.39 The analysis goes like this:
At any given commercial building, one can identify the telecommunications providers. At
some buildings in the Verizon or SBC footprints, the only two providers are the two merger partners
themselves – Verizon and MCI on the one hand, or SBC and AT&T on the other. Insofar as each of
those individual buildings may be thought of as a relevant market under the antitrust laws, then the
two deals present a situation where you go from two competitors in that “market,” premerger, to
only one, postmerger. This is what antitrust practitioners call a “merger to monopoly.”
For antitrust enforcers, a merger to monopoly is very bad. It’s hard to escape the conclusion
that such a transaction will raise prices to customers. So, this is a scenario in which antitrust
officials are likely to intervene, either to block the transaction altogether, or to require a remedy that
preserves the premerger state of competition.40
The Justice Department identified buildings like this – which are referred to as 2to1
buildings – throughout the country. Its remedy for the condition is to require that
39 Complaints, dated October 27, 2005, in United States v. SBC Communications, Inc., Civil Action No. 05CV2102 (EGS) (D.D.C.), and United States v. Verizon Communications, Inc., Civil Action No. 05CV2103 (EGS) (D.D.C.).
40 See United States Antitrust Division Policy Guide to Merger Remedies 4 (Oct. 2004) (“Remedies Guide”) (“[r]estoring competition is the “key to the whole question of an antitrust remedy,” quoting United States v. E.I. Du Pont de Nemours & Co., 366 U.S. 316, 326 (1961)); Ford Motor Co. v. United States, 405 U.S. 562, 573 (1972)). See also Remedies Guide at 4, 5 (an antitrust remedy must “restore competitive conditions the merger would remove,” and must “replac[e] the competitive intensity lost as a result of the merger”).
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telecommunications access to 2to1 buildings be made available to another competitor, post
merger, via divestiture. That is the settlement that the Justice Department has submitted to the court
in Washington for approval.41
We in the New York Attorney General’s office, and industry participants as well, think that
this approach misses the forest for the trees, insofar as protecting competition in the
telecommunications industry is concerned. We could run an entire program around that thesis, and
I’m not going to develop it here today.
The ongoing Tunney Act proceedings before the court in Washington raise several
narrower questions. One is whether the local private lines “market” that the Justice Department
posits – which consists of individual buildings – comports with the way that businesses operate in
the reallife telecommunications world. This is important because the alleged market cannot simply
be contrived, or gerrymandered, to justify a settlement.42
New York maintains that this approach does not faithfully depict reality, and that, in
consequence, the Justice Department is not remedying anything that matters in the real world. The
public interest, in our view, is not served by creating a strawperson, and then offering up voodoo
medicine to preserve its health.
Beyond that, however, New York and interested industry participants argue in the court
proceedings that, even on its own terms, the Justice Department’s remedy cannot protect the public
interest for other reasons. For example, although the Justice Department found a number of 2to1
41 Proposed Final Judgments, dated October 27, 2005, in United States v. SBC Communications, Inc., Civil Action No. 05CV2102 (EGS) (D.D.C.), and United States v. Verizon Communications, Inc., Civil Action No. 05CV2103 (EGS) (D.D.C.).
42 See Brown Shoe Co v. United States, 370 U.S. 294, 33637 (1962) (the market must “both correspond to the commercial realities of the industry and be economically significant,” quoting American Crystal Sugar Co. v. CubanAmerican Sugar Co., 152 F. Supp. 387, 398 (S.D.N.Y. 1957)).
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buildings throughout the country, it filtered out of its remedy more than 50% of those 2to1
buildings. The filtering out took place because the Justice Department concluded that, for these
particular buildings, entry by new competitors, postmerger, could not be excluded as a possibility.
How the Justice Department went about reaching this conclusion is a black box.
The Department has not presented to the court the universe of 2to1 buildings that it began
with. It similarly has not presented the data needed to allow the court or anyone else to replicate the
exercise that produced the final list of buildings that are subject to its remedy.
To give you a more concrete picture of what this means, let me refer specifically to New
York. There, the Justice Department’s proposed remedy calls for divestiture of access at 17
commercial buildings in all of the 5 boroughs comprising the City of New York, and a total of 38
buildings in the entire state.43 This is the remedy in a transaction where Verizon took out its most
significant competitor for business customers in New York. Across the entire United States, in the
Verizon service regions only 356 commercials buildings are involved.44
As yet, the Washington court has not decided whether the Justice Department’s two
settlements are in the public interest.
Conclusion
Although a consent decree represents a negotiated settlement, it is not merely a contract
between the parties. The decree’s approval is a judicial act by a branch of our government. It is,
therefore, imperative that the court avoid allowing the decree to become “an instrument of wrong”
43 See Appendix A to the Proposed Final Judgment in United States v. Verizon Communications, Inc., Civil Action No. 05CV2103 (EGS) (D.D.C.). The 21 additional buildings outside the City of New York are all in the City’s metropolitan area.
44 Id.
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to the public.45 At the same time, however, too much judicial review will dilute the incentive of
merger parties and other antitrust defendants to negotiate, rather than litigate, and thereby impair the
effectiveness of the consent decree as an enforcement tool.
Despite this tension, the judicial review function must be real. Otherwise, the Tunney Act
will fail in its mission to guard against not only overt misuse of the government’s exercise of
prosecutorial discretion, but also against Justice Department action that fails to protect the public
interest, albeit inadvertently.46
In this respect, antitrust is like many areas of the law. It achieves compliance by holding out
the prospect of robust enforcement and judicial oversight. Adherence to statutory obligations is
thus achieved by “dangl[ing] before the many the fate of the few.”47
45 United States v. Swift & Co., 286 U.S. 106, 115 (1932).
46 See, e.g., Antitrust Consent Decree Review, supra n. 6, 65 Antitrust L. J. at 3740; 1959 Subcommittee Report at 24 (noting that too lax a consent decree program “tends to convert antitrust violation into a calculated business risk”).
47 Antitrust in Action , supra n.3, at 81.
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