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NEWSPAPER GUILD v. SAXBE

July 23, 1974

THE NEWSPAPER GUILD, Plaintiff,
v.
WILLIAM B. SAXBE, Defendant



The opinion of the court was delivered by: FLANNERY

 MEMORANDUM OPINION

 This case concerns the Justice Department's interpretation of section 4(b) of the Newspaper Preservation Act. 15 U.S.C. §§ 1801-04. This court has jurisdiction under 28 U.S.C. §§ 1331, 1337.

 The Newspaper Preservation Act, enacted July 24, 1970, provides a limited exemption from the antitrust laws for certain joint newspaper operating arrangements *fn1" that comply with the terms of the Act. The Act provides a means by which two or more newspapers, all but one of which is "failing," *fn2" can apply to the Attorney General for such an exemption. Section 4(b) provides:

 
It shall be unlawful for any person to enter into, perform, or enforce a joint operating arrangement, not already in effect, except with the prior written consent of the Attorney General of the United States. Prior to granting such approval, the Attorney General shall determine that not more than one of the newspaper publications involved in the arrangement is a publication other than a failing newspaper, and that approval of such arrangement would effectuate the policy and purpose of this chapter. 15 U.S.C. § 1803(b).

 Despite this clear language that all joint newspaper operating arrangements not already in existence must obtain prior consent from the Attorney General, the Justice Department on December 20, 1973, issued the following regulation:

 
The Newspaper Preservation Act does not require that all joint newspaper operating arrangements obtain the prior written consent of the Attorney General. The Act and these regulations provide a method for newspapers to obtain the benefit of a limited exemption from the antitrust laws if they desire to do so. Joint newspaper operating arrangements that are put into effect without the prior written consent of the Attorney General remain fully subject to the antitrust laws. 28 C.F.R. § 48.1 (1974), 39 Fed. Reg. 7 (Jan. 2, 1974).

 Plaintiffs seek a declaratory judgment that such regulation is an unlawful interpretation of the Act and an injunction against implementation of said regulation. The matter is presently before the court after oral hearing on defendant's motion to dismiss and plaintiff's motion for summary judgment.

 The defendant agrees that if section 4(b) is read literally, it is unlawful for any joint newspaper operating arrangement to be put into effect without prior Attorney General consent. Defendant's Motion to Dismiss at 5. The general rule is that where statutory language is clear, a court should not inquire further into the legislative purpose or intent but rather should order compliance with the clear language of the statute. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 80 L. Ed. 62, 56 S. Ct. 70 (1935).

 Nevertheless, defendant urges that to read section 4(b) literally is to ignore Congress' intent and purpose and will lead to futile and absurd results. This court agrees that on occasion a court may deviate from otherwise clear and unambiguous statutory language. "A court may qualify the plain meaning of a statute when its consequences -- plainly absurd, inequitable, or in conflict with legislative history -- permit the court to discern a clear legislative intention to the contrary." Center for National Policy Review on Race & Urban Issues v. Weinberger, 102 Wash. L. Rptr. 1241, 502 F.2d 370 (D.C. Cir. 1974). However, on review of the legislative history and Congressional purpose in enacting the Act, this court finds no clear Congressional purpose or intent contrary to the clear and unambiguous language of section 4(b). Further, this court perceives no futile or absurd results that may flow from a literal interpretation of section 4(b). Accordingly, this court will grant plaintiff's motion for summary judgment and will order the requested injunctive and declaratory relief.

 I.

 In 1964, the Justice Department initiated an investigation of these arrangements for possible violations of the antitrust laws. Suit was filed in 1965 and culminated in Citizen Publishing Co. v. United States, 394 U.S. 131, 22 L. Ed. 2d 148, 89 S. Ct. 927 (1969), which held the joint operating arrangement in Tucson, Arizona, to be violative of sections 1 and 2 of the Sherman Act and section 7 of the Clayton Act. The Court rejected the newspapers' "failing company" defense because they could not show that one of the papers actually was contemplating liquidation and that there was no other viable alternative, including a purchaser or bankruptcy reorganization.

 During the Citizen Publishing litigation various bills were introduced in Congress to grant an antitrust exemption for joint newspaper operating arrangements. The Newspaper Preservation Act, passed 16 months after the Citizen Publishing decision, was a legislative overruling of the Supreme Court's decision and a grant of a limited antitrust exemption for certain joint newspaper operating arrangements. In crucial part the Act provides that those joint newspaper operating arrangements which were in existence at the time of passage of the Act are permitted to continue with only minor qualification. 15 U.S.C. § 1803(a). As to joint operating arrangements not previously in existence, however, ...


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