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UNITED STATES v. AT&T

October 9, 1981

UNITED STATES of America, Plaintiff,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY; Western Electric Company, Inc.; and Bell Telephone Laboratories, Inc., Defendants



The opinion of the court was delivered by: GREENE

MEMORANDUM

Defendants have stated that they are planning to call as witnesses several former and present officials and employees of the Federal Communications Commission and of the United States Department of Justice. The government has interposed objections based on relevancy and privilege and the FCC has adopted and submitted to the Court a formal resolution raising privilege claims. *fn1" Proffers have been submitted by the defendants and briefs have been filed by the various interested parties.

 I

 It should be noted initially, that it is not easy to discern exactly what is embraced in defendants' proffer. On five occasions defendants have stated what they intend to ask the various new *fn2" witnesses; but with almost every proffer *fn3" the rationale for calling the witnesses and the substance of their proposed testimony changed drastically. *fn4" This uncertainty casts substantial doubt on the actual need of defendants for this evidence. That doubt is deepened by their failure to list most of the witnesses now sought to be called either in the pretrial period or during the first six months of the trial. *fn5" The almost inescapable conclusion to be drawn from these events is that defendants had no real basis for calling these witnesses, and that, when they did decide to call them, they had no substantial need for their testimony. *fn6"

 As for the Federal Communications Commission, its posture is likewise puzzling. Several of its former employees have testified in this case for the government *fn7" or have been listed as witnesses for many months, *fn8" without any objection from the Commission. Other employees have testified for plaintiffs in other lawsuits brought against AT&T, *fn9" several of them with the direct permission of the Commission. *fn10" Yet the Commission is now here for the first time with a formal claim of privilege, asserting, inter alia, that testimony by these individuals in this case would "result in a "chilling effect' which would injure the Commission's decision-making processes." No explanation has been forthcoming why those processes were not chilled when the Commission's officers and employees testified previously on similar subjects or why any privilege in that regard should not be deemed waived. *fn11"

 For these reasons, the Court would be justified in disposing of this entire matter without considering the merits, simply rejecting either defendants' request on the ground that it comes too late and is too ill-supported or that of the FCC on the basis that the agency seeks to assert privilege on a selective basis, depending upon the lawsuit and the party that may be involved. *fn12" In the exercise of its discretion, and in order to insure maximum ventilation of the facts, the Court will not dispose of the subject before it in this summary fashion. *fn13" In passing upon the merits of the claims of the various entities, however, the Court will, of necessity, also take into account the circumstances which generated these claims.

 II

 The issues raised by defendants' proffers and the conflicting claims of the various interested parties fall under three headings: (1) relevance, (2) privilege, *fn14" and (3) Rule 403 issues. *fn15" It is obviously difficult to decide precisely in advance what specific questions will be asked and what rulings will be appropriate in the event objection is made or a claim of privilege is interposed, and the Court will not attempt to do so here. *fn16" However, for the guidance of the interested parties, the Court has grouped the proffered proof (to the extent that it can be pieced together from defendants' descriptions) into separate categories in terms of subject matter, it has examined within each category such obstacles to admission as appear to exist, and it will set forth below the standards it intends to apply in disposing of the various claims.

 III

 With respect to several matters, defendants' proffer will be rejected and the testimony will not be allowed.

 1. In one such category are questions that tend to probe the mental processes of the individual members of the Federal Communications Commission, calling either for the reasons underlying various decisions of the Commission or for their understanding of what these decisions meant. *fn17" These matters are part of the agency's deliberative process and as such are clearly privileged. See United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 1004, 85 L. Ed. 1429 (1941); United States v. Nixon, 418 U.S. 683, 705, 94 S. Ct. 3090, 3106, 41 L. Ed. 2d 1039 (1974); Chicago B & Q Ry. Co. v. Babcock, 204 U.S. 585, 593-94, 27 S. Ct. 326, 327, 51 L. Ed. 636 (1907); SEC v. National Student Marketing Corp., 68 F.R.D. 157, 160-61 (D.D.C.1975), aff'd, 176 U.S. App. D.C. 56, 538 F.2d 404 (D.C.Cir.1976). As the Supreme Court has said, disclosure of intra-agency deliberations and advice is injurious to the government's consultative function *fn18" because it would tend to inhibit the frank and candid discussion that is necessary for an effective operation of government. *fn19"

 It is likewise clear that inquiry into such matters would not yield relevant evidence. The FCC has asserted-and the Court agrees-that that body acts officially only "through the adoption of rules, orders, policy statements which reflect its views and commands." FCC Order of September 30, 1981, par. 8. These statements are not subject to interpretation by an FCC Commissioner or employee (past or present) any more than a judicial decision is subject to elaboration or interpretation by way of the subsequent testimony of the judicial officer who rendered it. See SEC v. National Student Marketing Corp., supra; Thill Securities Corp. v. New York Stock Exchange, 57 F.R.D. 133 (E.D.Wis.1972); MCI v. FCC, 169 U.S. App. D.C. 154, 515 F.2d 385 (D.C.Cir.1974); Sterling Drug Inc. v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698 (D.C.Cir.1971). In short, it makes no difference-it is not relevant-what a particular Commissioner or staff member might say today about what he understood a particular decision to mean: *fn20" the decision speaks for itself.

 Defendants' basic proposition which they presumably wish to buttress through the testimony of the Commissioners-that they acted reasonably in light of FCC decisions and policies-must be tested against the expressed views of the Commission (and perhaps the further illumination of these views by subsequent FCC or judicial decisions) not through the testimony of Commissioners. See SEC v. National Student Marketing Corp., supra. *fn21" Extrinsic evidence as to how and why the FCC reached its decisions and what it intended thereby-either by Commissioners speaking in their individual capacities or by employees of the FCC-are irrelevant to the question whether defendants' compliance was reasonable.


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