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SOUTHERN PAC. COMMUNS. CO. v. AT&T

December 21, 1982;

SOUTHERN PACIFIC COMMUNICATIONS COMPANY, et al., Plaintiffs,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants



[EDITOR'S NOTE: PART 4 OF 4. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]

MEMORANDUM OPINION

UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

ORDERING PROCEDURES

 Although each of SPCC's charges is discussed in detail below, the Court finds no evidence of any deliberate plan to impede SPCC in the ordering of facilities. The ordering procedures used made available by defendants to SPCC were reasonable and there is no evidence that SPCC was injured by any of these procedures.

 Plaintiffs' evidence of early deficiencies in the ordering processes for local loops consisted of several insignificant matters that were expeditiously resolved. In the Court's view, SPCC's criticisms of the ordering and design process in the early days of its operations established nothing more than the fact that not every procedure or mechanism SPCC desired was always in place on the day SPCC served its first customer.

 Typical of the nature of these claims is SPCC's complaint that in 1974, when SPCC was dealing with only a few operating companies, each company developed its own form for placing orders (Sanford, PX6-0007 at 4). These kinds of minor differences among the operating companies strike the Court as inevitable during the start up phase of any complex relationship and, in any event, do not provide a basis for finding a violation of the antitrust laws. Similarly, although SPCC complained that there were no established procedures for ordering local distribution facilities, its witness conceded that by the Fall of 1974 most operating companies provided a single point of contact for such orders (Sanford, PX-6-0007 at 4). *fn260"

 SPCC also complained that the Bell operating companies initially failed to provide SPCC with standard installation intervals. However, the evidence shows that when SPCC commenced operations, each operating company had standard intervals for repetitive orders; on the other hand, for large or complex orders the intervals were established after the order was received (Thompson, S-T-65 at 13). Until 1976, the standard intervals provided plaintiffs and other specialized common carriers varied with each operating company (id.). Long Lines was treated in a similar manner and was required to negotiate an installation interval with each local Bell operating company involved each time it sought more than one circuit (Thompson, S-T-65A at 5). In these circumstances, the Court concludes that there is no evidence of discrimination in the provision of installation intervals.

 The good faith of defendants in attempting to develop reasonable procedures for the ordering of local facilities during the early days of SPCC's operations is apparent from plaintiffs' own exhibit reporting on a meeting held at Pacific Telephone in March 1974 concerning procedures for leasing local facilities to the specialized carriers (PX4-0332). The document discussed the need to provide "uniform treatment" to the specialized carriers and states (id.):

 
"AT & T Plant Department's advice is to treat orders for LDFs in the same manner as we would for private line service between the same points."

 SPCC also complained about the ordering and design procedures in effect today. The record is clear, however, that these procedures were established as a result of the Docket No. 20099 negotiations (Sanford, Tr. 1093; see Agreed Fact 6-2-011). As discussed above, the settlement agreement in Docket No. 20099 was reached only after extensive negotiations among the parties under the aegis of the FCC (Weinstein, S-T-201 at 6-7), and although at one point SPCC claimed that it entered into this agreement under "duress," the evidence contradicts this claim (e.g., Biaggini, Tr. 3207).

 Even if the Court were to disregard the fact that SPCC voluntarily agreed to these practices, it has failed to establish that any of the challenged practices were in any way improper. With respect to the period following Docket No. 20099, SPCC's witness, Mr. Sanford, identified only three major differences between Long Lines and SPCC in the ordering and design service provided by the Bell operating companies: use of defendants' Adnet system, participation in defendants' USOC ordering system, and participation in defendants' internal design process (Sanford, PX-6-0007 at 9). In addition to the fact that these procedures were voluntarily agreed to, the differences are of no consequence in view of the fact that SPCC has never offered to pay for the services in question (Sanford, Tr. 1080-81).

 Furthermore, the evidence satisfies the Court that none of these services would have been particularly useful to SPCC. Thus, Mr. Sanford's testimony and SPCC's documents cast serious doubt on the validity of SPCC's claims that access to the Adnet system would facilitate the ordering process. He testified that SPCC used courier services among its own locations and decided not to implement its own internal teletype system because it would cause mistakes and not result in appreciable time savings (Sanford, Tr. 1097-1100; S-4459C). Similarly, AT & T recommended against use of facsimile or electronic methods of exchanging information with the specialized carriers because it was costly and likely to lead to errors (Thompson, S-T-65 A at 18). When New York Telephone installed facsimile devices for the exchange of design information with the specialized carriers, it encountered recurring problems with SPCC's facsimile devices that were so severe as to require all communications also to be sent through the mail to insure that no information was lost (Marshall, T., S-T-129 at 17-18; S-3686; ...


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