At best, therefore, the allocation scheme would be disruptive and cause a great many customer-carrier disputes; at worst, it would be totally unworkable in a substantial proportion of the transactions.
Third. Assuming that these difficulties could, somehow, be overcome, there remains a final obstacle to the allocation scheme: the adoption of a fair formula. The various proponents of the allocation plan have suggested different methods of implementation. Each of these methods, however, suffers either from the defect that it is tailored to the particular proponent's strengths and would substantially disadvantage other interexchange carriers, or from the flaw that it represents merely a vague concept, with the vital and difficult details left unaddressed.
For example, MCI proposes that the allocation reflect the percentage of subscribers who had previously designated a particular carrier. Opposition at 5 n.*. This would, of course, disadvantage those carriers which are just starting out and are still in the process of building a subscriber base.
Moreover, MCI does not address the problem of whether the number or the availability of carriers will change over a period of time,
or the question of whether the formula should be based on nationwide designations, designations from the territory of a particular Operating Company, or designations on a LATA-by-LATA basis.
Satellite Business Systems and Western Union avoid the problems inherent in the production of a formula by simply demanding that the Operating Companies be required to establish "reasonable eligibility criteria" for carrier participation;
ITT suggests that an approach similar to that used in international communications might work, predicting that the Court "may be able to smooth out the operation of an allocation arrangement through . . . an [undefined] economic benefit approach" (Response at 9); and U.S. Telephone recommends the adoption of an equally undefined "reasonable, non-discriminatory scheme." Response at 5.
Unless the Court were to establish its own allocation scheme -- a task that would seem to be as foreign to its Tunney Act responsibilities as it would be fraught with the same practical obstacles which have thwarted the efforts of AT&T's various competitors -- it would have to require each Operating Company to devise and implement its own plan. While as indicated in note 39 infra, the Court sees no basis for prohibiting the Operating Companies from undertaking this task if they are willing to do so despite the ensuing problems,
it will not impose such a requirement upon them.
Accordingly, the Court rejects the allocation alternative.
When a call is blocked, it is not completed. Several of AT&T's competitors propose that when a caller who has neither presubscribed nor dialed a carrier access code attempts to make an interexchange call, he be referred to a recorded announcement from his Operating Company advising him to dial the company's business office or an "800" number to obtain additional information. If the customer complied, he would be given the access codes of several interexchange carriers, and this would enable him to select a carrier
and thereafter to complete his call. Call completion would not be certain even at that juncture, however, for if the caller did not have an account with the particular carrier, he might not be accepted on such short notice, if at all.
These difficulties would, of course, be aggravated if the interexchange call were attempted during a holiday period (when a peak calling load traditionally occurs) or in an emergency (when the caller cannot wait for intricate subscription arrangements). Moreover, problems would be particularly likely for those who, on account of inexperience, age, indigency, language difficulty, and the like would not have made a selection in advance, but would have to do so on a moment's notice.
Since, as indicated above, a very substantial proportion of the subscribers would probably not select an interexchange carrier at the time equal access becomes a reality for their particular areas, it may be expected that this scheme would at that time cause a great deal of difficulty
Indeed, many individuals, faced with the complications described above, would simply hang up, never to complete their calls.
While some of the adverse impacts on the public from divestiture have been exaggerated, it is a fact that the reorganization, affecting as it does every single household in the United States, will present some complications to consumers in the short run.
It is important, however, and clearly in the public interest, that such practical problems be held to a minimum. Certainly, if a choice must be made between accommodating the interests of the public and those of the various competitors in the interexchange market, the interests of the public must take precedence. For while the protection and fostering of competition is the goal of the antitrust laws, it is that goal merely as a means to a broader objective -- the promotion of the interest of the consuming public. See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977) ("the antitrust laws were enacted for 'the protection of competition not competitors '").
Finally, it is not irrelevant that AT&T is now and will continue to be the carrier of last resort. It offers service to all subscribers, regardless of their circumstances, the frequency of the calls, or the places they call. That fact appears to have been considered by the parties at the time of the entry of the decree, and it bears on the issue whether a blocking rule should be required immediately upon the availability of equal access. The continued availability of a carrier everyone will be able to use is in the public interest and should therefore be encouraged.
Moreover, there would be some question as to the fairness of a system which at the first available opportunity required universal blocking of all undesignated calls but left AT&T's competitors free to accept or reject the blocked subscribers while AT&T had to continue to accept them all.
For these reasons, the Court is not prepared to construe the decree so as to impose the substantial burdens of a blocking rule upon the public immediately upon the achievement of equal access unless such a construction were plainly required. As explained above, no such requirement is explicit or clearly implicit in the decree.
The Court recognizes, of course, that this ruling may be of substantial assistance to AT&T.
For the reasons stated, that is a result that cannot initially be avoided without exorbitant costs to the public. It does not follow, however, that the Court, consistently with the promotion of competition, should not require the Operating Companies to make reasonable efforts to acquaint customers with their options with regard to interexchange service or that it should not take steps to preclude AT&T from receiving the calls of undesignated customers in perpetuity. Such measures are, indeed, entirely appropriate.
There is a substantial difference between a forcible assignment of customers to specific interexchange carriers, on the one hand, and the development of public information regarding the availability of such carriers, on the other. Likewise, although it may be unreasonable to require all telephone subscribers immediately upon the availability of equal access in a particular area to designate interexchange carriers on account of an event -- divestiture -- with which they have no direct concern or relationship, it is not inappropriate to expect them to make such designations at a time when they will be involved with the telephone company, and the services it provides, for other, unrelated, reasons
in any event.
On the basis of these considerations, the Court hereby grants Ameritech's motion, and it construes the decree, pursuant to the authority vested in it by sections VII and VIII(I) of the decree, as permitting
each Operating Company to route to AT&T the calls of any customer who, by the time equal access is available, has failed to make a selection of an interexchange carrier either by predesignation or by dialing an access code. Such permission is limited, however, as follows.
First. Each Operating Company shall, during the ninety days immediately preceding and the ninety days immediately following the availability of equal access at any end office, inform its customers who receive service from such office, of their options with respect to the various interexchange carriers.
This Operating Company information
shall include (a) reasonably detailed data concerning AT&T and its competitors serving the area, (b) advice to the customer to the effect that his present designation of an interexchange carrier will be free of charge, but that a subsequent designation may require payment of a fee,
and (c) advice to the customer that if he does not make a designation, he may subsequently be able to complete an interexchange call only by making a carrier selection at that time through the possibly cumbersome method described at pp. 13-15 supra. But see note 47 infra. Such information shall be provided to the customers at a minimum by way of inserts in the monthly bills.
Second. During the ninety-day period immediately following the achievement of equal access, each Operating Company shall allow each of its customers in the area being converted to equal access the opportunity to predesignate an interexchange carrier free of charge.
Third. Following the ninety-day period referred to above, each Operating Company shall again allow a predesignation free of charge
and provide information similar to that required above, at the time a customer receives new service if he still has not designated an interexchange carrier at that time. The receipt of new service by a customer means that (1) he receives service from the particular Operating Company for the first time, or (2) he moves to another location within the Operating Company area.
No Operating Company shall continue automatically to assign to AT&T the calls of a customer who receives new service but fails to designate an interexchange carrier although given an opportunity to do so pursuant to the procedures described above. The Operating Company may instead refer the caller to a recorded announcement advising him of the availability of interexchange carriers, or it may otherwise assist him in locating such a carrier, provided that no favoritism is shown to any particular carrier. Customers may, of course, at any time establish their own relationships with interexchange carriers they consider suitable and which are willing and able to accept their business.
These procedures strike an appropriate balance.
Taking into account the language of the decree and the intention of the parties, they fulfill the fundamental purpose of the decree to promote competition and protect the legitimate interests of the interexchange carriers, without imposing unreasonable and unnecessary burdens on the public at large.