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UNITED STATES v. AT&T

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


January 13, 1986

UNITED STATES OF AMERICA, Plaintiff,
v.
WESTERN ELECTRIC COMPANY, INC., et al., Defendants

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, United States District Judge

Pending before the Court for decision are a number of motions by various Regional Holding Companies for clarification of the decree. *fn1" The motions represent the view of several of the Regional Companies *fn2" that they are entitled under the decree to engage in a substantial range of telecommunications activities without obtaining waivers pursuant to section VIII(C) of the decree. In each case, the proffered interpretation is opposed by other entities, both commercial and governmental, which argue that the particular activities are prohibited by the decree.

 After careful scrutiny of all the relevant factors, the Court has determined that the interpretations of the decree advocated by the Regional Companies in these motions are inconsistent with the language, history, and purposes of the decree, *fn3" and that all the motions for clarification *fn4" must therefore be denied. Before discussing the motions in detail, it is appropriate to restate the basic purpose underlying the prohibitions imposed by the decree on the local companies.

 I

 General Considerations

 A central rationale for the divestiture of AT&T was the recognition that, when one company engages both in monopoly activities -- e.g., the provision of local telecommunications service -- and in competitive activities -- e.g., the provision of interexchange *fn5" and information services -- it possesses the incentive and the ability improperly to exploit its local monopoly power in at least two ways.

 First, such a company may subsidize its competitive ventures with income generated by the local telephone ratepayers (who, unlike the customers of a competitive enterprise, lack the ability to go elsewhere for their telephone service and who can therefore be charged whatever rates the local regulators can be persuaded to approve); *fn6" and second, it can give preferential treatment *fn7" to its own competitive affiliates, thereby impeding the success of non-affiliated competitors or even forcing them out of business. *fn8" Evidence was adduced by the government in the trial of this case that the Bell System was guilty of such practices. *fn9"

 The history of the government's struggles with AT&T *fn10" indicated to those who negotiated and approved the current consent decree that, when the local companies were divested to continue on their own the provision of the local monopoly telecommunications services, they had to be prohibited from engaging also in competitive long distance and information services. *fn11" Accordingly, a specific prohibition to that effect -- one of the few decree provisions directly applicable to the local companies -- was incorporated in the decree. *fn12"

 The logic of such a provision was as obvious as its incorporation in the decree was crucial. Without it, the result of the break-up would have been to exchange one nationwide monopoly with the incentive and ability to exploit monopoly power and injure competition for several smaller monopolies with the identical incentives and abilities. The only distinction between the "old" Bell System and the present Regional Company system was and is that the Bell monopoly was nationwide in scope while each of the seven Regional Companies possesses an equally powerful monopoly *fn13" in a particular geographic region. *fn14"

 Insofar as the threat of injury to competition, competitors, and ratepayers is concerned, that distinction is one without a difference, for the "bottleneck" *fn15" monopolies continue to exist as before. These bottlenecks -- i.e., the local companies with their ownership of the local switching systems and thus of the pathways which the interexchange and information providers must use if they wish to reach the ultimate consumers *fn16" -- merely changed hands: instead of being controlled by the management of AT&T, they are now being controlled in each region by the management of a particular Regional Company. However, the ability to exploit the bottlenecks anticompetitively has remained precisely the same. It was on this basis that the prohibition against the provision of interexchange and information services became a central part of the decree.

 That prohibition has far from outlived its usefulness. *fn17" Indeed, it could with some justification be argued that the Regional Companies, though obviously smaller than the Bell System, present dangers to competition that are in some respects even greater than those presented by that System.

 AT&T was imbued with a service mentality, a tradition dating from the days of the chairmanship of Theodore Vail and continued through that of John deButts and Charles Brown. Although the company may have engaged in some or all of the anticompetitive activities with which it was charged, the balance wheel of the service tradition was always present. By contrast, the Regional Companies, or some of them, indicate by their public statements, their advertisements, and their rush to diversification, combined with their relative lack of interest in basic telephone service itself, *fn18" that an ascent into the ranks of conglomerate America rates far higher on their list of priorities than the provision of the best and least costly local telephone service to the American public. *fn19" Anyone faced with the prospect of permitting these companies to enter competitive markets, particularly the interexchange and the information markets, *fn20" would therefore have to exercise considerable caution lest the companies be empowered, even encouraged, to use their local monopoly advantage as a means to decimate the competition in these markets and thus to enhance further their conglomerate ambitions. *fn21"

 Moreover, unlike the Regional Companies, the Bell System was constrained significantly by the 1956 consent decree in that many of the newer technological markets, e.g., computers, were out of its reach, and the System's managers were therefore content to concentrate their efforts on telecommunications. The Regional Companies, by contrast, are already expanding in almost every conceivable way, from real estate ventures to foreign trade, from publishing to computer retailing. Financial subsidies from ratepayer-supported local telephone activities to these many types of operations are both easier to hide and harder to detect than subsidies to only a few "outside" enterprises, and so are manipulations of the local loops to disadvantage the many competitors in the myriad of enterprises in which the Regional Companies are engaged. *fn22"

 Through the memoranda filed by the Regional Companies in support of the Ameritech motion runs the thread that greater competition and the participation of more competitors in the telecommunications markets are in the public interest *fn23" -- certainly an unexceptionable point as a generality. However, such arguments are drained of much of their persuasive force when they are applied to a situation where the would-be competitors could readily take advantage of their monopoly status in a variety of ways vis-a-vis their non-monopolistic competition. *fn24"

 For that reason, the participation of the Regional Companies in the markets they wish to enter *fn25" would not be likely to promote genuine, fair competition; the more probable outcome would be that such entry would deny to others engaged in commerce in those markets the level playing field to which they are entitled under law, under the decree, and in plain equity and justice. *fn26"

 The current motions must and will be considered in that context.

 II

 Shared Tenant Services

 In its shared tenant services motion, Ameritech *fn27" is asking for an order which would "clarify" the decree *fn28" to the effect that it permits the Regional Companies to provide certain shared tenant services, *fn29" -- the marketing of automatic carrier selection and traffic analysis. *fn30"

 The shared tenant services market has developed substantially over the past few years, *fn31" for such services present several advantages to both developers and tenants. *fn32" Accordingly, several independent companies have entered these markets, and the Regional Companies now seek to penetrate them as well. However, as will be seen, the shared tenant services at issue in this motion are interexchange services, and the local companies are therefore prohibited by the decree from providing them.

 A. Regional Company Contentions

 The Regional Companies concede that the proposed activities are in the gray area of an "overlap" between exchange and interexchange activities, *fn33" but they go on to argue that where this is the case, the decree permits them to engage in all of the activities involved in the overlapping areas, both exchange and interexchange. *fn34" That reasoning is erroneous if only because it proves too much. The very nature of modern telecommunications requires the two functionally distinct systems to meet: access to interexchange services is obtained through the local exchange provider and both use the same equipment. *fn35"

 The overlap is thus inherent in the technology, *fn36" and to cede the area it covers to the Regional Companies would allow them to enter the interexchange market by the back door on a wholesale basis *fn37" when their front-door entry into that market is prohibited by the most basic provisions of the decree. See section II(D)(1) of the decree which provides, without exception or ambiguity, that "after completion of the reorganization . . . no [Operating Company] shall . . . provide interexchange telecommunications services . . . ." In short, the "overlap" argument entirely lacks merit.

 B. Shared Tenant Services Are Interexchange Services

 There is an even more fundamental reason why the requests of the Regional Companies must be rejected -- one that relates to the kinds of activities that are subsumed under the rubric of shared tenant services.

 Both from the point of view of the statutory language and from that of the purpose of the decree, the prohibitions in section II(D) restrict the Operating Companies not merely from providing transmissions from a point in one exchange area to a point in a different exchange area but also from engaging in activities that comprise the business of providing interexchange services.

 If the decree had been intended to restrict the local companies only from the interexchange transmissions themselves, a prohibition on the provision of "interexchange telecommunications" would have been entirely adequate. But the decree goes further to prohibit these companies in section II(D)(1) from providing "interexchange telecommunications services." The term "services" obviously has, and it must be accorded, meaning and, as will now be seen, that meaning is far broader than is implied by the construction of the statute advocated by the Regional Companies.

 We begin with the obvious. The Operating Companies are excluded from the provision of interexchange services in order to prevent them from becoming competitors of the interexchange carriers. See Part I, supra. On this basis, many of the arguments advanced by the Regional Companies -- designed to demonstrate that there is little likelihood of their steering the shared tenant customers to one interexchange carrier rather than another *fn38" -- are largely beside the point, *fn39" for they fail to address the principal problem to which section II(D)(1) of the decree is addressed: the threat of competition by the Regional Companies themselves in the interexchange business.

 Interexchange transmission capacity is transformed into an interexchange service that can be offered for hire, *fn40" i.e., an interexchange business, by the performance of functions that are normally and necessarily performed by those who are engaged in that business (and who would therefore be competing with the Regional Companies with respect to these functions if the motion were granted). The issue of what constitutes an interexchange service or business is most usefully considered in the context of what the Regional Companies would be doing with respect to shared tenant services in the event the motion were granted and to compare these activities with the activities of interexchange enterprises.

 First. The Regional Companies would, at a minimum, be aggregating demand within a building and purchasing bulk interexchange services based on that demand for resale to the end users, i.e., the tenants. *fn41" The purchase of interexchange capacity on a wholesale basis (i.e., at prices that reflect total demand in a particular context) and its sale at retail clearly constitutes the provision of interexchange services under the decree. *fn42" Those engaged in such an activity are referred to as resellers, that is, interexchange providers. *fn43"

 If the Regional Companies performed such an activity, that is, if they purchased interexchange services at a bulk price based on the demand in a particular building and then sold such services at retail at higher prices to the building's tenants -- they, too, would be resellers in the interexchange business, and they would be in direct competition with other resellers and with facilities-based interexchange carriers.

 Second. The Regional Companies expect to perform these functions by making selections of interexchange capacity on what they deem the lowest-cost basis *fn44" and by marketing the services thus assembled.

 Given the existing technology and the economics of the interexchange business, the selection process is exceedingly complex, involving many variables. *fn45" Both facilities-based carriers and resellers market their services based on comparisons of their particular rates, or mix of rates, with the rates of their competitors in the interexchange business, in efforts thereby to persuade the ultimate users to purchase their services rather than those of other interexchange providers.

 These marketing features are also integral to the shared tenant services plan of the Regional Companies, and these companies would thus be directly competing with the legitimate interexchange providers through their own rate comparisons. One example of such a rate comparison already in being is a promotional brochure published by the provider of shared telecommunications services to the World Trade Center building in New York City soliciting potential subscribers among the building tenants by comparing its offerings against the offerings of other providers and by comparing its rates directly with those of AT&T, MCI, and Sprint. *fn46"

 Third. The Regional Companies would not only be purchasing and marketing interexchange services, they would also be selecting carriers for their customers and procuring additional interexchange services for them.

  In connection with the phase-in of equal access, *fn47" the interexchange carriers are undertaking elaborate and expensive campaigns, through the media and otherwise, to induce individual customers to presubscribe to their particular services. The cooperation of the Operating Companies is an essential element in that effort *fn48" to bring about free and fair competition among the various interexchange carriers, *fn49" and the Operating Companies are even "expected to assist the interexchange carriers by means of such measures as making lists of non-presubscribed customers available to them." *fn50"

 An analysis of the shared tenant services proposal of the Regional Companies indicates that they expect to stand this presubscription process on its head. Instead of assisting the interexchange providers in their efforts to "sign up" interexchange customers, the Regional Companies are seeking to offer a presubscription option of their own. If the Ameritech motion were granted, the tenant-customers would be expected to subscribe not to a legitimate interexchange carrier but to the Regional Companies, and those companies, in turn, would make the arrangements for choosing the interexchange services and options to serve those customers.

 Here again it is clear that the functions involved -- the selection of carriers and the procurement of interexchange services -- constitute integral parts of the interexchange business, and that, by performing these functions, the Regional Companies would be directly competing with the interexchange carriers for that business. *fn51"

 Fourth. The Regional Companies would be performing the interexchange switching and routing function, which takes calls from customers and directs them to their destination. That function would be performed by these companies in lieu of its performance by an interexchange carrier, particularly where the calls would not simply be routed to a particular carrier but to a particular service of a carrier, such as a private line. *fn52"

 However, the switching and routing functions quite obviously constitute key parts of the interexchange business, and the Regional Company activities in that regard would be performed in direct competition with the interexchange carriers in the interexchange business.

 In addition to the general threat arising from the Regional Companies' monopoly there is a special threat to fair competition by these kinds of activities, for at least two reasons. In the first place, a Regional Company, unlike any other competitor, could use its market power in the provision of exchange access *fn53" to maximize the interexchange carriers' costs with respect to such access while minimizing the rates paid for interexchange services by its own shared services enterprise. Furthermore, a Regional Company, again unlike any other interexchange competitor, could use its control over exchange access to become the dominant purchaser of interexchange services in its region, thereby further to establish its dominance with respect to interexchange rates and hence with respect to the interexchange market.

 C. Potential for Expansion

 All these problems are further exacerbated by the virtually unlimited potential in the event of a grant of the Regional Company request and the absence of a logical stopping point.

 As presently framed, the Ameritech motion is restricted to shared services involving only tenants in a particular building. However, neither principle nor technology require such a limitation. *fn54" Just as it is aggregating the demands of the tenants in a particular building, a Regional Company could as easily aggregate demand with respect to a group of buildings, a section of a city, certain types of businesses, or even among all subscribers to its central office switch. *fn55" Having done so, it could offer interexchange services to all such subscribers on the same basis as those services would initially be offered to tenants in one building.

 What would thus be likely to happen is that, in relatively short order, the Regional Companies would become the purchasers of interexchange services for all the telephone subscribers in their exchange areas, leaving to the interexchange carriers only the role of providers of leased facilities for integrated interexchange services marketed and offered by the Regional Companies.

 That this scenario is not an implausible one is demonstrated by Ameritech's own submission to the Court. In one of its memoranda, *fn56" Ameritech states:

 

Shared-services arrangements can also be provided for building complexes, such as a university campus or an office park. In addition, large individual businesses and institutions may have some of the same economies of scale and centralized management advantages as shared systems because of their heavy usage of telecommunications and related products and services. If desired by these individual customers, Ameritech would provide equivalent packages of products and services.

 Whatever one might think of the desirability of such an arrangement in the abstract, it is apparent that, given the historical experience with manipulation and discrimination by those in control of monopoly bottlenecks in the telecommunications market, it is not one to be repeated in slightly different form. See Part I, supra. In any event, such a development would be clearly violative of the decree.

 D. Marketing of Customer Premises Equipment

 As part of their arguments in support of the motion, the Regional Companies complain that, should they not be permitted to engage in the desired activities, they would have difficulty selling CPE, *fn57" a market from which they are not foreclosed by the decree. *fn58" For the reasons cited above, even if this were true, *fn59" it would be insufficient to override the direct prohibitions in the decree. But the CPE argument is not persuasive in any event.

 The most the Regional Companies could hope for in this context would be the striking by the Court of some kind of balance. On one side of that balance would be the assumed possibility that, because of their absence from the shared tenant services market, the Regional Companies would find it marginally more difficult to market some kinds of CPE. This difficulty, in turn, could in theory have two adverse effects: it could reduce the income and profits of these companies, and it could reduce competition in the CPE market.

 When these assumed effects are analyzed, however, they are seen to have little weight. Judged by any yardstick, the Regional Companies appear to be doing exceedingly well: their income, profits, and dividends have been rising steadily, and they are prospering probably beyond their own expectations -- certainly beyond the expectations of financial analysts who contemplated their future course at the time of the breakup. *fn60" The short of it is that the companies do not urgently need the additional income that could be generated by their entry into the prohibited markets.

 The second prong of the companies' argument is equally weak. The information services market is hardly a monopoly market: a number of corporations engage in this business, both large and small, and the entry of the Regional Companies is not needed to make it a competitive one.

 That is not to say that there would be no advantages flowing from the companies' entry into this market; but any such positive developments must be measured against the dangers. As elaborated on above, and as the several successful lawsuits against the old Bell System confirm, there is a serious danger that, when a company mixes both monopoly and competitive enterprises in closely related fields of business, the twin perils of discrimination and cross-subsidization are ever present. It is, of course, for that very reason that the decree prohibits such mixing (see Part I, supra) and for that reason, too, the CPE business may not be used as a springboard for opening the door to markets which are closed to the Regional Companies by the decree.

 For the reasons stated, the Court rejects the request that the decree be "clarified" to permit that which, absent a modification or a waiver, it plainly prohibits. The Ameritech motion will therefore be denied.

 III

 Exchange Telecommunications Outside Regions

 Three of the motions raise the same issue *fn61" -- whether the decree permits the Operating Companies to provide exchange telecommunications services outside their particular exchange areas. *fn62" While the immediate impetus for these requests is the interest of some of the Regional Companies in competing on a nationwide basis in the cellular radio market, the scope of the motions is far broader: it encompasses all exchange telecommunications services. *fn63" The Court holds that, absent a waiver, each Operating Company may under the decree provide exchange telecommunications services, including cellular radio services, only within its own exchange area.

 Section II(D) of the decree prohibits the Operating Companies from providing any product or service other than exchange telecommunications services and exchange access. *fn64" The Regional Companies subscribing to the motions argue *fn65" that the service they are proposing to perform constitutes exchange telecommunications, and that for purposes of the decree it is irrelevant that this service would be provided outside the exchange areas -- inherited by the particular Operating Companies by virtue of the decree. However, it is clear for a number of reasons that the Operating Companies were intended to be limited to their own local areas in furnishing exchange telecommunications services. *fn66"

 First. Section IV(G) of the decree defines the nature of the exchange areas as being strictly local by mandating their establishment in accordance with a number of criteria, all of them of a local character. *fn67" Under the same section, the responsibility for establishing each exchange area is that of the Operating Company servicing the particular area -- a provision that supports the conclusion that these companies were not intended to provide exchange services outside their own territorial limits. Likewise, section II(D)(3) of the decree authorizes the Operating Companies to provide, in addition to exchange telecommunications and exchange access service, other natural monopoly services "actually regulated by tariff," again indicating that the degree contemplates the provision by an Operating Company of services under that section only in the area in which it is regulated by tariff; i.e., its "home" area.

 Second. The parties' submissions and the Court's decisions with respect to the appropriate size of the exchange areas were based on factors relating solely to the status of the "home" Operating Company *fn68" -- a definitional process that would have been largely devoid of meaning if the Operating Companies had been intended to have nationwide reach with respect to exchange areas.

 Similar reasoning was applied to the Bell System's assets. To the extent that they were not awarded to AT&T, these assets were divided among the local companies on the basis of the principle that each Operating Company would provide telecommunications services only in the exchange areas in which it was the dominant telecommunications provider.

 Third. When describing the structural changes that would take place following the separation of the Operating Companies from AT&T, the Court stated in the Opinion which approved and explained the decree that "the geographic area for which these Operating Companies would provide local telephone service is defined in the proposed decree by a new unit, the 'exchange area'," *fn69" and in the Opinion which approved the Plan of Reorganization that "with respect to exchange telecommunications . . . the Operating Companies and the Regional Companies [are] by definition . . . limited to clearly defined geographic areas." *fn70" Further, in comparing the Bell System before divestiture to the telecommunications industry as it would exist after divestiture, the Court noted that:

 

The Bell System is a vast, vertically integrated company which dominates local telecommunications, intercity telecommunications, telecommunications research, and the production and marketing of equipment. Each of the divested Operating Companies will have a monopoly in only one geographic portion of one of these markets -- local telecommunications. *fn71"

 Fourth. The regional and local companies themselves have repeatedly espoused the view that the scope and character of their exchange operations were to be geographically limited. Thus, on May 25, 1983, the Associated Bell System Companies stated in a filing before the Federal Communications Commission that "none of the divested [Operating Companies or Regional Companies] will have control over exchange facilities on a broad national basis. No [Regional Company] will have more than regional ownership of such facilities . . . ." *fn72" Similar statements were made by individual Operating Companies, including a statement subscribed by several of them that "under the AT&T Plan of Reorganization (POR), approved by the Department of Justice and the Divestiture Court, the Bell System has been divided both geographically and functionally. Each divested BOC will serve a territory which is sharply confined." *fn73"

 The oft-repeated assertion of the local companies that they are geographically limited was adopted by the FCC in a Report and Order which stated that "at least with respect to the provision of exchange telecommunications services, exchange access and information service access, the [Regional Companies] will operate only within their own geographic territories. The [decree] does not prohibit the [Operating Companies] from offering CPE outside the geographic area in which they provide exchange telecommunications services." *fn74"

 In the face of the statements made to and by their federal regulatory body, the Court finds disingenuous the present claims of these companies: they have always clearly shared the understanding of the Court that, with respect to exchange services, they were to be strictly local entities, not national corporations providing such services everywhere.

 Fifth. Even arguments advanced here by the Regional Companies support this construction. Ameritech and others cite the fact that they are not limited to prescribed geographical territories with respect to the provision of directory advertising or customer premises equipment. *fn75" But these activities are permitted to the local companies on an unlimited geographic basis by an amendment of the consent decree. *fn76" Thus, the directory advertising and CPE marketing exemptions, rather than buttressing the position of the Regional Companies, undercut it: if a special amendment to the decree was required to allow them to engage in these enterprises on such a basis, they can hardly be deemed to be free to engage in other "outside" ventures without a similar amendment (or a waiver of the line of business restrictions). *fn77"

 Sixth. The local companies have reaped substantial benefits from the interpretations they now seek to disavow. For example, in denying the Department of Justice's motion for reconsideration of the Court's ruling permitting the Operating Companies to market customer premises equipment, the Court noted that these companies

 

will be relatively small, geographically dispersed corporations. They will be limited to a narrow range of products and services, . . . [and they] will also lack the ability to use various components and affiliates in the pursuit and concealment of anticompetitive conduct. *fn78"

 Seventh. The conclusion that the local companies may not engage in exchange telecommunications outside their own areas is also supported by policy underlying the decree. In order to maintain a stable and effective national telecommunications network, the local companies must work cooperatively in many areas. Together they play an important role in the support of national security and emergency preparedness functions, and they participate in the establishment of national network standards. *fn79" Competition among these companies with respect to exchange service could, and no doubt in short order would, reduce their incentive to cooperate in these vital areas and thus jeopardize both the quality of the services provided by the national telecommunications network as well as the national defense and emergency requirements of that network.

 Eighth. The Regional Companies argue at great length that their entry into the cellular markets on a nationwide scale would not be anticompetitive but would promote competition. *fn80" However, even without the involvement of the Operating Companies in each others' exchange telecommunications, competition may be expected to flourish in the exchange areas as technology and economics render such competition by independent, non-monopoly competitors feasible.

  In any event, to the extent that this argument has any validity, it should be made in support of an application for a waiver pursuant to section VIII(C) of the decree, not a request for clarification. This distinction is not a mere technicality. The grant of waivers may be conditioned by the Court upon provisions designed to protect competition. As applied to waiver applications for cellular operations, the Court might, for example, wish to explore the issue of the provision of "roaming" services to Regional Company customers *fn81" or the possibility that these companies could make use of the cellular footholds to construct national cellular service network or an official services networks, *fn82" and to attach appropriate conditions depending upon the results of the inquiry. If the decree were "clarified" to permit Regional Company entry into the cellular market on a nationwide scale, no such inquiries could be conducted and no necessary safeguards could be attached.

 The response of the Regional Companies that waiver proceedings are unnecessary because "there is no conceivable threat to competition," *fn83" that they "would unnecessarily preoccupy the Court and the parties," *fn84" and that the dangers are "speculative," *fn85" are unsatisfactory, for they assume what only such proceedings can supply: the answer to the question, in accordance with section VIII(C) of the decree, whether competition could be impeded by these companies in the market they seek to enter.

 For the reasons stated, the Court will not approve the "clarification" of the decree the Regional Companies request, *fn86" and the motions will be denied. *fn87"

  IV

 Voice Storage

 Ameritech *fn88" has also moved for an order declaring that the decree permits it to provide voice storage and retrieval features in conjunction with the provision of cellular radio services. *fn89" The issues presented by this motion are in some respects an amalgam of the questions discussed in Parts II and III above: as they do with respect to shared tenant services, the Regional Companies claim that they are not prohibited from engaging in the voice storage and retrieval business as such; and, as they assert with respect to the cellular services, they argue that they are free to provide voice storage and retrieval services outside their own regions.

 Section II(D)(1) of the decree unambiguously states that "no [Operating Company] shall, directly or through any affiliated enterprise . . . provide . . . information services." Information services are defined in section IV(J) as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information which may be conveyed via telecommunications . . . ." *fn90" As Ameritech itself has recognized *fn91" voice storage and retrieval services fall squarely within this definition. *fn92"

 Since voice storage is an information service, and since the Regional Companies are clearly prohibited from providing any information service, there is no basis for a clarification motion: no "clarification" of the decree could change those basic facts, and the motion could appropriately be denied on that basis alone.

 What Ameritech is really seeking, it would seem, is an order to remove the information restriction in section II(D). However, that result can be achieved only by a request for modification *fn93" which might require compliance with the standard established by such decisions as United States v. Armour & Co., 402 U.S. 673, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971), or by a motion for a waiver which makes the showing required by section VIII(C) -- a motion which Ameritech has chosen not to file.

 Notwithstanding these considerations, the Regional Companies contend that they may legitimately market voice storage and retrieval services without either a modification or a waiver because, as they see it, the "decree's information services prohibition was intended to apply to services provided over the operating companies' landline networks, not to services provided over competitive networks such as cellular radio." *fn94"

  The basis for the companies' conclusion is not clear. Certainly, it could not rest on language in the decree, for the language contains no such exception. Similarly, that conclusion could not have been derived from any expression of intent by the Court in the 1982 Opinion which explained the decree *fn95" or by the Department of Justice which performed a like service in its Competitive Impact Statement. Instead, the companies simply assert that the prohibition cannot be deemed to apply to the marketing of services in a competitive environment because the monopoly-competition dichotomy, so it is claimed, forms the basic structure of the decree. *fn96"

 That view of the decree is not only overly simplistic; it is quite wrong. The Regional Companies are not merely prohibited from providing certain types of services depending upon whether the services are in the monopoly or the competitive category; *fn97" they are prohibited from providing any product or service other than those which they are explicitly permitted to market. Since the time the consent decree was modified at the request of the Court, and since the time the Court granted a number of waivers to the Regional Companies, the conceptual neatness advocated at one time by the Department of Justice has disappeared. *fn98" The Regional Companies now legitimately engage in the monopoly services represented by exchange telecommunications and exchange access pursuant to the original consent decree; in the marketing of two competitive services (CPE and Yellow Pages) in accordance with the decree as modified at the request of the Court; and in the provision of a number of other competitive products and services as permitted pursuant to waivers granted by the Court.

 What does remain clear is that the Regional Companies may not provide any product or service -- other than those enumerated in sections II(D)(3), VIII(A) and VIII(B) -- unless they are authorized to do so by a modification of the decree or by a waiver pursuant to section VIII(C). No Regional Company is attempting in the current motions before the Court to avail itself of either of these remedies.

 Moreover, it is not at all certain that the Regional Companies could make the showing required by section VIII(C) with respect to voice storage and retrieval. As the Court has previously noted, *fn99" part of the reason for barring the Operating Companies from entry into the information services market was to allow competition to develop in that market without hindrance from monopolists. Although the cellular radio market may be competitive, each Operating Company retains a monopoly in its local exchange market, and the presence of these companies on a broad scale in a market closely related to that in which they retain such a monopoly raises some of the very concerns that led to the formulation and adoption of the decree. *fn100"

  Moreover, the generation of incentives to the Regional Companies to design their local networks in such a manner as to accommodate the maximum number of information service providers was one of the stated reasons for the imposition of the information services prohibition. *fn101" On this basis, as the Department of Justice correctly points out, *fn102" the decree's requirement that the Operating Companies provide nondiscriminatory information access applies equally to the activities of their cellular subsidiaries.

 As for Ameritech's concern that it would lose its cellular customers if it could not supply such a service, *fn103" it is no more persuasive than is the argument made in another motion that the Regional Companies will lose CPE market share if they are not also permitted to enter the shared tenant services business (see slip op. at pp. 30-33, supra). The decree simply does not contemplate that the Regional Companies may use claims of inability to compete *fn104" with respect to the services they are permitted to provide as levers for prying open markets that are prohibited to them. The Regional Companies' fear of loss of cellular customers is best alleviated by their design of their cellular systems to maximize access of voice storage providers to the cellular network, rather than by attempts to circumvent the decree's purpose through a "clarification" of section II(D)(1).

 Ameritech's final substantive argument *fn105" -- that the Regional Companies should be able to provide this service because AT&T is permitted to supply information services *fn106" -- is frivolous. AT&T no longer provides monopoly services *fn107" -- it is engaged in the competitive marketplace, and for that reason it is not subject to the restrictions which the decree imposes on the Operating Companies which continue to hold local telephone monopolies. *fn108" To seek to equate the present AT&T with the Regional Companies not only flies in the face of the language of the decree but also contradicts the thousands of words which have been written since that decree was issued -- by the Court, by the parties, by the Regional Companies themselves, and by numerous intervenors. Ameritech's attempt to equate the two situations thus serves only to highlight the fundamental flaws in its argument. See note 19, supra.

 For the reasons stated, it is this 13th day of January, 1986 ORDERED that all the motions be and they are hereby denied.


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