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UNITED STATES v. WESTERN ELEC. CO.

December 3, 1987

United States of America, Plaintiff,
v.
Western Electric Company, et al., Defendants



The opinion of the court was delivered by: GREENE

 Pending before the Court are (1) questions regarding the meaning of the term "manufacture" in section II(D)(2) of the decree, and (2) issues relating to enforcement of the decree.

 I

 Background

 In April of 1985, *fn1" AT&T *fn2" filed with the Department of Justice requests for enforcement of the decree's prohibition on Regional Company manufacturing of telecommunications equipment and customer premises equipment. *fn3" For more than two years, the Department did not respond to the requests; it did not take enforcement action; and it did not inform the Court that the requests had been made. See infra. Earlier this year, the Court was advised by a number of different parties that the Department had failed to take steps to remedy various alleged violations of the decree, including violations of the restriction on manufacturing. *fn4" The Court thereupon issued an order, on May 18, 1987, requesting the Department to respond to these complaints, and the Department's Response thereafter for the first time brought its position on the manufacturing controversy to the attention of the Court. *fn5"

 On June 19, 1987, following the May 27 revelations, AT&T filed with the Court a motion for a declaratory ruling regarding the meaning of the term "manufacture" in section II(D)(2) of the decree, advising it of the Department's inaction. *fn6" The Department responded on August 21, 1987 *fn7" and, at or about the same time, most of the Regional Companies submitted their own memoranda with the Court. *fn8" On September 10, 1987, AT&T filed a reply to the various responses and oppositions to its motion. The Court is thus now called upon to rule on the meaning of the term "manufacture" in section II(D)(2) of the decree. *fn9"

 II

 Failure of Department of Justice to Act

 A. Past Practice

 Before proceeding to a consideration of the substantive issues raised by the AT&T motion, it is appropriate, in response to AT&T's vigorous complaints and those of others (e.g., IDCMA and NATA), to consider the failure of the Department of Justice to take enforcement action for well over two years after receipt of requests therefor. During that period, the Department came to accept the view that the definition of the term "manufacture" presents a difficult issue, and that the best course of action therefore was to halt enforcement until the Department's triennial report was due in court in the spring of 1987, and, in connection therewith, a report by the Department's consultant, Dr. Peter Huber. At that time, according to the Department, it might be appropriate for the Court to repeal the manufacturing restriction *fn10" and the problem would thus be mooted. *fn11" There are several faulty assumptions underlying that line of reasoning.

 First, as discussed infra, the question as to the meaning of the term "manufacture" is not as difficult as the Department believes it to be. Rather, it represents a fairly straightforward legal issue subject to resolution by reference in the usual way to the language of the decree and the purposes underlying it.

 Second, even if the issue were difficult, that would not constitute an adequate justification for a decision not to resolve it or to fail to enforce the underlying decree provision. Few issues that arise in litigation have only a single obvious, non-controversial answer, whether it be in suits at common law or in the enforcement of statutes or court judgments. If the difficulty of the issues were grounds for avoiding action, let alone for repealing the problematic text, the enforcement of the law, civil or criminal, statutory or embodied in judgments, would shrink drastically. *fn12" Much of the Internal Revenue Code, for one, might not be enforced at all.

 Third, at a minimum, the alleged difficulty of the questions is not grounds for a failure to notify those requesting enforcement, the court which had entered the decree, or both, that no action was being taken, thus denying them the opportunity to make their own judgments as to the next step, if any. *fn13"

 Fourth, there was no valid basis in 1985 for tying the decisionmaking process to the 1987 triennial review of the decree. If such a relationship were to be considered appropriate, enforcement of the decree, at least with respect to the more "difficult" issues, would proceed only in one year out of every three, the remaining two years being reserved for contemplation of the probable effects of the next triennial review. *fn14" In short, the ...


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