Court failed to undertake a proper evaluation of the electronic mail market. Whatever the stated grounds for the motion, a close reading reveals that, as several parties have pointed out, it represents nothing more than the post-judgment plea of a disappointed party seeking reconsideration of its basic case.
The Court has held that, while electronic mail may technically and incidentally involve the manipulation of content, the nature of that manipulation is such that for practical purposes the stored information reaches the intended recipient in the same content form as it was in when it was delivered. Opinion at 57 n.84. Having considered the electronic mail market
as well as the specifics of electronic mail services, as described in filings before the Court,
the Court continues to be of the view that this was a correct analysis. Accordingly, Regional Company provision of electronic mail services was and is approved as an exception to the general ban on the prohibition of their involvement in activities implicating content manipulation. Id. at 65.
Digital Directory Assistance, Inc. seeks an amendment of the Court's ruling to clarify the scope of new section VIII(K)(3) of the consent decree
and the general nondiscrimination requirements referenced throughout the Opinion. DDA urges the Court to "state explicitly that discrimination [against competing 'White Pages' providers] is prohibited," DDA Motion at 5, and to identify more specifically the Regional Companies' obligations to competing information services providers, "particularly with respect to those types of permissible electronic 'White Pages' directory services which have a potential for competition." DDA Motion at 5-6.
The Court has stated again and again that the Regional Companies may not discriminate against their competitors, and that is still a basic requirement of the decree. As for the strenuous advocacy by various intervenors of the imposition of detailed procedural safeguards on the Regional Companies as a mechanism for preventing anticompetitive behavior, the Court has declined to adopt such an approach. See Opinion at 47-51. Indeed, the failure to outline specific procedural obligations with respect to "White Pages" was not an oversight, but rather a conscious determination made on the basis of the overall record. No new reason has been advanced why the Court should at this juncture revisit the question, particularly as it has previously considered and rejected the substantive arguments presented by DDA's Motion.
The Florida Public Service Commission requests clarification as to the nature of protocol conversion services approved by the Court, finding an incongruity between statements made on the subject in the Court's September 10, 1987 and March 7, 1988 Opinions. Although no other party or intervenor has noted any ambiguity,
the Court will reiterate its position on the matter.
The goal of a workable gateway, and consequently, effective protocol conversion, is to allow ready communication among the broadest and most disparate array of computer terminals. Opinion at 46. Protocol conversion will in many instances necessarily involve a limited level of modification to the format of the message to be delivered via the network. To the extent that the alteration of the message is limited to the conversion of the signal used for transmission from that used by the sender to one comprehensible to the receiver, no "content manipulation" will be deemed to have occurred. The Court has also ratified forms of protocol conversion in which changes in message format are not apparent to system users.
Any form of protocol conversion which exceeds the scope of this transparency-oriented definition will of course continue to be prohibited.
Although not filed as a motion, MCI has asked the Court to clarify that the information services Regional Companies may offer must be strictly intra-LATA. See MCI Response to CompuServe Motion, April 20, 1988.
Clearly, the Court did not modify the interexchange prohibition of the decree when it allowed Regional Company participation in the transmission of information services. To the contrary, in the very Opinion announcing the removal of the decree restriction on transmission of information services, the Court held that "there is no basis under the decree for the removal of any of the restrictions on interexchange services." United States v. Western Electric Co., 673 F. Supp. 525, 552 (D.D.C. 1987). While there does not appear to be any confusion on this point, either by the Regional Companies
or by competing interexchange carriers,
MCI seeks to obtain a ruling on the parameters of Regional Company ability to serve subscribers in one LATA from central locations in another LATA.
The impetus for this request was apparently provided by statements made by Bell Atlantic and US West that placing a gateway facility in each LATA would create inefficiencies, particularly for those Regional Companies serving vast and largely rural territory. US West Answer at 1-2; Bell Atlantic Response at 3. These Regional Companies have accordingly proposed serving subscribers in one LATA from a gateway established in another LATA, placing only a packet assembler/dissembler (PAD)
at the local switching facility. This arrangement, they argue, does not involve provision of interexchange services, but rather entails inter-computer communications allowing the PAD to acquire the initial menu, help functions and routing information from a centralized location.
US West Reply at 3. The Regional Companies guarantee that, once the PAD determines the instructions necessary to connect the subscriber with the Information Services Provider (ISP) he wishes to reach, any interexchange portion of the connection between the subscriber's premises and the ISP will be provided in its entirety by the interexchange carrier selected by the ISP. Id.
The outcome of this debate is at the moment tied to the characterization of the technical operations used to connect the subscriber to the network. If a subscriber is considered to have accessed the gateway upon achieving contact with the PAD, there would by definition be no inter-LATA transmission and the Regional Companies could provide the service. On the other hand, if access to the network is found to occur only when the subscriber interacts with the gateway functions, stored in another LATA, an inter-LATA communication will have occurred, and MCI may well be correct in arguing that the Regional Companies would therefore be providing interexchange service in violation of the decree.
This controversy has emerged for the first time in the context of motions for amendment of judgment pursuant to Fed. R. Civ. P. 59(e), a most improper forum for a dispute of this nature. MCI has failed to show either a "manifest error of law or fact" or newly discovered evidence of the type required for application of Rule 59(e).
Furthermore, if the Court were to address this question in the form presented, it would be required to rule on what might turn out to be a close question without the benefit of a concrete factual record, a fully briefed round of comments from the parties and intervenors, or the recommendation of the Department of Justice. It may well be that resolution of this matter will ultimately require intervention by the Court. However, if and when that intervention becomes necessary, consideration of the issues should and will be undertaken in an orderly fashion and under the procedures previously established for adjudication of questions relating to the consent decree.
A memorandum subscribed by a number of respected public interest organizations
has suggested to the Court that it has been too lenient in allowing the various parties and intervenors to file comments, responses, further discussions, replies, and the like, often out of time, and that these submissions have then generated further rounds of submissions, to an inordinate extent. Says the memorandum filed by the National Consumers League, et al. (at pp. 2-5):
Since the Court's March 7, 1988 decision, only three post-judgement [sic] motions have been submitted in a timely fashion . . . If these were the only requests, the issues might now be ready for decision. But subsequently, and under the guise of "responses" to the above motions, three separate additional requests for reconsideration or clarification were submitted [one of which] contains a new request for clarification with respect to the potential for interLATA electronic mail services [and that, in turn] is likely to prompt an onslaught of responses, and that each response itself will prompt a further reply, etc., ad nauseam. . . .
The Court has clearly challenged the industry, and the Regional Companies specifically, to perform to the level of their promises made throughout this proceeding to bring information age services to the residential, non-profit, and small business users. Most of the Regional Companies have announced intentions to move rapidly into the audio and videotex markets, some announcing intentions to establish tests and services in 1988. It is time to put the companies to the test.