The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, United States District Judge.
On March 7, 1988, the Court detailed the manner and extent to which the Regional Companies are to be allowed to engage in the provision of information services under the terms of the consent decree. United States v. Western Electric Co., C.A. No. 82-0192, slip op. (D.D.C. March 7, 1988) (hereinafter Opinion). Currently before the Court are motions to amend judgment pursuant to Federal Rule of Civil Procedure 59(e)
and for clarification
of that ruling.
Rule 59(e) of the Federal Rules of Civil Procedure is designed to allow courts to correct errors of fact appearing on the face of the record or errors of law, but the movant "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986). A Rule 59(e) motion cannot be used as a vehicle to relitigate matters already argued and disposed of. See Windsor v. A Federal Executive Agency, 614 F. Supp. 1255, 1264 (M.D. Tenn. 1983), aff'd, 767 F.2d 923 (6th Cir. 1985). In the Court's view, none of the motions before the Court meets this standard, or for that matter any applicable standard,
and they will all therefore be denied.
Limited intervenor Phone Programs Inc. (PPI) moves for reconsideration of the Court's ruling regarding revenue sharing, arguing that "by their nature, the [Regional Companies'] revenue sharing arrangements are anticompetitive and discriminatory." PPI Memorandum at 2. PPI concedes that its contentions have been squarely before the Court since its initial comments were filed in March 1987, id. at 8, but contends that the Court must have overlooked those filings when reaching a decision on the revenue sharing question. PPI's position on revenue sharing is no secret to this Court.
The Court did not, as PPI suggests, overlook PPI's previous filings, but rather found that, in the context of the totality of the information before the Court, its position was not relevant to the issues and not persuasive.
At any rate, PPI's argument misconstrues the substance of the Court's ruling. The Court did not grant a blanket endorsement of "976"-like revenue sharing proposals; it merely noted that the kiosk billing system, as employed by Teletel, "is in many ways comparable to billing arrangements currently used by the Regional Companies for '976' services." Nor did the Court rescind its earlier prohibition against arrangements that provide for the sharing of revenue. See United States v. Western Electric Co., 673 F. Supp. 525, 594 (D.D.C. 1987). The only ruling entered by the Court in regard to billing arrangements is that kiosk-type billing arrangements would not be considered to "necessarily involve harmful revenue sharing agreements" and thus to be per se prohibited. Opinion at 45-46.
As the Court has previously stated, the Regional Companies will be allowed to bill on any basis, provided that the billing method is not discriminatory in any way. Opinion at 46. However, the Court did not, and does not intend to, rule on the merits of a hypothetically possible billing arrangement; such a ruling would be premature and in contravention of the judicial policy against deciding controversies not presented in a concrete factual setting. Should a Regional Company embrace a billing system appearing to be discriminatory, enforcement proceedings may be initiated and, if necessary, sanctions imposed. See Opinion at 51, n.69 and accompanying text.
CompuServe Incorporated, also a limited intervenor in these proceedings, moves pursuant to Rule 59(e) to amend the Court's ruling on the Regional Companies' ability to provide unrestricted storage capability for databases created by others and to provide electronic mail service.
First, as to Regional Company ability to provide unrestricted storage capacity, CompuServe complains that this aspect of the Opinion "constitutes a substantial departure from the concept of a 'gateway' infrastructure enunciated in the September 10 Opinion," CompuServe Memorandum at 6, presumably because storage capacity was not specifically identified therein as one of the five gateway functions performed by the French system. However, the Court's failure to list, in its preliminary ruling, storage capacity as a potential gateway service is immaterial to the issue at hand. After reviewing the submissions of countless commentors, and specifically considering the objection that "these are not functions 'necessary' to a gateway," Opinion at 58-61, the Court made a determination in compliance with section VIII(C) of the consent decree that there is no significant potential for discriminatory behavior in the market for database storage. Id. at 55-56. It was on that basis that Regional Company participation in the data storage market was approved.
More substantively, CompuServe argues that the Regional Companies should be prohibited from providing storage because database owners seeking storage generally ask the storage provider also to perform functions that in CompuServe's view involve the manipulation and creation of content. CompuServe Memorandum at 9. CompuServe apparently believes this to be so because of the role it plays as a systems operator and the services it offers to owners purchasing storage space. Id. However, the mere fact that CompuServe, an unregulated information services provider, engages in content manipulation in conjunction with storage, proves very little. The Regional Companies remain bound by the Court's ban against engaging in activities which involve the manipulation or generation of content. See Opinion at 2 & n.93. This ban extends to their activities performed as storage providers, a fact acknowledged by the Regional Companies in their responses to CompuServe's Motion.
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 ...