S. 911 (1990) (citations and quotations omitted; importance for the totally new)

S. 911 (1990) (citations and quotations omitted; importance for the totally new)

Finally, prior submissions to the Court have emphasized that in assessing whether the decree is in the «public interest» under Section 16(e), the Court should not «determine whether the resulting array of rights and liabilities is the one that will finest serve society, but only to confirm that the resulting settlement is within the has reached of the public interest.» You v. West Electric Co., 900 F.2d 283, 309 (D. 1990), cert. rejected, 498 U. This standard clearly is correct. but the parties’ further assertion — that the submissions already made by the Department are sufficient to satisfy this standard — equally clearly is not.

C. Cir

A comparison of the information provided in those cases relied upon by the Department, with that provided here, highlights just how far short the Department has fallen in providing this Court with an adequate record upon which to act. For example, the Department relies heavily upon the Court of Appeals’ decision affirming a modification of the consent decree in All of us v. West Digital Co., Inc., 993 F.2d at 1572. Find 59 Fed. Reg. at 59,429. 24 However, in finding that there was a sufficient «factual foundation for the judgment call made by the Department of Justice and to make its conclusion reasonable,» 993 F. 2d at 1582, the Court of Appeals in that case expressly pointed to the «array of prominent economists (including two Nobel laureates, Stigler and Arrow),» who had submitted affidavits in the record that supported the Department’s position. These affidavits provided detailed support for the factual predicates underlying the Department’s proposal, including the view that the Bell operating companies would not be able to discriminate or engage in cross-subsidization: that government oversight would be effective in regulating their behavior; and that the proposal would enhance competition in the relevant markets. Select id. at 1578-82.

This Court, by contrast, has not been provided with the affidavit of any economist, or for that matter of anyone else, that would provide a factual predicate for any of the matters that it must decide in reviewing the adequacy of the proposed decree. The Department has provided no factual basis (other than its say-so) for believing that the remedies proposed in the decree would be sufficient to «pry open to competition» the operating systems market, ATT, 552 F. at 150; that Microsoft’s other anticompetitive practices (undocumented calls, predatory preannouncements, anticompetitive bundling and unbundling, early disclosure to Microsoft applications programmers) will not undermine the effectiveness of the decree; and so forth. Although this case involves an industry of unquestioned significance to the future of the American economy — one of comparable importance to ATT itself — the Department has in fact given this Court nothing to go on other than the purest ipse dixit. Indeed, it is hard to imagine how the Department could claim that its request for approval of the ounts to anything but a request for a «rubber stamp» when it has so notably failed to say anything other than «trust us.»


Nor does the Department’s submission compare favorably with the information available to other courts in cases cited by the Department. In Gillette, for example, which first formulated the «reaches of the public interest» standard, pick 406 F. at 716, Judge Aldrich concluded that he was able to make an independent determination regarding the adequacy of the proposed decree because «the record [in the case] is both open and extensive.» Id. at 715. Here, the record is neither. Indeed, the transcripts of the hearings on September 29, 1994 and November 2, 1994 are replete with inquiries by the Court regarding matters inextricably tied to the adequacy of the proposed remedy — inquiries that repeatedly failed to yield any information at all, or (even worse) information that is at odds with the record.

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