United States' Opposition to the Motion to Intervene of Eliot Spitzer, Attorney General of the State of New York

Date: 
Monday, July 24, 2006
Document Type: 
Motions and Memoranda - Miscellaneous
This document is available in three formats: this web page (for browsing content), PDF (comparable to original document formatting), and WordPerfect. To view the PDF you will need Acrobat Reader, which may be downloaded from the Adobe site. For an official signed copy, please contact the Antitrust Documents Group.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

SBC Communications, Inc. and
AT&T Corp.,

                  Defendants.


UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

Verizon Communications Inc. and
MCI, Inc.,

                  Defendants.


|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|         
Civil Action No.: 1:05CV02102 (EGS)

Civil Action No.: 1:05CV02103 (EGS)

UNITED STATES' OPPOSITION TO THE MOTION TO INTERVENE
OF ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK

The United States opposes the motion to intervene of Eliot Spitzer, Attorney General of the State of New York ("the NYAG"). Not only does the NYAG fail to meet the requirements for permissive intervention under Rule 24, it seeks intervention to contest issues that have nothing to do with those alleged in the United States' Complaints. Accordingly, its participation would not assist the Court in determining whether the proposed Final Judgments are in the public interest.


  1. Neither Intervention nor Other Further Participation by the NYAG Will Aid the Court in Determining Whether the Remedy Proposed by the United States Is in the Public Interest

The NYAG has already submitted a comment in this Tunney Act proceeding to which the United States has responded in detail.(1) Much of the NYAG's comment dealt with issues well beyond the scope of the Complaints. It now seeks to intervene to argue, and to introduce expert testimony, concerning "net neutrality" issues ­ issues that have nothing to do with the competitive problem relating to Local Private Lines alleged in the Complaints. Indeed, for this reason the proposed remedies do not purport to address "net neutrality."(2) Thus, neither participation by the NYAG, nor the testimony of its expert, will assist the Court in determining whether the proposed Final Judgments adequately address the alleged violations relating to Local Private Lines and fall within the reaches of the public interest.


  1. The NYAG Fails to Satisfy the Requirements of Rule 24 for Permissive Intervention

Like several other proposed intervenors, the NYAG seeks permissive intervention pursuant to Federal Rule of Civil Procedure 24(b)(1). But, as previously noted, that provision is inapplicable to intervention in a Tunney Act proceeding.(3) Rule 24(b)(2), which authorizes a court to grant intervention "when an applicant's claim or defense and the main action have a question of law or fact in common,"(4) is also inapplicable: the NYAG does not identify any "claim" or "defense," much less one with a "question in law or fact in common" with the main action.(5) Indeed, because the NYAG seeks to address Internet backbone and "net neutrality" issues, the questions raised by its filing are outside the scope of the issues in this proceeding.

Conclusion

For the foregoing reasons, the Court should deny the NYAG's motion.

    Respectfully submitted,
  _______________/s/________________
Laury E. Bobbish
Assistant Chief

_______________/s/________________
Claude F. Scott, Jr. (D.C. Bar No. 414906)
Lawrence M. Frankel (D.C. Bar No. 441532)
Jared A. Hughes
Trial Attorneys

Telecommunications & Media Section
Antitrust Division
U.S. Department of Justice
1401 H Street, N.W., Suite 8000
Washington, D.C. 20530
(202) 514-5621
Attorneys for the United States


CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of July, 2006, I caused a copy of the foregoing United States' Opposition to the Motion of Eliot Spitzer, Attorney General for the State of New York, to Intervene to be mailed, by U.S. mail, postage prepaid, to the attorneys listed below:

FOR DEFENDANT
SBC COMMUNICATIONS, INC.

Wm. Randolph Smith
Crowell & Moring LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

FOR DEFENDANT AT&T CORP.

David L. Lawson
Sidley Austin Brown & Wood LLP
1501 K Street, N.W.
Washington, D.C. 20005

FOR DEFENDANT
VERIZON COMMUNICATIONS INC.

John Thorne
Verizon Communications, Inc.
1515 North Courthouse Road
Arlington, Virginia 22201

FOR DEFENDANT MCI, INC.

Mark C. Hansen
Kellogg, Huber, Hansen, Todd, Evans
& Figel, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, DC 20036

FOR THE NATIONAL ASSOCIATION OF
STATE UTILITY CONSUMER
ADVOCATES

Kathleen F. O'Reilly
414 A Street S.E.
Washington, DC 20003

FOR SPRINT NEXTEL

Charles T. Kimmett
Harris, Wiltshire & Grannis LLP
1200 Eighteenth St., N.W.
12th Floor
Washington, DC 20036

FOR COMPTEL

Kevin R. Sullivan
King & Spalding LLP
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

FOR ACTEL

Gary L. Reback
Carr & Ferrell LLP
2200 Geng Road
Palo Alto, CA 94303

FOR AMERICAN ANTITRUST
INSTITUTE

Jonathan Rubin
1717 K St., N.W.
Suite 600
Washington, DC 20036

FOR NEW JERSEY DIVISION OF THE
RATEPAYER ADVOCATE

Christopher J. White
Deputy Ratepayer Advocate
Division of the Ratepayer Advocate
31 Clinton Street, 11th Floor
P.O. Box 46005
Newark, NJ 07101

FOR THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK

Jay L. Himes
Chief, Antitrust Bureau
Office of the Attorney General
120 Broadway
26C54
New York, NY 10271

  _______________/s/________________
Jared A. Hughes
Attorney
Telecommunications & Media Section
Antitrust Division
U.S. Department of Justice
City Center Building
1401 H Street, N.W., Suite 8000
Washington, D.C. 20530

FOOTNOTES

1. Plaintiff United States' Response to Public Comments at 44-49 ("Response to Public Comments"). The NYAG also filed comments with the New York Public Service Commission ("NYPSC") as part of the Verizon/MCI merger proceedings before that body. The NYPSC approved the Verizon/MCI merger, with certain conditions, in a 64-page order on November 22, 2005. Order Asserting Jurisdiction and Approving Merger Subject to Conditions, Joint Petition of Verizon Communications Inc. and MCI, Inc. for a Declaratory Ruling Disclaiming Jurisdiction Over or in the Alternative for Approval of Agreement and Plan of Merger, New York Public Service Comm'n, CASE 05-C-0237 (Nov. 22, 2005), available at http://www3.dps.state.ny.us/pscweb/WebFileRoom.nsf/
ArticlesByCategory/135BB9AA905F47A7852570C0005155BD/$File/05c0237_11_22_05.pdf.

2. As previously noted, the United States investigated Internet backbone issues and concluded that the evidence did not support filing a case alleging harm relating to Internet backbone. Response to Public Comments at 45. The FCC reached a similar conclusion. Memorandum Opinion and Order, In re SBC Communications Inc. and AT&T Corp. Applications for Approval of Transfer of Control, 20 F.C.C.R. 18,290, ¶ 108 (rel. Nov. 17, 2005); Memorandum Opinion and Order, In re Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, 20 F.C.C.R. 18,433, ¶ 109 (rel. Nov. 17, 2005). Of course, if the NYAG conducted its own investigation and reached a contrary conclusion, it could have filed its own case. It chose not to do so.

3. United States' Opposition to American Antitrust Institute Inc.'s Motion to Intervene at 5 n.16 (July 18, 2006).

4. Fed. R. Civ. P. 24(b)(2).

5. Although participation short of intervention is occasionally allowed in Tunney Act proceedings, intervention is routinely denied. See Memorandum of the United States in Opposition to COMPTEL's Motion for Leave to Intervene or in the Alternative to Participate as Amicus Curiae at 10 n.10 (Feb. 22, 2006).

Attachments: 
Updated June 30, 2015