IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

United States of America,	)

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

Plaintiff,	)

)

v.	)

)

SBC Communications, Inc. and	)

AT&T Corp.,	)

)

Defendants.	)

)

)

United States of America,	)

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

Plaintiff,	)

)

v.	)

)

Verizon Communications Inc. and	)

MCI, Inc.,	)

)

Defendants.	)

)

UNITED STATES' OPPOSITION TO THE MOTIONS TO INTERVENE BY THE NATIONAL ASSOCIATION OF STATE UTILITY CONSUMER ADVOCATES AND NEW JERSEY DIVISION OF THE RATEPAYER ADVOCATE

The United States opposes the motions to intervene of the National Association of State Utility Consumer Advocates ("NASUCA") and the New Jersey Division of the Ratepayer Advocate ("NJRPA"). Participation in this proceeding by NASUCA and NJRPA will not assist the Court in determining whether the proposed Final Judgments are in the public interest because their concerns lie with issues not before the Court. Moreover, even if the movants could provide assistance, intervention is improper as neither group satisfies the requirements of Rule 24.1

I.	Participation by NASUCA or NJRPA in These Proceedings Is Not Necessary for the Court to Determine Whether the Remedy Proposed by the United States Adequately Addresses the Competitive Problem Alleged in the Complaints

NASUCA, an association of state government consumer advocates, and NJRPA, a division of a New Jersey state agency, have moved to intervene to assist the Court in "assessing the impact of the two recent mergers on mass market customers and on the public interest."2 Neither topic is before the Court. What is before the Court is whether the proposed consent judgments remedy the harms (reduction in competition in Local Private Lines) alleged in the complaints sufficiently and without creating additional harm such that entry of those judgments would be in the public interest.3 NASUCA and NJRPA instead seek to convince this Court that the United States should have brought a broader case – one alleging competitive harm in the "mass market," i.e., residential and small business customers4 – and should do more to address those concerns in the proposed AT&T/BellSouth merger,5 which is still pending and is not before any court. NASUCA and NJRPA urge the Court to impose additional conditions on the mergers6 to remedy what they allege would be a loss of competition in mass market.7 This is neither the time8 nor place for NASUCA and NJRPA to be presenting arguments or evidence about mass market issues that are beyond the scope of the discrete Local Private Line issues before this Court.

To support their concerns about mass market and the public interest, NASUCA and NJRPA attached to their filings materials they filed with the FCC, and, in the case of NJRPA, with the New Jersey Board of Public Utilities ("NJBPU"), during those agencies' reviews of the SBC/AT&T and Verizon/MCI mergers, as well as new comments on the proposed AT&T/BellSouth merger. While harms of the sort NASUCA and NJRPA allege are a serious matter,9 these attachments will not assist this Court because they address the wrong questions.10

II.	NASUCA and NJRPA Do Not Meet Rule 24's Requirements for Permissive Intervention

NASUCA and NJRPA each seek permissive intervention. Neither offers any explanation why their intervention is appropriate. Each cites only Federal Rule of Civil Procedure 24(b)(1),11 which authorizes a court to permit intervention "when a statute of the United States confers a conditional right to intervene,"12 but the Tunney Act confers no such right,13 so Rule 24(b)(1) is inapplicable. 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,"14 is also inapplicable: neither NASUCA nor NJRPA has any "claim" or "defense," much less one with a "question in law or fact in common" with the main action.15

Conclusion

This Tunney Act proceeding will determine whether the remedy negotiated by the parties and presented to the Court adequately resolves the harm alleged in the Complaints, and does so in a way that does not positively injure third parties. The United States respectfully submits that the record before the Court is sufficient to conclude that the proposed Final Judgments adequately address the alleged violation and fall within the reaches of the public interest. Regardless, however, intervention or other further participation by third parties, particularly ones whose concerns have little relationship to those alleged in the Complaints, is neither necessary nor justified. Accordingly, the Court should deny the NASUCA and NJRPA motions.

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

Telecom & 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 Motions to Intervene by the National Association of State Utility Consumer Advocates and New Jersey Division of the Ratepayer Advocate 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 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 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 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