IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)	Judge: Emmet G. Sullivan

United States of America,	)	Date Filed: October 16, 2006

)	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 ACTel's MOTION FOR LEAVE

TO SUPPLEMENT RECORD

The United States opposes ACTel's Motion for Leave to Supplement Record, as its proposed supplemental pleading adds nothing of substance. While acknowledging that "this Court is without authority to review the BellSouth acquisition,"1 ACTel here uses the Department of Justice's decision not to challenge the AT&T-BellSouth merger to raise yet again a laundry list of arguments that have been shown to be baseless in the extensive briefing to date.2

The Department of Justice evaluates each merger on its own merits. After conducting a thorough investigation of the AT&T-BellSouth merger, the Department announced, in a time frame consistent with its statutory obligations, that it had not found a basis upon which to challenge that merger.3 The Department of Justice's exercise of its prosecutorial discretion in not challenging that merger has no relevance to the question actually before the Court – whether entry of the proposed Final Judgments serves the public interest.

ACTel's proposed supplemental pleading adds nothing that would assist the Court in making its public interest determination. Rather, ACTel continues to argue that the government has adopted "new merger review criteria" that "will dramatically change antitrust enforcement" and asks the Court to send a message that this "new" approach does not meet the public interest standard.4 As demonstrated in earlier pleadings, there are no such "new criteria" for merger review.5 But the issue before the Court is not whether the Department has appropriately exercised its prosecutorial discretion in these cases, or any other case, but whether it would be in the public interest to enter the judgments that will require AT&T and Verizon to divest the assets in question so that they can be used by other companies to offer competition where it would otherwise be lost.

Conclusion

For the foregoing reasons, ACTel's Motion for Leave to Supplement Record should be denied.

Respectfully submitted,

/s/

Laury E. Bobbish

Assistant Chief

/s/

Claude F. Scott, Jr. (D.C. Bar No. 414906)

Jared A. Hughes

Trial Attorneys

Telecommunications and 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

Dated: October 16, 2006