U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

87–867 PDF 2003

S. HRG. 107–942

OVERSIGHT OF ENFORCEMENT OF THE

ANTITRUST LAWS

HEARING

BEFORE THE

SUBCOMMITTEE ON ANTITRUST, 

BUSINESS RIGHTS, AND COMPETITION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

SEPTEMBER 19, 2002

Serial No. J–107–103

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON ANTITRUST, BUSINESS RIGHTS, AND COMPETITION

HERBERT KOHL, Wisconsin, Chairman 

PATRICK J. LEAHY, Vermont 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

MIKE DEWINE, Ohio 

ORRIN G. HATCH, Utah 

ARLEN SPECTER, Pennsylvania 

STROM THURMOND, South Carolina 

SAM BROWNBACK, Kansas 

VICTORIA BASSETTI, Majority Chief Counsel 

PETER LEVITAS, Minority Chief Counsel 

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 3

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 144

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 171

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 11

WITNESSES 

James, Charles A., Assistant Attorney General, Antitrust Division, Department of Justice, Washington, D.C. ..................................................................... 4

Muris, Hon. Timothy, Chairman, Federal Trade Commission, Washington, 

D.C. ........................................................................................................................ 6

QUESTIONS AND ANSWERS 

Responses of Timothy Muris to questions submitted by Senator DeWine ......... 29

Responses of Timothy Muris to questions submitted by Senator Kohl ............... 46

Responses of Charles James to questions submitted by Senators Kohl, 

DeWine, Feinstein, and Cantwell ....................................................................... 52

SUBMISSIONS FOR THE RECORD 

Air Carrier Association of America, Edward P. Faberman, Executive Director, 

Washington, D.C., statement .............................................................................. 80

American Antitrust Institute, Albert A. Foer, Predident, Washington, D.C., 

statement .............................................................................................................. 93

American Bar Association, Roxane C. Busey, Chair, Section of Antitrust Law, 

Washington, D.C., statement .............................................................................. 109

Broadband Service Providers Association, comments .......................................... 120

Federal Trade Commission, Washington, D.C., statement .................................. 124

James, Hon. Charles A., Assistant Attorney General, Antitrust Division, Department of Justice, Washington, D.C., prepared statement ........................... 147

Renewable Fuels Association, Bob Dinneen, President, Washington, D.C., letter and attachment .............................................................................................. 173

(1)

OVERSIGHT OF ENFORCEMENT OF THE 

ANTITRUST LAWS 

THURSDAY, SEPTEMBER 19, 2002

U.S. SENATE, SUBCOMMITTEE ON ANTITRUST, COMPETITION, BUSINESS AND CONSUMER RIGHTS, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 1:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Herb Kohl, Chairman of the Subcommittee, presiding. 

Present: Senators Kohl, DeWine, and Specter. 

OPENING STATEMENT OF HON. HERBERT KOHL, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman KOHL. We meet today to hear from the heads of two 

agencies charged with the important responsibility of enforcing our 

Nation’s antitrust laws—the Justice Department’s Antitrust Division and the Federal Trade Commission. 

Much has happened to the Nation’s economy since our Subcommittee last met for an oversight hearing more than 2 years ago. 

We have seen sharp declines in the stock market, scandals affecting the leaders in the board rooms at some of our largest and our 

most prestigious corporations, and continued consolidation in many 

key sectors of the economy, including media, telecommunications, 

pharmaceuticals, aviation, oil and gas, and computer manufacturing. 

These challenging economic times make vigorous enforcement of 

our antitrust laws all the more essential. In recent years, we have 

witnessed an incredible wave of mergers and acquisitions, touching 

virtually every sector of the economy. 

In the decade from 1991 to 2001, the value of mergers and acquisitions reviewed by the antitrust agencies increased more than 6 

times, from $169 billion to more than $1 trillion. And application 

of antitrust laws is not limited to corporate mergers. In industries 

as varied as computer software, aviation, and health care, the antitrust agencies have had to be a vigilant watchdog to ensure that 

the antitrust laws are properly enforced to prevent companies from 

stifling competition and harming consumers. 

Given the merger wave of the last decade and the corporate scandals of the last year, this is not the time to be lax about enforcing 

antitrust laws. We will be watching closely to see how your two 

agencies respond to these challenges in the years ahead, Mr. James 

and Chairman Muris. 

2

We are especially pleased, Chairman Muris, with the emphasis 

that you are placing in antitrust enforcement in the health care 

sector. However, we have heard a growing sense of unease about 

the direction of the Antitrust Division in the last year, Mr. James. 

The sense of skepticism about the Division’s activity is founded 

on several things, from a decline in actions taken by the Division, 

to the high-profile Microsoft settlement, to the consolidation trend 

in media, cable, telecom, and airlines, to name a few industries, 

that seems to be meeting little, if any, resistance from the Antitrust Division. 

Observers have noted a sharp decline in the Division’s enforcement activity. While we recognize that the number of mergers and 

acquisitions reported to the Antitrust Division has also diminished 

in the last couple of years, this decline includes a significant drop 

in the Division’s activities in civil, non-merger, and criminal enforcement. 

The Microsoft settlement is also dismaying. The settlement contains so many loopholes, qualifications and exceptions that many 

worry that Microsoft will easily be able to evade its provisions, and 

it leaves many in doubt that competition will truly be restored to 

the computer software market. By this action, has the Antitrust Division squandered its golden opportunity to ensure a competitive 

software industry, a result for which consumers will be paying a 

high price for years to come? 

The reorganization of the Antitrust Division and streamlining of 

the merger review process have also raised concerns. Does the 

elimination of the Civil Task Force signal a diminishment of the 

importance of non-merger civil enforcement? Will the elimination of 

the Health Care Task Force result in a loss of expertise to pursue 

health care matters? In general, does the decline in Antitrust Division activity and the internal reorganization mean an end to the 

era of strong antitrust enforcement of the last decade? Of course, 

we hope not. 

My own view is that vigorous and aggressive enforcement of our 

Nation’s antitrust laws is essential to ensuring that consumers pay 

the lowest possible prices and gain the highest-quality goods and 

services. In this era of ever-quicker technological change and everincreasing corporate consolidation, the need for vigorous enforcement of our antitrust laws has never been greater. We are committed to ensuring that your agencies have the necessary resources 

to do a good job. 

The weeks and months ahead will be a crucial time for the antitrust agencies, with decisions expected in major mergers such as 

Echostar/DirecTV and Comcast/AT&T at the Antitrust Division, 

and with the FTC engaged in several important health care 

projects, including its work undertaken at our request to investigate allegations of anti-competitive practices in the hospital group 

purchasing industry. 

We will be monitoring your agencies carefully, Mr. James and 

Chairman Muris, as you carry out your vital responsibilities on behalf of American consumers. 

Let me turn now to my Ranking Member and good friend, Mr. 

DeWine. 

3

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, thank you very much. I want 

to thank you for holding this very important hearing and thank 

you for the leadership that you have provided as chairman of this 

Antitrust Subcommittee. I want to commend you again for the bipartisan way in which this Subcommittee has operated. 

Over the years, we have agreed on many issues and I suppose 

we have disagreed on some, but this Subcommittee has been productive. It has been productive because we have always been able 

to work very closely together. So I look forward to continuing that 

work. 

Before I get to the rest of my statement, I would like to thank 

the chairman and our witnesses for their flexibility in scheduling 

today’s hearing and moving the time up. I am going to leave shortly to attend an Intelligence Committee hearing that is looking into 

the aftermath of September 11 and trying to determine where this 

country needs to go in the future in regard to our intelligence system. But I did want to be here to give a brief statement because 

vigorous antitrust enforcement is a critical part of our economic 

system, and oversight is a key responsibility of this Subcommittee. 

We are pleased to welcome Assistant Attorney General James 

and Chairman Muris, of the Federal Trade Commission, to the 

hearing today. I appreciate the leadership that you both have provided to your respective agencies and I look forward to continuing 

our work together, as we have worked with the Antitrust Division 

and the FTC in the past. 

This oversight hearing is taking place in a different economic environment than we had at our last oversight hearing. In fact, ever 

since Senator Kohl and I began serving on the Antitrust Subcommittee back in 1997, the economy had been in the midst of a 

tremendous wave of mergers and consolidations. However, today, 

that wave has at least to some extent abated. 

Nonetheless, as Senator Kohl has stated, vigorous antitrust enforcement remains vitally important to creating and maintaining a 

competitive environment that will benefit our economy. In fact, in 

these times of corporate scandal and economic uncertainty, it is 

even more important that companies compete vigorously, effectively, and fairly. 

The Antitrust Division and the FTC are, of course, essential to 

making sure that happens, and I join Senator Kohl in urging both 

agencies to continue actively enforcing our antitrust laws—something that I know both of you agree is very important. 

I would like to briefly address two issues that I feel are particularly important. The first is the ongoing consolidation that we continue to see in the entertainment, news, and media industries. I 

have in the past expressed concern about concentration in these industries, and I remain today concerned. 

This concentration raises particularly important public policy 

questions that frankly go well beyond the traditional antitrust 

analysis. The consolidation in the entertainment, news, and media 

industries has left more and more voices under the control of fewer 

and fewer media owners. This leaves citizens with fewer sources of 

the information and news that are necessary in a vibrant and open 

4

marketplace of ideas. Senator Kohl and I are planning to hold a 

hearing to examine this issue, probably early next year, and I look 

forward to working on this important issue in our Subcommittee. 

My second area of concern is in the area of civil, non-merger enforcement. I think that as we have seen a decline in the number 

of mergers, we are seeing an increasing number of firms turning 

to joint ventures or other joint conduct instead. While such arrangements differ from full-fledged mergers, they often have significant competitive impact and require similar vigorous scrutiny 

from the antitrust agencies. 

Since these arrangements do not fall under the auspices of the 

Hart-Scott-Rodino Act, the agencies are not required to examine 

them under the statutory merger time lines. But despite the lack 

of statutory time lines, it is important that the agencies review 

these arrangements within reasonable time periods, without, of 

course, sacrificing careful, thorough, economically sound analysis. 

Mr. Chairman, I look forward to working with you and the rest 

of this Subcommittee and our witnesses to ensure that such enforcement will continue. 

Thank you very much. 

Chairman KOHL. Thank you very much, Senator DeWine, and we 

appreciate your making time in your schedule to be with us today. 

Our first witness this afternoon is the Honorable Charles James, 

Assistant Attorney General for the Antitrust Division of the Department of Justice. Mr. James was confirmed by the Senate in 

June of 2001. Prior to arriving at the Antitrust Division, Mr. James 

practiced law at Jones, Day, Reavis and Pogue’s Washington, D.C., 

office, where he chaired the firm’s antitrust and trade regulation 

practice. Mr. James previously spent 3 years in senior positions at 

the Antitrust Division during the first Bush administration, including serving for several months as Acting Assistant Attorney General for Antitrust. 

Next, we will hear from the Honorable Timothy Muris, Chairman 

of the Federal Trade Commission. Mr. Muris was sworn into this 

position in June of 2001. Early in his legal career, Mr. Muris 

served the Commission as Assistant Director of the Planning Office, Director of the Bureau of Consumer Protection, and Director 

of the Bureau of Competition. Before becoming Chairman, he 

taught at George Mason University Law School and served as interim dean of the law school. 

We thank you gentlemen for being here today, and first we will 

hear your testimony, Mr. James. 

STATEMENT OF CHARLES A. JAMES, ASSISTANT ATTORNEY 

GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE, 

WASHINGTON, D.C. 

Mr. JAMES. Thank you, Chairman Kohl. It is good to be here this 

afternoon—Senator DeWine as well. I am gratified to have the opportunity to talk about what we have been doing over the last 15 

months at the Antitrust Division on behalf of competition and consumers. 

I certainly want to begin by noting my appreciation for the interest in and support of the work of the Antitrust Division from this 

Subcommittee, and I certainly want to echo your sentiments that 

5

we all understand the importance of vigorous and sound antitrust 

enforcement. 

I tried to be as exhaustive as possible in my written remarks and 

in our responses to your questions. I would just like to highlight 

a couple of issues. 

In terms of our criminal program, I think you will find that it 

is, in fact, intact. During the course of the last fiscal year, we have 

filed 27 cases and we are well on our way to filing 40 or more 

cases, having approved an addition 5 that are still in process but 

have not yet been filed. We have received $125 million in criminal fines this year, or had 

those imposed by the courts. We had a record year in criminal restitution—$30 million. We have continued the upward trend in jail 

sentences in criminal cases. Two of our sentences during the last 

year were record sentences, one for 10 years, and one for 5 years, 

for antitrust and related offenses. 

Most importantly, the Division currently has 99 pending grand 

jury investigations in the criminal area, which is a very substantial 

number. And I would note that a substantial amount of our work 

over the years has involved these international cartel cases, and 40 

of our current grand jury investigations presently involve international cartel-type issues. 

Moving on to merger enforcement, as both of you have noted, the 

number of filings that we have received is down. During the 15 

months that I have been at the Antitrust Division, we received 

1,500 pre-merger transactions notified to us. That compares to 

nearly 5,000 in the year 2000 and over 4,600 in the year 1999. 

Nevertheless, the Antitrust Division has been active. We have 

challenged 21 mergers, 20 of them successfully. We have also had 

three important compliance cases, two involving compliance with 

Section 7A of the Hart-Scott-Rodino Pre-Merger Notification Act, 

and one involving compliance with a DOJ consent decree. 

Both of you have highlighted civil non-merger enforcement. I 

think it is important to note that when we began, there had been 

a very active civil, non-merger program that was consuming a 

great deal of resources. We have continued the expenditure of resources on those cases and litigation, but the basic pipeline was 

empty. During my tenure here we gave brought two significant 

civil, non-merger cases. 

But most importantly, we have commenced, apropos to Senator 

DeWine’s comments, a very, very close analysis of joint venture activity. We have made joint venture activity an important component of our activity. The fact of the matter is that our reorganization was designed to put more resources into civil non-merger enforcement rather than less, because we now have all of our sections 

focusing on civil non-merger enforcement rather than just one. 

As a matter of fact, I think the data that we have provided to 

the Committee indicates that we have opened up civil non-merger 

investigations at a faster rate than at any time over the last three 

to 4 years, and so that program is well underway. 

Now, the timeframes required to conduct these civil non-merger 

investigations is extensive. I think if you look back at the data that 

we have provided to the Committee, the average time frame for 

conducting investigations, during the last 4 years was between 1.9 

6

and 2.4 years. That is too much time for consumers and the marketplace, but these matters do require careful investigation, and we 

are doing everything we can to expedite these investigations as appropriate. 

We are very, very pleased with the strides we have made in the 

international area, which I know is an area that both of you have 

focused on. As you know, we began our tenure here with the divergence with the EU on the GE/Honeywell transaction, but we have 

used that divergence as a basis for stimulating a more concrete and 

substantive dialog with the EU, working to develop concrete proposals for achieving convergence on merger process and substance. 

And we see positive movement from the EC on many fronts, bringing our enforcement regimes into closer alignment. 

Beyond the U.S.–EU relationship, the ICN initiative, International Competition Network, for which we are one of the driving 

forces together with Chairman Muris and the FTC, will have the 

leaders of 65 jurisdictions sitting together next week to discuss concrete proposals for convergence on pre-merger notification, merger 

standards, investigative process, and competition advocacy. 

In effect, what we are aimed at doing at both agencies is turning 

talk into action. We think we have made very, very solid progress 

on positioning the Antitrust Division to become a more effective enforcer. We have had a reorganization and modernization. We have 

the merger review process initiative and very extensive best practices activity in the merger area both inside the Department of Justice and with the FTC. We have had our important policy initiatives in intellectual property remedies, coordinated effects in merger analysis, and Hart-Scott-Rodino compliance. 

So I am particularly pleased to be here today with Chairman 

Tim Muris, who has been a very, very supportive partner in everything that we have done. I think the relationship between the Federal Trade Commission and the Department of Justice is better 

today than it has been in quite some time, and we are indeed looking forward to the next year and working with this Committee to 

make the Antitrust Division as effective as it possibly can be. 

Thank you. 

[The prepared statement of Mr. James appears as a submission 

for the record.] 

Chairman KOHL. Thank you, Mr. James. 

Chairman Muris? 

STATEMENT OF HON. TIMOTHY MURIS, CHAIRMAN, FEDERAL 

TRADE COMMISSION, WASHINGTON, D.C. 

Mr. MURIS. Thank you very much, Mr. Chairman and Senator 

DeWine. It is a privilege to be here today before you and to be here 

with my good friend, Charles James. Charles and I are working, as 

he mentioned, on many collaborative activities and I believe he is 

doing an outstanding job. 

Let me just summarize the FTC’s testimony. I am testifying on 

behalf of the Commission and, of course, the answers to your questions will be my views only and not those of the Commission. 

I think the FTC’s record is impressive. We have a very dedicated 

professional staff, and I believe we have been continuing the excellent work of my predecessor, Bob Pitofsky. As you know, I am the 

7

only Bush appointee on the Commission and, despite that, virtually 

every action that we take is unanimous. There is a remarkable degree of unanimity among my colleagues, and that is especially true 

on substantive antitrust matters. 

I want to highlight today our recent history of aggressive enforcement, and I want to talk also about the special role of the FTC as 

an expert agency to advance the state of knowledge about various 

issues. 

Let me begin briefly with merger enforcement. Despite the decline in the merger wave, there are still many complex mergers. In 

many ways, the size, scope, and complexity of mergers have increased, and if you look at merger statistics over time—I have been 

involved with these issues since 1974 when I first worked at the 

FTC—merger activity remains high, complex, and difficult in a historical sense. It is just not nearly as high as it was during the unprecedented merger wave of a few years ago. 

We also have been devoting attention to non-reportable mergers. 

With the increase in merger notification thresholds, I believe they 

require more attention. We have brought cases against both nonreportable and also consummated mergers. We also have been 

working closely with Charles and the Antitrust Division to make 

the merger review process more efficient and transparent. 

Turning to non-merger enforcement, given the ebbing of the unprecedented merger wave, we have been able to increase resources 

devoted to non-merger enforcement. We opened more than twice as 

many non-merger investigations last fiscal year as the Commission 

did in fiscal year 2000, and we have been able to maintain that 

pace of opening new investigations in the fiscal year that is about 

to end. 

We have given special attention to the health care industry, and 

I greatly appreciate and agree completely with your comments 

about the importance of that industry. We have also given prominence to the energy industry. Let me just very briefly mention 

what we are doing in those two industries. 

In energy, although the pace of energy mergers has declined, we 

still have had very significant consents, most recently involving 

Phillips and Conoco. We also are studying various issues in this industry, including the recent volatility in refined petroleum product 

prices. We are going to issue a report on that topic. 

We also very recently, on a nationwide basis, in 360 retail markets and a significant number of wholesale markets, began tracking on a real-time basis those prices, looking for anomalies. The 

program has just started so it is really too early to report on it, but 

I have written letter to all 50 State attorneys general and gotten 

many letters back promising cooperation and support. I think this 

is an important area. 

In health care, we have a very significant program. We have doubled our resources spent on health care in fiscal 2002 compared to 

fiscal 2001. Pharmaceuticals remains the most important area for 

us, but we have gotten heavily involved in other issues in health 

care. We have brought a significant number of collusion cases recently. We are looking at consummated hospital mergers. We held 

an excellent workshop recently to discuss competition issues in 

8

health care, including the GPO issue, which I appreciate your calling to our attention. 

Obviously, as I mentioned, pharmaceuticals is the most important area in terms of resources, and an extremely important area 

to consumers. We have brought new cases since I have been at the 

Commission and we have certainly expanded our efforts in the 

pharmaceutical area. We released an important report on the socalled Hatch-Waxman law. I know the Senate has passed an 

amendment to that law. I think our report is an important addition 

to the understanding of how that very complex subject works. 

We also are very interested in high-tech and new economy issues. 

With the Department of Justice, we have commenced a series of 

hearings on competition in intellectual law and property in the 

knowledge-based economy. The hearings will conclude in October, 

and after that we anticipate issuing a report. 

Let me conclude briefly by just addressing the subject of antitrust exemptions. I think, in general, they are a very bad idea. 

There are some efforts to have new statutory exemptions enacted. 

I believe that antitrust is extraordinarily important in our economy 

and we should not shrink its domain. 

I also believe that there are some judge-made exemptions that 

need to be reviewed because some courts have interpreted them in 

an overly expansive way. We are doing that with the state action 

and Noerr-Pennington exemptions. 

To conclude, I greatly appreciate, Mr. Chairman, the opportunity 

to be here. I think we are doing aggressive and important work. As 

I have said many times, I very much enjoy being at the Commission: The mission is important, the issues are extraordinary, and 

the people are great. So what is not to love about the work that 

we are doing. 

Thank you very much. 

[The prepared statement of Mr. Muris appears as a submission 

for the record.] 

Chairman KOHL. Thank you, Chairman Muris. 

My first question is for you, Chairman Muris. As you know, over 

the last year our Subcommittee has investigated disturbing allegations of anti-competitive practices among the large buying organizations that purchase medical equipment and devices for hospitals—what are known as group purchasing organizations or 

GPOs. 

We held a hearing in April and received evidence of GPO practices that sometimes can indeed prevent innovative medical devices 

from getting to the hospitals and patients who need them—innovative products like safety needles or advanced pacemakers. 

This situation, of course, is very disturbing. It is not acceptable 

to us to tolerate a situation in which patients and physicians could 

be denied the best medical devices because of anti-competitive practices by GPOs. We were pleased that last month, in response to our 

concerns, two of the largest GPOs committed to voluntarily change 

many of their contracting practices and end their conflicts of interest. 

However, we also believe that vigorous antitrust enforcement is 

required of this industry, and that the joint FTC-DOJ health care 

guidelines covering the activities of GPOs need to be reviewed and 

9

update. We are very pleased that you agreed to initiate an inquiry 

into the GPO industry at our request several months ago. 

Chairman Muris, do you share our concern regarding the possibility of anti-competitive practices by GPOs, resulting in competitive device manufacturers being denied access to the hospital marketplace, and could you please describe your agency’s plans with 

respect to investigating this issue? Will you commit to revising 

your health care guidelines on this subject if anti-competitive practices are shown to exist? 

Mr. MURIS. As I mentioned, Mr. Chairman, I greatly appreciate 

your bringing this issue to our attention. I think it is an important 

one. As you know, we certainly are looking broadly at the issue. We 

also obviously will look at the healthcare guidelines to see whether 

they need to be changed. 

We recently held a panel during which several experts discussed 

the complexities of the issue. Participants included representatives 

from the GAO, people in the industry, and observers of the practice. I have read a great deal about it myself. 

I think we will looking at this issue fully, and I obviously commit 

to doing so. I don’t know where the Commission is headed in its 

review. We will have to let the facts speak for themselves, but I 

do know that it is an important issue and we are looking at it 

closely. 

Chairman KOHL. Mr. James, as these are joint Justice Department-FTC guidelines, will you pledge to work with the FTC on this 

issue? 

Mr. JAMES. Senator Kohl, when we received your letter making 

an inquiry the matter was cleared to the FTC. We indicated in our 

response to you that we would be happy to work with the FTC and 

support them in this effort, as they deem appropriate, so that as 

their analysis goes forward we have our policy people keeping track 

of what is going on and consulting with the FTC. We are certainly 

happy to work with the FTC to improve the guidelines, if that is 

what the evidence and their investigation and their general policy 

review indicates. 

Chairman KOHL. Chairman Muris, millions of Americans are disturbed nearly everyday in the privacy of their homes by annoying 

telemarketing telephone calls. It is a problem that has gotten out 

of control. The average American receives two to three telemarketing calls everyday, and my experience is that I often receive 

even more than that. 

Some estimate that the telemarketing industry is able to make 

560 calls, computerized, per second, which is roughly 24 million 

calls a day. So it is no wonder that people feel like they are oftentimes under siege in their own homes. 

We understand that the FTC wants to establish a national ‘‘do 

not call’’ list which would stop some, but not all, telemarketing 

calls. So let’s talk about it a little bit. 

What needs to be done to stop all of these calls? If this is the 

No. 1 consumer protection issue in the country—and if it is not, it 

is close—and if we need a uniform rule without exceptions and 

loopholes, then would you say that Congress must act in order to 

implement a stronger rule? What is it you are doing, what is it that 

needs to be done? Is it a desirable goal to enable every home in 

10

America, if it so wishes, to be able to block telemarketing calls as 

completely as it so wishes, with maybe just a few exceptions like 

charitable calls? What would you tell us today on this huge issue 

about which virtually every American home is listening to what 

you have to say? 

Mr. MURIS. It is a very important issue, Mr. Chairman. We have 

never received so many unsolicited comments so quickly as we 

have on the ‘‘do not call’’ issue. We are in the final stages internally 

of making decisions on the parameters and the various issues involved with the rule. 

In terms of some of the specifics that you have referenced, our 

rule, couple with now the Federal Communications Commission 

proposal, would, we believe, address about 80 percent of the phone 

calls. One of the biggest areas, quite frankly, that we cannot legally 

address involves phone calls involving political campaigns and political fundraising. 

The charities are an issue, and I believe that both legally and 

constitutionally charities should be subject to our rules, but that 

they need to be treated differently. Most of the States have some 

exemption for charities. That doesn’t mean you necessarily have a 

total exemption, but perhaps you can do it on a charity-by-charity 

basis, leaving that up to the consumer. 

As I said, we will move shortly, but what we do need from Congress is the authority to spend the money. I know you are on our 

appropriations Subcommittee, so this is highly relevant. The law 

allows us to have our rulemaking, but we can’t spend the money 

we need without your authority. We can’t afford to do the ‘‘do not 

call’’ rule, to implement it, without authority of Congress to spend 

the money. 

I am concerned by some of the discussion of a possible very longterm continuing resolution because if that happens and if we don’t 

receive authority to spend the money on that CR, then the ‘‘do not 

call’’ list will be delayed. 

Chairman KOHL. How much money are you talking about? 

Mr. MURIS. Well, it is not new money. We are raising the money 

through fees. It will be somewhere in the neighborhood of $10 to 

$12 million. It will be through fees, so it will be no new money for 

Congress. But obviously an agency cannot spend money without 

the authority of law. That is in the Constitution as well as the law, 

and so it will require the Congress to give us the authority to 

spend the money. 

As Congress is wrapping up its appropriations bills, and as it 

looks fairly clearly that there is going to be some sort of continuing 

resolution, the longer the continuing resolution leaves us without 

the authority to spend the money, then, of course, the whole process could be delayed. 

Chairman KOHL. All right, we will get back to you in just a 

minute on this. Senator Specter has arrived. He cannot stay too 

long and he would like to make a statement. 

Senator Specter? 

11

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you very much, Mr. Chairman. I 

commend you for scheduling this hearing on this very, very important subject and bringing two key antitrust enforcers into the hearing room. 

These are enormously important subjects, and regrettably there 

is so very little time for oversight with all the other work which 

we have before us. The homeland security issue and our oversight 

on the Foreign Intelligence Surveillance Act and the Intelligence 

Committees have sort of sucked all the air out of Washington on 

so many, many other things. I have other commitments that I have 

to excuse myself for, but I wanted to come by to say that I will be 

following it closely with the record and with staff. 

I have one question which I would like to ask both of you gentlemen. I hear recurring complaints from a variety of sources about 

the length of time that investigations take. When a company is 

subject to an investigation, it puts them on hold on many of the 

items on their agenda, such as raising capital, which is especially 

tough now. 

I know that you cannot put any time limit on investigations. It 

can’t be done. I have done enough work in the investigative field 

both as district attorney and in the Senate to know that you investigate until you conclude what you have to do. 

But the question I have for each of you is, is it a fair request for 

companies or for Senators to inquire as to a termination date, 

whether you can give it or not? Is that a fair request or do you 

think that that is inappropriately intrusive? 

Mr. James, we will start with you. 

Mr. JAMES. I think you have to divide the merger and non-merger world into separate pieces. I think it can be a fair request, Senator, if the parties are prepared to do what is necessary to bring 

the investigation to a conclusion. 

Our Merger Review Process Initiative is intended to do just that; 

that is to say, that we meet with the parties at a very early time. 

We try to work with them on a schedule for getting done what 

needs to get done. If they are willing to cooperate to provide information on particular dates and commit to do that, and if they are 

willing to make their executives available for depositions within 

the timeframes we need, we are prepared to agree to a particular 

date upon which the investigation will conclude. That is something 

that we think we have gotten very, very positive responses on from 

the business community. 

On nonmerger civil investigations, part of the problem is that 

many parties believe that until the investigation concludes, they 

are winning. So they have this tendency to try to take the agencies 

on what I call the ‘‘long stroll through the park.’’

We are taking aggressive steps to change that practice. I discovered recently that it has been quite some time since the Antitrust 

Division has ever sought to move to compel somebody to comply 

with some of our CIDs, and I have talked to our staff very aggressively about making sure that our CIDs are complied with promptly, that we take the important investigative steps to make that posVerDate Mar 21 2002 15:10 Jul 01, 2003 Jkt 087867 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\HEARINGS\87867.TXT SJUD4 PsN: CMORC
12

sible, and that we move people along in these merger investigations. 

The data indicates that these investigations are taking between 

1.9 and 2.4 years, on average. I think that is too long in a fastpaced economy, and we are doing everything we can to expedite 

things. 

Senator SPECTER. Well, I think that is a very good position, reasonable and equitable, looking for cooperation and being willing to 

move it along as fast as you can. I think that is fine. 

Mr. Muris, would you concur with that? 

Mr. MURIS. Yes, Senator, and I commend Charles for his leadership in this area. We also have been active here. One of the things 

we have done recently to hold a series of workshops around the 

country to get away from individual cases, talk generally about our 

merger investigations, about how we can do them better and faster. 

In a non-adversarial setting, we have been receiving some very 

good comments and suggestions. For example, some people have 

told us, discussed our standard second request—they have sort of 

done an anthropology and gone back and said, well, you added this 

specification in 1987, and then this one, and maybe you ought to 

rethink the package. Those are useful comments and they are easier to deal with when we are in a non-adversarial setting rather 

than not in the context of an individual case. 

Senator SPECTER. Thank you very much. Thank you for those answers, and thank you, Mr. Chairman. 

Chairman KOHL. Thank you, Senator Specter. 

I would like to come back, Mr. Muris, to these incessant calls 

being made across the country. You are saying you are in the advanced stages of a rulemaking process which, when concluded, if 

you will have adequate funding to implement that rule, you will be 

able to eliminate some 80 percent of these calls across the country? 

How will that work? 

Mr. MURIS. Well, for people who register on the list, and if 

the——

Chairman KOHL. People will then have to call. How will this 

work if I want to be on that list of non-call? 

Mr. MURIS. There will be several ways and we could put you very 

early on the list. 

[Laughter.] 

Mr. MURIS. We will certainly have a number for people to call 

in Washington. There are now 25 States that have ‘‘do not call’’ 

statutes, several of them very recently passed, and we are talking 

extensively with the States about harmonizing. One of the things 

that we hope to be able to do is have the people who are already 

signed up on State lists registered on our list. 

When the rule is implemented, it will be very simple to put yourself on the list. You call your State or us, and then the telemarketers will have an obligation under the Telemarketing Sales 

Act to check the list—and, again, we are still working out the final 

details and haven’t taken the final votes. If they do not comply, if 

they call people who are on the list, they will be violating the Telemarketing Sales Act. 

Chairman KOHL. They will be subject to severe fine? 

13

Mr. MURIS. Yes, and we have already tentatively budgeted a very 

large number of people, again assuming we get these funds, a large 

number of FTE for initial enforcement. Of course, we will work 

with the telemarketing industry, work with the States to go 

through an education process, both informing the consumers and 

informing the telemarketers about the new requirements of the 

rule. And those who don’t comply, we will have aggressive enforcement. 

Under the Telemarketing Sales Act, the States can enforce our 

rule and we expect that what many of them will do, as well, is pass 

a State law that would, in essence, make violation of our rule a violation of the State law. So we expect quite a bit of cooperation from 

the States, from the industry, education to consumers, and enforcement as it is needed. 

Chairman KOHL. When one calls, will they then be placed immediately on this so-called national registry? 

Mr. MURIS. Yes, when the rule goes into effect. We don’t want 

to encourage anyone to call yet, but we will, we hope, on a Stateby-State basis, given these various rules, be able to work with people to instruct them how to call. 

We have over 4,000 people on our media list. Most newspapers 

and TV stations of significant size have a consumer reporter, and 

we will be talking to them. They are a very important group for 

us in educating the public. We spend slightly more than half of our 

resources on consumer protection, and so that is a very large part 

of what we do. We already have, we believe, this educational network significantly in place. 

Chairman KOHL. Among the 80 percent of the calls now being 

placed across the country, which industries are we going to net in 

this? 

Mr. MURIS. It is an interesting question. It is hard to get precise 

evidence. Obviously, a large number of calls come from financial institutions. A lot of them come from long-distance services, but there 

are a wide variety of industries that make so-called cold calls, 

which are the calls you receive from someone you don’t know or 

you don’t have a relationship with. Those are among the most 

prominent industries. 

Chairman KOHL. Well, who won’t you be able to cover, and for 

what reason? 

Mr. MURIS. One of the biggest exempt groups involves the calls 

from political campaigns. The Telemarketing Sales Act effectively 

exempts all sorts of polling, as well as, private polling. As I mentioned, the PATRIOT Act made for-profit telemarketing on behalf 

of charities subject to the Telemarketing Sales Act. At least my recommendation would be to treat them differently, for both constitutional and other legal reasons. We have discussed this issue with 

the charities and I believe the charities are happy with what we 

are considering. 

Chairman KOHL. Do you expect to be able to implement this rule 

within the next 6 months? 

Mr. MURIS. We hope that we can promulgate the rule, vote it up 

or down, whatever, by the end of the year, and then begin the process of implementation. The actual first phone calls wouldn’t occur 

14

until sometime well into next year. We may have to promulgate the 

rule and wait for Congress to act on the funding issues. 

I know it would be a difficult thing to do, but if there is a longrun CR past Thanksgiving well into next year, which some people 

are considering, if we could put a provision on it to allow us to 

spend this money, then it wouldn’t slow down the implementation. 

Otherwise, the implementation will not occur. 

Chairman KOHL. Until the funding is there? 

Mr. MURIS. Yes. 

Chairman KOHL. This $10 to $12 million that you are talking 

about? 

Mr. MURIS. Yes. 

Chairman KOHL. Well, it sounds great. I mean, that would be an 

alleviation of a huge problem across this country and I am very enthusiastic to hear about your advanced state of preparation to end 

this problem. I am looking forward to working with you and doing 

everything I can in the appropriations process to get that funding. 

Mr. MURIS. Thank you very much, Senator. 

Chairman KOHL. Thank you. 

Mr. James, when you were confirmed for your position as Assistant Attorney General in charge of the Antitrust Division, no one 

doubted that your credentials were considerable, your qualifications were and are considerable, as was your expertise in antitrust 

law. 

However, some were concerned whether your harsh criticism of 

the Government’s antitrust enforcement activities in the past 

would mean perhaps that you would take a more hands-off approach to antitrust enforcement. Everybody preferred to give you 

the benefit of every doubt. However, some of your critics believe at 

this point that their fears have been at least partially realized. 

Let’s go through a couple of their points. 

First, they point to the Antitrust Division’s own statistics which 

show a sharp decline in enforcement activity since you assumed 

your position last year. While it is true that the number of merger 

filings you have received has substantially declined in the last couple of years, the decline in the Antitrust Division workload is not 

limited to your review of mergers and acquisitions. 

For example, the number of civil, non-merger investigations has 

declined about 30 percent from its annual average of the last 4 

years of your predecessor’s term. Likewise, the number of criminal 

cases filed with 2 weeks remaining in fiscal year 2002 is nearly 

half the average of the annual number of cases filed during the 

previous 5 years. 

Do these statistics indicate that the Antitrust Division has decided to adopt a less aggressive posture with respect to antitrust 

enforcement? 

Mr. JAMES. Senator, not at all. I am confused a little bit by the 

data that you report with regard to civil nonmerger investigations. 

The data that we have indicates that we have commenced civil 

nonmerger investigations at a higher rate than in the last 2 years 

of the Clinton administration—not that year-over-year comparisons 

are necessarily apples-to-apples comparisons in this business because we are not, after all, making widgets here. 

15

But the fact of the matter is that we have a serious commitment 

to civil nonmerger enforcement. As I said, we reorganized the Antitrust Division in part because in the past civil nonmerger activities 

were expected to be conducted by one shop of about 25 lawyers. We 

have placed that responsibility in all of our enforcement sections 

and given them responsibility for specific commodities. 

I think Senator DeWine mentioned that joint ventures and other 

kinds of collaborative activities short of mergers have become an 

important part of what is going on in the economy because mergers 

are more difficult to fund and finance in today’s world. We have 

made that our top priority. We have perhaps more joint venture investigations underway at the present time than at any time in the 

recent past. 

In terms of our criminal enforcement situation, we think that we 

have done a very good job in keeping things going. As I said, we 

have 99 grand jury investigations. I don’t think any of the defendants who have been sentenced in Antitrust Division cases who are 

now getting higher sentences and in some instances record sentences feel any diminution in our efforts. Our efforts aimed at 

international cartel activities are continuing apace. Forty of our 99 

grand juries involve international cartel activities. 

I am fully committed to vigorous antitrust enforcement; our staff 

is as well. I think a lot of the criticism represents a view of the 

numbers in a variety of different ways. I think the real numbers 

show you that we have the investigations and we have the enforcement actions. 

One of the things that we have seen in some of the characterizations of the numbers is a refusal to count in our merger challenges 

situations in which we have adopted a ‘‘fix it first’’ approach, which 

is something the Antitrust Division has done as a matter of policy 

for 20 years. 

Those are real merger challenges. When parties undergo an extensive investigation and at the conclusion of the investigation decide that they are going to restructure their transaction proposal 

and we respond to that, that is, in effect, a merger action that is 

as significant as any other. 

So we are very proud of our enforcement record and we think it 

is as vigorous as it possibly can be under the circumstances. 

Chairman KOHL. I just want to read my numbers again. They 

don’t comport with yours. It is probably more true of me than it 

is of you that they say figures don’t lie, but liars can figure. But 

we are talking about me, I am sure, more than you. 

Here is what I want to say again, and apparently you would disagree. The number of civil, nonmerger investigations has declined 

about 30 percent from its annual average of the last 4 years of your 

predecessor’s term. Also, the number of criminal cases filed with 2 

weeks remaining in this year is nearly half the average of the annual number of cases filed during the preceding 5 years. 

Now, we don’t have to maybe come to a definitive answer on that 

now, but I think we need to come to some conclusion on which 

numbers are——

Mr. JAMES. Senator, I would like to offer you a written clarification because I don’t have the numbers right in front of me. 

Chairman KOHL. OK. 

16

Mr. JAMES. But I will represent to you today that on the civil 

nonmerger front our numbers are absolutely solid and we have 

commenced more investigations than in the past. 

On the criminal side, the criminal enforcement program has gone 

up and down, and we don’t invent the crimes, we just prosecute 

them. We have had a situation where in the prior administration 

they benefited from a change in our criminal amnesty program, 

which generated a number of cases, and other events. 

I can tell you that our staff is doing everything humanly possible 

in the form of outreach in particular sectors, such as working with 

procurement officials to discover important criminal cases. And I 

think that our number at the end of the year will be perhaps, if 

lower, certainly within a range of an important level of enforcement. 

Chairman KOHL. Just one other comment on the numbers. Is the 

sharp decline in the number of initial pre-merger investigations initiated by the Antitrust Division in fiscal year 2002—two-thirds less 

than the annual average from the years 1997 to 2000—is this attributable to the decline in pre-merger filings, or is there perhaps 

something else going on here? 

Mr. JAMES. Actually, Senator, I do happen to have those numbers in front of me. In each of the 2-years, fiscal 1901 and 1902, 

we had actually commenced pre-merger investigations and issued 

second requests as a higher proportion of the mergers, or higher 

percentage of the mergers, than any of the last 3 years of the prior 

administration. 

We issued second requests, I believe, or started investigations in 

roughly around 4.5 percent of mergers in 2001 and 5.31 percent in 

2002. The comparable numbers for the last 2 years of the prior administration were 3.71 percent and 2.78 percent. So, actually, as a 

percentage of the filings we are getting, we are conducting more investigations. 

Chairman KOHL. This past year, you eliminated the Civil Task 

Force, the unit devoted to pursuing civil, nonmerger cases, and the 

Health Care Task Force, the unit devoted to antitrust enforcement 

in the health care industry. It is my understanding that the attorneys and staff in these sections have been dispersed to other parts 

of the Division and will no longer solely specialize in these areas. 

Is there not a danger of losing the expertise of the staff of those 

sections by eliminating these task forces, and does this signal a 

lessening of the Division’s commitment to civil, nonmerger antitrust enforcement in the health care sector? 

Mr. JAMES. Well, starting first with the civil, nonmerger area, 

one of the things that I discovered when I first began looking at 

this issue was that our so-called Civil Task Force was actually 

spending most of its time on merger enforcement. I think 70 percent of its docket was merger enforcement, in part because of the 

absence of a pipeline of civil nonmerger investigations at that time. 

We have taken a slightly different approach, in part because we 

want to broaden the expertise of our sections, and, in part because 

we want to do what I call community policing. As Senator DeWine 

mentioned, these joint ventures and other forms of collaborative activity that make up nonmerger civil enforcement take place outside 

the context of any kind of pre-transactional reporting. 

17

Agency lawyers must actually focus and be experts on these industries in order for them to identify the transactions that they 

need to investigate. In other words, transactions don’t always report themselves to us. 

Our reorganization by, first of all, making all of our sections responsible for the full range of civil enforcement, and second by assigning specific commodity responsibility and accountability to individual sections, has our lawyers now looking much more aggressively for opportunities to bring civil nonmerger cases. Hence the 

reason we have started these investigations at a faster pace than 

the prior administration. 

With regard to health care, the Department of Justice has played 

a significant role in health care and continues to play a significant 

role. If you look at the last 10 years or so, the Department of Justice has never been particularly active on the doctor side of the provider equation. That is something that historically has been more 

of the focus of the Federal Trade Commission. 

The situation in hospital mergers is pretty well-known to the 

Committee. The agencies have an unending string of lost hospital 

merger cases. As a matter of fact, one has not been brought in recent years. 

Although we are very interested in enforcing the antitrust laws 

in all areas of health care, we place most of our emphasis on a portion of the health care industry that has been almost forgotten, and 

that is the payor side. I think many people have noted the increased concentration in the payor industry, insurance companies 

and managed care plans, and we have done a fair amount of outreach and are focusing our efforts on looking for significant antitrust issues in that sector. 

In the past year, we have had a couple of matters where we commenced investigations and the mere commencement of the investigation caused insurance companies to decline to implement certain practices about which we had raised questions. 

We think our health care program is active. The lawyers who are 

involved and knowledgeable about these issues continue to work on 

them. They have not been just dispersed arbitrarily across the 

Antitrust Division. They have been dispersed in a manner that has 

kept case teams and expertise together, and so we expect to be an 

excellent partner for Tim Muris in enforcing the antitrust laws 

with regard to the health care industry. 

Chairman KOHL. All right. Mr. James, on Microsoft, in many respects your legacy is going to be defined by your settlement of the 

ground-breaking Microsoft case. Many people call this the antitrust 

trial of the century. 

We think that you will agree that this settlement will not be considered a success if, at the end of the 5-year term, Microsoft retains 

its dominant position in the computer software industry, retaining 

its 95-percent market share in personal computer operating systems and its more than 90-percent share in Web browsers. 

Now, I am willing to bet that Microsoft 5 years from today will 

be just as dominant as it is now. So my question to you is this: Are 

you willing to take my bet? Are you confident that Microsoft’s 

domination will turn around and that the settlement will bring the 

18

real competition to the computer software market that it was intended to do? 

Mr. JAMES. Senator, I think one of the most important issues 

here is the premise of the question. The antitrust case that the Department of Justice commenced against Microsoft assumed as an 

initial matter that Microsoft was a monopolist in the area of operating systems, and it conceded that, there being no record or presentation to the contrary, that they had obtained that monopoly position through lawful means. The crux of the case that we brought 

was one that focused on certain practices that they engaged in in 

the exercise of the monopoly that they had. 

Our settlement addresses the conduct that the court of appeals 

found unlawful and sustained in our case. One of the most important things to remember about this case is the very substantial 

way in which the court of appeals narrowed the case from its original focus. It eliminated substantial portions of the case in terms of 

office market monopolization, the monopoly leveraging claim, the 

exclusive dealing claim, and the tying claim, and the attempted 

monopolization claim. 

I think that the case that emerged from the court of appeals was 

a very different one than the one that was initially brought, and 

we believe that our settlement will have the effect of eliminating 

those practices. Then the marketplace will have to determine who 

has what share of which markets. But we are committed to making 

sure it is the marketplace, and not Microsoft’s private conduct, that 

makes that determination. 

Chairman KOHL. So you say that 5 years from today under certain circumstances, if they retain their 95-percent share in computer operating systems and 90-percent share in Web browsers, 

under certain conditions that would be all right? 

Mr. JAMES. If that is the result that the market dictates, free 

from unlawful restraints imposed by Microsoft, I think that is the 

result that we have to live with under the antitrust laws. 

Chairman KOHL. While the settlement has not been approved by 

the court, I understand that Microsoft has agreed to implement 

some of the provisions right away. Just yesterday, the industry 

group Pro Comp wrote to you to report, quote, ‘‘at least six separate 

and ongoing violations of one section of the lengthy settlement 

agreement.’’

Have you been satisfied with the manner in which Microsoft has 

implemented the settlement thus far? 

Mr. JAMES. As of this point, Microsoft is operating under the 

stipulation to undertake certain specific actions of the consent decree, because as you mentioned, the decree itself has not been entered. The types of actions that are the subject of the Pro Comp letter are things that are just being rolled out. 

We are absolutely committed to making sure that Microsoft lives 

up to the letter and the spirit of our consent decree, and we have 

indicated to the computer industry that we expect to work with 

them very closely in making sure that occurs. 

We have done so by reaching out to members of the computer 

community. We have developed a program that we call our Microsoft compliance advisory program in which when significant develVerDate Mar 21 2002 15:10 Jul 01, 2003 Jkt 087867 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\HEARINGS\87867.TXT SJUD4 PsN: CMORC
19

opments occur, we note them on our Web site and encourage people 

to comment. 

As you noted, perhaps not coincidentally the Pro Comp letter was 

issued late in the day yesterday, and so we haven’t had the opportunity to work with it. We have certainly been trying to encourage 

input from these companies, and we hope that they will work with 

us rather than just sort of sitting back and trying to have press 

events, because we think their constructive input into the process 

will help the consent decree operate in the way that it should. 

Chairman KOHL. Will you commit to pursuing another antitrust 

enforcement action against Microsoft if you determine that Microsoft is engaged in additional anti-competitive practices in the future, Mr. James? 

Mr. JAMES. Absolutely. When we looked at the Antitrust Division 

as part of our reorganization, we saw we had a computer shop that 

didn’t handle the computer industry, but really did other things. 

One of the things that we have done through the reorganization is 

to create a cradle of expertise in that computer shop, and we also 

took the extraordinary step of creating a linkage between our computer shop here in Washington, our networks and technology section, and our San Francisco field office, which has good contacts 

and other things in Silicon Valley. 

We appointed a coordinator there in the San Francisco field office 

and made the assistant chief of the San Francisco field office the 

co-assistant chief of our networks and technology section. So we are 

very committed to pursuing antitrust cases as appropriate in the 

computer industry, whether they involve Microsoft or any other significant information technology provider. 

Chairman KOHL. All right. Mr. James, people, as we know, in 

America adore their television sets and millions of consumers will 

pay to subscribe to a cable or satellite television service in order 

to get more channels and better picture quality. 

Fostering competition and ensuring a level playing field in this 

market is essential to discipline rates and improve service quality. 

Unfortunately, every year it seems we witness increased cable 

rates and yet another merger in this industry. Indeed, cable rates 

have gone up more than triple the rate of inflation since 1996. Consolidation and not competition is the trend in the subscription television market and, of course, it is troubling. 

Let’s focus on some of the recent merger activities in this sector. 

Currently, the Antitrust Division is considering a very important 

merger for millions of American consumers, a proposed merger by 

the only two companies offering satellite television, Echostar and 

DirecTV. In my view, this merger is highly problematic. It would 

create a monopoly in the satellite TV business, and therefore likely 

cause substantial harm to consumers of subscription television, especially those in rural areas where there is no effective cable TV 

competitor. 

Now, Mr. James, we know that you cannot comment on a pending merger, but can you at least tell us when we can expect you 

to reach a decision? 

Mr. JAMES. Certainly, Senator. As you point out, this is a very 

important transaction. At best, it is a three-to-two merger, and, as 

you point out, in some instances it is a two-to-one merger, and is 

20

very important to the future direction of multi-channel video programming delivery. 

I can tell you that as I sit here, there is not a single matter in 

the Antitrust Division at present that is consuming more resources 

and getting more attention than the DirecTV/Echostar transaction. 

What you will probably note is that in all of the areas where there 

is a separate antitrust review and an overlaying regulatory review, 

the transactions tend to get timed out according to the progress of 

the regulatory review. In this case, the DirecTV/Echostar proceeding at the FCC has been on and off again as they have stopped 

and started the clock. 

We are moving to bring this investigation to a prompt conclusion 

and we hope to do so as quickly as possible. We have been conducting discovery as late as last week. We are looking at it very 

closely. We are going to reach our conclusion as quickly as possible. 

I don’t think that it would be appropriate for me to say that it is 

going to be a month, 20 days, 35 days, but I can tell you that when 

the transaction is ripe for decision, a decision will be made and we 

are very serious about this transaction. 

Chairman KOHL. All right. Mr. James, if allowed to merge, 

AT&T and Comcast will be the largest cable company in the country with more than 22 million subscribers, or about 30 percent of 

the Nation’s cable television market. We were surprised when this 

week the Justice Department let the deadline for dealing with this 

merger pass without doing anything. 

How can the Antitrust Division let such a giant merger go without even a whisper of concern or the most modest of conditions? 

Surely, reasonable people can agree that this deal poses some antitrust concerns. 

Mr. JAMES. Senator, as I sit here, I am not quite sure what 

prompted the company to issue the press release that it issued yesterday. Our investigation of the transaction is continuing. As I 

mentioned earlier, it is fairly customary for the timing of these 

matters to proceed on the pace of a companion regulatory proceeding. 

You may recall, for example, that the FTC’s AOL/Time Warner 

investigation took roughly a year because of the overlaying FCC review process. Unless matters are reviewed by consent decree, it is 

certainly the case that we are not in a position to move against 

them because there is no imminent harm. 

But lest there be any confusion about the status of our ongoing 

inquiry, when I saw this announcement in the media I directed the 

staff that we were to instruct the parties that the investigation is 

ongoing and we will bring that to a conclusion as promptly as possible. 

Chairman KOHL. OK. News reports indicate that CableVision, 

with more than 3 million cable subscribers, is considering a sale of 

its cable assets. To be sure, if purchased by AOL-Time Warner or 

AT&T/Comcast, it will simply be a case of the big getting even bigger. So where do you draw the line? 

Some would argue that these are adjacent monopolies that don’t 

compete with each other, so therefore let them merge. Is there any 

level of concentration in the cable industry that you would find unacceptable? Wouldn’t your analysis of the AT&T/Comcast deal perVerDate Mar 21 2002 15:10 Jul 01, 2003 Jkt 087867 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 C:\HEARINGS\87867.TXT SJUD4 PsN: CMORC
21

mit the industry to consolidate to only one national cable company 

if there were no ownership limits at the FCC? 

Mr. JAMES. Well, again, the AT&T/Comcast transaction is ongoing. We obviously have to look in all of these transactions for instances of competitive overlap between the cable systems. We certainly look at these transactions to see whether a company that 

has a large number of cable systems across a number of markets 

could potentially have an effect on the content market. 

We also look at these transactions to determine whether or not 

they have any impact on the commercialization of delivery technologies, like set-top box software technology. In all of these transactions, we look at them on the merits and we are looking for instances in which the transactions will have adverse competitive effects. So it is not just a matter of whether or not there is an endto-end situation, meaning adjacent markets, but there all a whole 

host of horizontal and vertical issues that we examine. 

Chairman KOHL. Mr. James, another issue we have recently 

been hearing about concerns competitive cable TV companies. 

These are the over-builder companies that come into a city and 

build a fresh, new cable system to go head-to-head with the incumbent cable company. These competitive, new over-builder cable 

companies say that they have been the victims of allegedly predatory practices designed to drive them out of the market by the 

large incumbent cable TV companies. 

These practices allegedly include incumbents offering drastically 

reduced, below-cost pricing of programming only in the areas that 

these upstart competitors operate. These allegations are especially 

disturbing because the presence of these new competing cable companies are one of the few things that seems to restrain cable rates 

which continue to rise several times, as I said, above the rate of 

inflation. 

Mr. James, what is your view of these allegations of predatory 

practices in the cable TV industry? Will the Antitrust Division be 

investigating these allegations? 

Mr. JAMES. Senator Kohl, I think the types of allegations that 

you are talking about—predatory pricing allegations in cable overbuild situations—are questions that have been raised ever since 

local governments have been giving out cable franchises. 

There has been a fair amount of private litigation on this topic. 

I am not aware of very much of it that has been successful. The 

economic viability of a second cable operator is open to question, 

particularly in light of the advent of satellite delivery. There is a 

very stringent legal standard for proving predatory pricing in this 

industry and others. 

But the question that you raise is an important enough issue 

that we need to look at periodically as the pricing structure of both 

cable television and other delivery systems change, and as the nature of content relationships change. I know for a fact that we have 

at least one circumstance in which allegations of predation involving an over-build are under investigation and we are taking a serious look at it. 

Chairman KOHL. Chairman Muris, what is your view of cable 

consolidation? 

22

Mr. MURIS. Certainly, Senator, it is important to view any sort 

of consolidation in the context of the relevant geographic markets. 

In some industries—and I am not, quite frankly, as familiar with 

cable as I am with a lot of the other industries we deal with every 

day—the relevant geographic markets are not national. 

I do think that when you have consolidation, it is important to 

understand the reasons for consolidation. Sometimes, I think the 

consolidation goes too far, and I think the Commission has been 

appropriately aggressive in a bipartisan fashion on mergers—

which, as you know, is our primary vehicle for dealing with the 

issue. 

Chairman KOHL. This is for both of you, gentlemen. In the last 

few years, we have all seen a great wave of consolidation in the 

media and entertainment industries. Blockbuster deals like AOL/

Time Warner, CBS/Viacom, and most recently Comcast/AT&T have 

become routine, and it seems like fewer and fewer companies are 

controlling the sources of information, news, and entertainment for 

the American public. 

Many people are concerned about the ability of smaller independent voices to be heard or seen in today’s huge, consolidated 

media industry. Former FTC Chairman Pitofsky held the view, a 

view that I happen to share, that when dealing with mergers in the 

media, unlike mergers in other industries such as banks, oil companies, or cereal companies, for example, we must give them a 

more exacting scrutiny because these mergers affect competition in 

the marketplace of ideas which are so central to our First Amendment liberties. 

Mr. James, first of all, do you agree with that observation by Mr. 

Pitofsky? 

Mr. JAMES. Well, if I understand former Chairman Pitofsky’s remarks to indicate that the media industries are important industries and therefore they merit very close scrutiny in the merger 

area, I think that is absolutely correct. 

If, on the other hand, former Chairman Pitofsky is suggesting 

that there can be an antitrust basis for analyzing a media transaction on some basis other than the economic consequences of the 

transaction, I am not sure that I would agree with that proposition. 

The concept of diversity of viewpoints in ownership of media outlets is something that is more specifically under the province of the 

FCC, which regulates this as a matter of licensing and public interest determinations. Our approach to these media consolidations is 

to look predominantly at their economic consequences in terms of 

advertising, provision of service, innovation, and the types of competition-oriented concepts with which we are all familiar. 

The Antitrust Division would have a very difficult basis for asserting in a legal challenge that the pure issue that was before the 

court was the diversity of voices in a content sense. I am not aware 

of any situation in which an antitrust agency has ever challenged 

a transaction on that basis. 

But I agree with you that these are very, very important transactions. We look at them closely, and we do look at content, but not 

from the standpoint of diversity of content, but really the economic 

consequences of content. 

23

Chairman KOHL. I am not sure Mr. Pitofsky would agree with 

that, but I respect your opinion. 

Chairman Muris? 

Mr. MURIS. I agree with Charles, but let me amplify with a couple of points. One, I have known Bob Pitofsky for a long time, since 

1976. I think as chairman, his views in action were more constrained than some of his writings had been, in part because the 

law was a constraint. I think that is the point Charles is making. 

On the other hand, I think there is a substantial overlap between 

the concerns that you are expressing in the context of diversity of 

ideas and antitrust issues in the sense that in terms of programming, in terms of consolidation, in terms of mergers, in terms of 

potential exclusion, you can have antitrust issues that arise in traditional terms. And I think these issues are all the more sensitive 

because of the sensitive nature of the industry. 

Chairman KOHL. Mr. James, just to followup, aren’t you concerned that the current pace of media consolidation will hamper 

greatly the ability of independent voices in this country to be 

heard? Are we in danger of just a very few companies controlling 

the news and entertainment choices for much of our country? 

Mr. JAMES. Senator Kohl, actually during my brief 15 months 

with the Antitrust Division, there has been very little media consolidation because there have been very few mergers filed. But I 

echo concern about this, and I think what Tim and I are trying to 

say in our perhaps inartful way is that there can be an economic 

market for content. And to the extent that there is an economic 

market for content, for example, if you were take the production of 

movies, there can be economic consequences to that. 

I don’t know that I would be the person who would want to regulate how many dramas versus how many comedies were produced. 

But we certainly would look at the economic consequences of the 

market for the production of movies. 

In other sorts of contexts, programming is provided and the medium in which it is exchanged is advertising. So the control over 

the outlets or the creation of the programming that sells the advertising is what we look at. But we are trying to really make a distinction between those types of economic consequences and other 

kinds of consequences. 

But I share the concerns. I am an American citizen. I have a television in my house and I would like to see diverse and broad programming. I am just not altogether sure that it is within the Antitrust Division’s scope or that the Antitrust Division has the capability to make sure that happens. 

Chairman KOHL. You have a role, though. 

Mr. JAMES. We certainly have a role in regulating the economic 

circumstances of these markets, or at least enforcing the antitrust 

laws as they apply to the economic circumstances. 

Chairman KOHL. Do you have a role in trying to ensure the diversity of opinion that you talk about wanting to see? 

Mr. JAMES. I would say that we have the role of ensuring that 

there are economic options available in a competitive market, sir. 

Chairman KOHL. Mr. Muris? 

Mr. MURIS. Again, I agree with Charles. I am not sure this is 

your premise, but I suppose it depends on what your baseline is. 

24

We have had a tremendous increase in the forms of news outlets 

that we have, plus the Internet is a whole new world. I think it 

is important, to the extent that anticompetitive activities limit 

those options, that the antitrust laws be vigilant. 

What Charles and I are partly trying to say is that, although expressed in different terms than antitrust lawyers would express it, 

there is a substantial overlap between concerns about diversity and 

the antitrust laws. In other words, some of the concerns can be presented in the economic terms that we deal with every day in the 

antitrust laws. 

Chairman KOHL. All right, gentlemen, let’s talk a little bit about 

airline competition. 

Mr. James, one of the priorities of our work in the Antitrust Subcommittee has been airline competition. We all know that the airline industry has gone through tremendous difficulties since the 

tragedies of last September 11, so much so that the survival of several of the Nation’s leading airlines is in doubt. 

We are sympathetic to the difficulties faced by these airlines and 

their employees. Nonetheless, we remain committed to retaining a 

competitive airline market in the face of these challenges. We must 

not allow competition in the airline industry to be another casualty 

of September 11. Without real airline competition, millions of travelers are likely to suffer higher fares and diminished choice for air 

travel. 

Recently, much attention has been focused on proposals by three 

large airlines—Delta, Northwest and Continental—to form an alliance. In addition, United and US Airways recently announced a 

code-sharing arrangement. Last year, the Antitrust Division moved 

to block the proposed merger between United and US Airways. 

Now, these two airlines want to engage in code-sharing. 

What is the difference between these alliances and code-sharing 

and a merger? If you would not allow a merger, would you allow 

airlines to engage in cooperative arrangements like code-sharing 

and alliances, Mr. James? 

Mr. JAMES. Senator Kohl, I apologize. By virtue of my former life, 

I have recused myself from all airline matters and that is being 

handled by one of my deputies. 

I will say to you just as an observer that the Antitrust Division 

has been as aggressive in the airline industry as it has been in any 

industry. You pointed out the US Air/United transaction. We sent 

forth comments that I think the parties would view as adverse in 

the British Air code-share arrangement to DOT, and the DOT ultimately conditioned the transaction on many of the bases that we 

had suggested. We have sent comments forward opposing the antitrust transaction for the Air Hawaii transaction. 

Just generally, I would note you mentioned the financial circumstances of the companies in this industry. There are circumstances in which financial condition is relevant to antitrust 

analysis. But as a general policy matter, in the airline industry and 

elsewhere, we at the Antitrust Division take the view that there is 

no reason to assume that the antitrust laws ought to be enforced 

any less vigorously in industries on a downward trend than on industries in an upward trend. 

25

We are just calling them as we see them in this area and others, 

and if you would like a more specific answer to your question on 

code-sharing arrangements, I am certain that I can get you one. 

Chairman KOHL. OK. A question on international antitrust 

issues. Mr. James, we have been working for the last few years to 

achieve greater harmonization between United States and European antitrust enforcement agencies. However, recently it seems 

that in several cases the European antitrust authorities have relaxed their enforcement activities and many people wonder if they 

are following your lead. 

For example, in a development that surprised many observers, 

European Competition Commissioner Monti decided to approve the 

merger of two cruise lines, Carnival and Princess Cruises, after 

threatening in June to block the deal because of the dominance of 

the combined company. 

Many are concerned that the apparent change in direction in European antitrust enforcement has been influenced by pressure from 

U.S. antitrust agencies. This past May, you visited Brussels and 

met with Commissioner Monti. During your visit, you gave an 

interview with the Financial Times which many observers interpreted as skepticism regarding the legal basis for the EC’s investigation of Microsoft. You were also quite critical of the EC’s decision to block the GE/Honeywell merger last year. 

Have you attempted to influence the EC and Mr. Monti to relax 

their antitrust enforcement efforts, including with respect to the 

EC’s investigation of Microsoft? How do you respond to those who 

are concerned that the Justice Department is urging the EC to 

lessen its antitrust enforcement? 

Mr. JAMES. I don’t think there is any basis for suggesting that 

we are encouraging the EC to lessen its enforcement. As we all 

know, Senator, we now live in a global economy and there is certainly the prospect, with 100-some-odd antitrust agencies enforcing 

the antitrust laws on their own terms, that we will have conflict, 

confusion, and divergent outcomes. 

Our work with the European Union is designed to achieve policy 

harmonization and convergence so that the rules of competition 

apply equally across the board such that, in particular, nationals 

of one country are not disadvantaged when they attempt to compete in another. 

We have made no effort to influence the European Union about 

any particular case. Our discussions with them are either on a policy basis or, in the context of an individual case, on a consultative, 

informational basis. We have discovered in the course of trying to 

make antitrust enforcement effective that it is important that our 

agencies are both getting the same information from parties who 

are proposing mergers. It is very important that we know the type 

of information that is being provided there and that they know the 

type of information that is being provided here. 

I can assure you that we have a commitment to vigorous enforcement of the antitrust laws in the United States. I know that Commissioner Monti has the same kind of commitment in Europe, and 

we are certainly not encouraging him to make his enforcement lax. 

Chairman KOHL. But you were critical of the EC’s decision to 

block the GE/Honeywell merger last year. 

26

Mr. JAMES. I was critical, I think, of the basis upon which it was 

done. I pointed out that it did, in fact, represent a divergence from 

what we understand to be appropriate competition policy; that is, 

policy that protects competition and not necessarily competitors. 

The case is under review by the European courts and we will have 

to see how the European courts resolve this issue. 

I was not criticizing, Commissioner Monti or the European 

Union, but rather I think we were talking about the way in which 

their theory diverged from ours. We think that it is important to 

stimulate within the academic and intellectual and business community debate about which are the appropriate theories that 

should be pursued, because if we are all doing our job and the intellectual vigor of this debate is appropriate, then we will all ultimately be informed by the right intellectual thought process on 

these issues. 

Chairman KOHL. Chairman Muris, as in so many other industries, we have seen an enormous amount of consolidation in the 

drug industry, most recently the merger between Pfizer and 

Pharmacia. Yet, prescription drug prices continue to rise. 

Are you concerned with this consolidation in the pharmaceutical 

industry? What are the implications of this consolidation for consumers who are looking for cheaper drug prices? 

Mr. MURIS. The issue of drug prices is extraordinarily important 

to us. As I mentioned, we have doubled our resources devoted to 

health care, and by far and away most of the effort is in the pharmaceutical area. 

The Pfizer merger is obviously before us and at a very early 

stage; and so I can not comment further. I can say that we have 

been extraordinarily aggressive particularly, in the last year, on 

the issue of what we consider problems in misusing the HatchWaxman amendments. 

We have brought several cases both before and after I arrived 

was there. I think those cases are an excellent example of how 

antitrust can indeed lower prices for consumers. We have many 

more investigations underway, and Congress is now paying great 

attention, as I mentioned before, with the Senate’s passage of S. 

812. So it is an extremely important area. One of the reasons we 

have antitrust laws is just for these kinds of situations. 

Chairman KOHL. The last question, gentlemen, is I would just 

like to ask both of you what is your philosophy and how does it differ from the philosophy of your immediate predecessor to antitrust 

enforcement—you, Mr. James, with respect to Joel Klein, and you, 

Mr. Muris, with respect to Robert Pitofsky. 

We will start with you, Mr. James. How does your approach differ? 

Mr. JAMES. Well, I don’t know that it necessarily does. As I know 

Joel, what he attempted to do at the Antitrust Division is to bring 

a legally-based approach to antitrust enforcement. I think he tried 

to the best of his ability to conduct thorough investigations, to let 

cases be decided by the facts, and to bring the cases where the 

facts and the law indicated a violation. That is certainly my approach, and so I don’t know that there is much of a difference. 

I think in terms of how we have done the job, we came into the 

Antitrust Division after it had undergone a substantial merger 

27

wave that had caused the agency to engage in a lot of triage and 

not have the time to focus on process, investigative technique, and 

things of that nature. 

I have been a professional antitrust lawyer my whole career and 

I have put a lot of emphasis on getting the agency in good shape 

with respect to organization, process, and technique. I think we 

have made some progress in that respect. 

But I think the time to make that comparison is really at the end 

and not sort of at the beginning or in the middle. And I think in 

either case what is going to dictate the difference and result is the 

types of economic circumstances that we were confronted with. Joel 

was confronted with a merger wave and a lot of changes in the 

technology industries. I am confronted with a joint venture wave 

and I am trying to make the best out of that one. 

So I think Joel and I probably have a lot of things in common 

in terms of our approach to antitrust enforcement and law enforcement and the importance of the antitrust laws. 

Chairman KOHL. Would you have brought the antitrust case 

against Microsoft in the first place? 

Mr. JAMES. You know, it is sort of interesting. I have read the 

entire record and I would know which allegations to press because 

I am looking at the end of the game and I can see what worked 

in court and what didn’t work. Certainly, I have full belief in the 

violations that are found by the court of appeals and we are doing 

our best to remedy them. 

Chairman KOHL. So you imagine you probably would have 

brought the antitrust case against them, maybe in different ways, 

but you would have gone to court with them? 

Mr. JAMES. I would have brought a case to address the violations 

that the court of appeals found, absolutely. 

Chairman KOHL. OK. Chairman Muris, you have the last word. 

Mr. MURIS. Thank you, Senator. As I mentioned, I have known 

Bob Pitofsky for a long time. In 1988, we were on the American 

Bar Association Antitrust Section Committee to study the FTC, 

and I think we realized that our agreement on these issues was in 

probably the 85- to 90-percent range. That doesn’t mean that there 

are not occasionally disagreements. 

During the Clinton administration, I actually criticized the administration only on two merger cases and a few other cases. On 

one of the merger cases, Microsoft-WebTV, I criticized them for not 

bringing the case. On another merger case at the FTC, I criticized 

them for bringing the case. 

But I will say there was one very important difference between 

Bob Pitofsky and myself that I announced when I was sworn in, 

which is that the Commission no longer had a majority of New 

York Yankee fans. 

Chairman KOHL. That is serious. 

Mr. MURIS. Yes, sir, it is. 

Chairman KOHL. Before we end this hearing, written testimony 

to be entered into the record has been submitted by the Broadband 

Service Providers Association, the American Antitrust Institute, 

the Air Carrier Association, and the Renewable Fuels Association. 

In addition, we have data requests that we have sent to the Department of Justice and Federal Trade Commission and the agenVerDate Mar 21 2002 15:10 Jul 01, 2003 Jkt 087867 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 C:\HEARINGS\87867.TXT SJUD4 PsN: CMORC
28

cies’ responses to the data requests that we would like to enter into 

the record. 

[The information referred to appears as a submission for the 

record.] 

Chairman KOHL. We also have a statement that Senator Hatch 

has submitted and that will be included in the record. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Chairman KOHL. The record will remain open for 1 week from 

today for additional statements and questions. 

We thank you for coming and this hearing is adjourned. 

[Whereupon, at 3:03 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.]

29


87867.001
30


87867.002
31


87867.003
32


87867.004
33


87867.005
34


87867.006
35


87867.007
36


87867.008
37


87867.009
38


87867.010
39


87867.011
40


87867.012
41


87867.013
42


87867.014
43


87867.015
44


87867.016
45


87867.017
46


87867.018
47


87867.019
48


87867.020
49


87867.021
50


87867.022
51


87867.023
52


87867.024
53


87867.025
54


87867.026
55


87867.027
56


87867.028
57


87867.029
58


87867.030
59


87867.031
60


87867.032
61


87867.033
62


87867.034
63


87867.035
64


87867.036
65


87867.037
66


87867.038
67


87867.039
68


87867.040
69


87867.041
70


87867.042
71


87867.043
72


87867.044
73


87867.045
74


87867.046
75


87867.047
76


87867.048
77


87867.049
78


87867.050
79


87867.051
80


87867.052
81


87867.053
82


87867.054
83


87867.055
84


87867.056
85


87867.057
86


87867.058
87


87867.059
88


87867.060
89


87867.061
90


87867.062
91


87867.063
92


87867.064
93


87867.065
94


87867.066
95


87867.067
96


87867.068
97


87867.069
98


87867.070
99


87867.071
100


87867.072
101


87867.073
102


87867.074
103


87867.075
104


87867.076
105


87867.077
106


87867.078
107


87867.079
108


87867.080
109


87867.081
110


87867.082
111


87867.083
112


87867.084
113


87867.085
114


87867.086
115


87867.087
116


87867.088
117


87867.089
118


87867.090
119


87867.091
120


87867.092
121


87867.093
122


87867.094
123


87867.095
124


87867.096
125


87867.097
126


87867.098
127


87867.099
128


87867.100
129


87867.101
130


87867.102
131


87867.103
132


87867.104
133


87867.105
134


87867.106
135


87867.107
136


87867.108
137


87867.109
138


87867.110
139


87867.111
140


87867.112
141


87867.113
142


87867.114
143


87867.115
144


87867.116
145


87867.117
146


87867.118
147


87867.119
148


87867.120
149


87867.121
150


87867.122
151


87867.123
152


87867.124
153


87867.125
154


87867.126
155


87867.127
156


87867.128
157


87867.129
158


87867.130
159


87867.131
160


87867.132
161


87867.133
162


87867.134
163


87867.135
164


87867.136
165


87867.137
166


87867.138
167


87867.139
168


87867.140
169


87867.141
170


87867.142
171


87867.143
172


87867.144
173


87867.145
174


87867.146
175

Æ


87867.147