[Federal Register Volume 60, Number 39 (Tuesday, February 28, 1995)]
[Notices]
[Pages 10871-10873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4800]



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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Association of Retail Travel Agents: Public 
Comments and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States publishes below the comments received on 
the proposed Final Judgment in United States v. Association of Retail 
Travel Agents, Civil Action No. 94-2305 (PF), United States District 
Court for the District of Columbia, together with the response of the 
United States to the comments.
    Copies of the response and the public comments are available on 
request for inspection and copying in room 3233 of the Antitrust 
Division, U.S. Department of Justice, Tenth Street and Pennsylvania 
Avenue, NW., Washington, DC. 20530, and for inspection at the Office of 
the Clerk of the United States District Court for the District of 
Columbia, United States Courthouse, Third Street and Constitution 
Avenue, NW., Washington, DC 20001.
Constance K. Robinson,
Director of Operations, Antitrust Division.

United States' Response to Public Comments

Introduction

In the United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Association of Retail 
Travel Agents, Defendant. [Civil No: 94-2305 (PF).]

    Pursuant to section 2(d) of the Antitrust Procedures and Penalties 
Act (``APPA''), 15 U.S.C. 16(d), the United States responds to public 
comments on the proposed Final Judgment submitted for entry in this 
civil antitrust proceeding.
    This action began on October 25, 1994, when the United States filed 
a Complaint alleging that the Association of Retail Travel Agents 
(hereinafter ``ARTA'') had entered into a contract, combination or 
conspiracy in restraint of trade in violation of section 1 of the 
Sherman Act (15 U.S.C. 1). The Complaint alleges that ARTA, a trade 
association, all of whose members are [[Page 10872]] travel agents, and 
its members agreed on commission levels and other terms of trade on 
which to transact business with providers of travel services, and 
encouraged and participated in a group boycott with the intent to 
induce certain providers of travel services to agree to certain 
commission levels and practices. The Complaint seeks an order enjoining 
ARTA from inviting or encouraging such concerted action by travel 
agents.
    Simultaneously with the filing of the Complaint, the United States 
filed a proposed Final Judgment, a Competitive Impact Statement 
(``CIS'') and a Stipulation signed by ARTA for entry of the proposed 
Final Judgment. The proposed Final Judgment resolves the antitrust 
violation alleged in the Complaint by enjoining ARTA from inviting or 
encouraging travel agents to deal with travel providers only on agreed 
terms. This prohibition includes any agreements on Specified commission 
levels. The proposed Final Judgment also prohibits ARTA from adopting 
or disseminating any rules, policies, or statements that have the 
purpose or effect of advocating or encouraging such a concerted refusal 
to deal. Finally, the proposed Final Judgment requires ARTA 
periodically to inform its members, officers and board members on the 
requirements of the proposed Final Judgments and the antitrust laws.
    As required by the APPA, on December 8, 1994, ARTA filed with this 
Court a description of written and oral communications on its behalf 
within the reporting requirements of section 15(g) of the APPA. A 
summary of the terms of the proposed Final Judgment and CIS, and 
directions for the submission of written comments relating to the 
proposal were published in the Washington Post for seven consecutive 
days beginning November 13, 1994. The proposed Final Judgment and CIS 
were published in the Federal Register on November 17, 1994. 59 FR 
59422 (1994).
    The 60-day period for public comments commenced on November 18, 
1994 and expired on January 16, 1995. The United States has received 
one comment on the proposed Final Judgment, from the Independent Travel 
Agencies of America Association, Inc. (``ITAA''). That comment is being 
filed with the Court along with this response.

I. Legal Standards Governing the Court's Public Interest 
Determination

    The procedural requirement of the Tunney Act are intended to 
eliminate secrecy from the consent decree process, to ensure that the 
Justice Department has access to information from the widest spectrum 
of persons with knowledge of the issues bearing on the consent decree, 
and to create a public record of the reasoning behind the government's 
consent to the decree. Hearings on H.R. 9703, H.R. 9947, and S. 782, 
Consumer Decree Bills Before the Subcomm. on Monopolies and Commercial 
Law of the House Judiciary Committee, 93rd Cong. 1st Sess. 40 (1977) 
(hereinafter ``Hearings'') (Statement of Senator Tunney.) See also 
United States v. Western Electric Co., 993 F.2d 1572 (D.C. (Cir.), 
cert. denied, 114 S. Ct. 487 (1993); United States v. American Tel. and 
Tel. Co., 552 F. Supp. 131, 148 (D.D.C. 1982), aff'd sub nom. Maryland 
v. United States, 460 U.S. 1001 (1983).
    The issue in a Tunney Act proceeding is whether the relief provided 
by the decree adequately protects the public interest. Although the 
Tunney Act requires the Court to make an independent determination that 
a decree is in the public interest, the Court's role is limited. 
Congress intended to preserve the viability of the consent decree 
process by avoiding lengthy and protracted judicial proceedings, and 
therefore, ``[t]he balancing of competing social and political 
interests affected by a proposed antitrust consent decree must be left, 
in the first instance, to the discretion of the Attorney General.'' 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981).
    The Court's public interest inquiry must be conducted in light of 
the ``violations set forth in the complaint.'' 15 U.S.C. 16(b). The 
enforcement agency's decision about what charges to bring in its 
complaint is a matter generally ``committed to the agency's absolute 
discretion.'' Heckler v. Chaney, 470 U.S. 821, 831 (1985).

II. Public Comments

    ITAA states that the proposed Final Judgment should be modified to 
require ARTA to agree (a) not to lobby or ``foster legislation'' that 
would discriminate against travel agencies that are not members of 
ARTA, and (b) not to use the press to discriminate, or to cause travel 
suppliers to discriminate, against non-ARTA travel agencies. ITAA's 
comment does not discuss how such remedies are related to, or would 
cure, the violations alleged in the Complaint, nor explain why the 
proposed remedies would otherwise be appropriate.
    Upon careful consideration, the government does not believe there 
is any reason to modify the proposed Final Judgment. As noted, the 
Complaint in this case alleges a boycott by ARTA to induce travel 
suppliers to agree to commission rates and other terms. It does not 
allege any activity directed toward or utilizing legislation or the 
press. Nor does it allege any activity involving or directed toward 
travel agents activity involving or directed toward travel agents that 
are not ARTA members. Moreover, it does not appear that the relief 
proposed by ITAA would prevent or mollify the violations that are 
alleged in the complaint. The lack of a connection between ITAA's 
proposed relief and any alleged antitrust violation is particularly 
apparent here because attempts to petition a legislature, standing 
alone, are normally not subject to the antitrust laws. See Eastern 
Railroads Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 
127 (1961).

III. Conclusion

    The decree provides relief entirely adequate to redress the harm 
caused by defendant's conduct. Entry of the decree is in the public 
interest. ITAA's comment and this response will be published in the 
Federal Register.

    Dated: February 14, 1995.
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.

    Respectfully submitted,
Roger W. Fones,
Donna N. Kooperstein,
Robert D. Young,
Nina B. Hale,
Attorneys, Transportation, Energy, and Agriculture Section, Antitrust 
Division, Department of Justice.

Certificate of Service

    I hereby certify that I have caused a copy of the foregoing UNITED 
STATES RESPONSE TO PUBLIC COMMENTS to be served upon Alexander Anolik, 
693 Sutter St., 6th Floor, San Francisco, CA 94102 by first class mail, 
postage prepaid.

    Dated: February 14, 1995.
Robert D. Young,
Transportation, Energy and Agriculture Section, Antitrust Division, 
Department of Justice.

November 1,1994.
Mr. Roger Fones,
Chief, Transportation, Energy and Agriculture Section, Antitrust 
Division, Judiciary Center Building, 555 4th Street, NW, Rm 9104, 
Washington, DC 20001

Re: United States of America v. Association of Retail Travel Agents 
Case Number 1:94CVO2305

    Dear Mr. Fones: I am General Counsel of the Independent Travel 
Agencies of America Association. We represent in excess of 5000 
independent travel agencies across the [[Page 10873]] country. We at 
ITAA and many of our members have read with great interest your 
release of Tuesday October 25, 1994, ``Travel Agent Trade 
Association Agrees To End Anticompetitive Practices'' as well as the 
``Complaint'' the ``Stipulation'' the proposed ``Final Judgment'' 
and the ``Competitive Impact Statement''.
    In accordance with the Section V of the Competitive Impact 
Statement on behalf of this association and our members we would 
like to register our comments as the Final Judgment when implemented 
will have a great effect upon many, if not all, of our members.
    The Final judgment should be modified as follows:
    1. ARTA should agree not to lobby or foster legislation in any 
state that would discriminate in any way against non-ARTA travel 
agencies.
    2. ARTA should agree not to use the press to discriminate 
against non-ARTA travel agencies.
    3. ARTA should agree not to use the press to cause suppliers of 
travel not to want to work with non-ARTA travel agencies.
    Thank you for your time and trouble and if you have any 
questions with regard to these proposed modifications please contact 
me directly.

    Sincerely,
Alan A. Benjamin
[FR Doc. 95-4800 Filed 2-27-95; 8:45 am]
BILLING CODE 4410-01-M