I
104TH CONGRESS
1ST SESSION
H. R. 1641
To supersede the Modification of Final Judgment entered August 24, 1982,
in the antitrust action styled United States v. Western Electric, Civil
Action No. 82–0192, United States District Court for the District of
Columbia; and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 16, 1995
Mr. CONYERS introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
To supersede the Modification of Final Judgment entered
August 24, 1982, in the antitrust action styled United
States v. Western Electric, Civil Action No. 82–0192,
United States District Court for the District of Colum-
bia; and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Antitrust Reform Act
of 1995’’.
SEC. 2. AUTHORIZATION FOR BELL OPERATING COMPANY
TO ENTER COMPETITIVE LINES OF BUSINESS.
(a) APPLICATION.—
(1) IN
GENERAL.—After the applicable date
specified in paragraph (2), a Bell operating company
may apply to the Attorney General for authorization,
notwithstanding the Modification of Final Judg-
ment—
(A) to provide alarm monitoring services,
or
(B) to provide interexchange telecommuni-
cations services.
The application shall describe with particularity the
nature and scope of the activity, and of each product
market or service market, and each geographic mar-
ket, for which authorization is sought.
(2) APPLICABLE
DATES.—For purposes of
paragraph (1), the applicable date after which a Bell
operating company may apply for authorization shall
be—
(A) the date of the enactment of this Act,
with respect to providing interexchange tele-
communications services, and
(B) the date that occurs 66 months after
the date of the enactment of this Act, with re-
spect to providing alarm monitoring services.
(3) PUBLICATION.—Not later than 10 days
after receiving an application made under paragraph
(1), the Attorney General shall publish the applica-
tion in the Federal Register.
(b) DETERMINATION
BY
THE
ATTORNEY
GEN-
ERAL.—
(1) COMMENT PERIOD.—Not later than 45 days
after an application is published under subsection
(a)(3), interested persons may submit written com-
ments to the Attorney General regarding the appli-
cation. Submitted comments shall be available to the
public.
(2) DETERMINATIONS.—(A) After the time for
comment under paragraph (1) has expired, but not
later than 180 days after receiving an application
made under subsection (a)(1), the Attorney General
shall issue a written determination with respect to
granting the authorization for which the Bell operat-
ing company has applied.
(B) Such determination shall be based on a pre-
ponderance of the evidence.
(C) Any person who would be threatened with
loss or damage as a result of the approval of the au-
thorization requested shall be permitted to partici-
pate as a party in the proceeding on which the de-
termination is based.
(D) The Attorney General shall approve the
granting of the authorization requested in the appli-
cation only to the extent that the Attorney General
finds that there is no substantial possibility that
such company or its affiliates could use monopoly
power to impede competition in the market such
company seeks to enter. The Attorney General shall
deny the remainder of the requested authorization.
(E) A determination that approves the granting
of any part of a requested authorization shall de-
scribe with particularity the nature and scope of the
activity, and of each product market or service mar-
ket, and each geographic market, to which approval
applies.
(3) PUBLICATION.—Not later than 10 days
after issuing a determination under paragraph (2),
the Attorney General shall publish in the Federal
Register a brief description of the determination.
(4) FINALITY.—A determination made under
paragraph (2) shall be final unless a civil action with
respect to such determination is timely commenced
under subsection (c)(1).
(5) AUTHORIZATION
GRANTED.—A requested
authorization is granted to the extent that—
(A)(i) the Attorney General approves
under paragraph (2) the granting of the au-
thorization, and
(ii) the approval is not vacated or reversed
as a result of judicial review authorized by sub-
section (c), or
(B) as a result of such judicial review of
such determination, the Attorney General ap-
proves the granting of the requested authoriza-
tion.
(c) JUDICIAL REVIEW.—
(1) COMMENCEMENT
OF
ACTION.—Not later
than 45 days after a determination by the Attorney
General is published under subsection (b)(3), the
Bell operating company that applied to the Attorney
General under subsection (a), or any person who
would be threatened with loss or damage as a result
of the determination regarding such company’s en-
gaging in the activity described in such company’s
application, may commence an action in the United
States Court of Appeals for the District of Columbia
Circuit against the Attorney General for judicial re-
view of the determination regarding the application.
(2) CERTIFICATION OF RECORD.—As part of
the answer to the complaint, the Attorney General
shall file in such court a certified copy of the record
upon which the determination is based.
(3) CONSOLIDATION OF ACTIONS.—The court
shall consolidate for judicial review all actions com-
menced under this subsection with respect to the ap-
plication.
(4) JUDGMENT.—(A) The court shall enter a
judgment after reviewing the determination in ac-
cordance with section 706 of title 5 of the United
States Code.
(B) A judgment—
(i) affirming any part of the determination
that approves granting all or part of the re-
quested authorization, or
(ii) reversing any part of the determination
that denies all or part of the requested author-
ization,
shall describe with particularity the nature and
scope of the activity, and of each product market or
service market, and each geographic market, to
which the affirmance or reversal applies.
filiated enterprise, to manufacture or provide tele-
communications equipment, or to manufacture cus-
tomer premises equipment, to the extent described in
a notification to the Attorney General that meets the
requirements of paragraph (2) and only if—
(A) such company submits to the Attorney
General, at any time after the date of the en-
actment of this Act, the notification described
in paragraph (2) and such additional material
and information described in such paragraph as
the Attorney General may request, and complies
with the waiting period specified in paragraph
(3), and
(B)(i) the waiting period specified in para-
graph (3) expires without the commencement of
a civil action by the Attorney General in accord-
ance with paragraph (4) to enjoin such com-
pany from engaging in the activity described in
such notification, or
(ii) before the expiration of such waiting
period, the Attorney General notifies such com-
pany in writing that the Attorney General does
not intend to commence such a civil action with
respect to such activity.
(2) NOTIFICATION.—The notification required
by paragraph (1) shall be in such form and shall
contain such documentary material and information
relevant to the proposed activity as is necessary and
appropriate for the Attorney General to determine
whether there is no substantial possibility that such
company or its affiliates could use monopoly power
to impede competition in the market such company
seeks to enter for such activity.
(3) WAITING PERIOD.—The waiting period re-
ferred to in paragraph (1) is the 1-year period be-
ginning on the date the notification required by such
paragraph is received by the Attorney General.
(4) CIVIL ACTION.—Not later than 1 year after
receiving a notification required by paragraph (1),
the Attorney General may commence a civil action in
an appropriate district court of the United States to
enjoin the Bell operating company from engaging in
the activity described in such notification, if the At-
torney General determines that there is a substantial
possibility that such company or its affiliates could
use monopoly power to impede competition in the
market it seeks to enter with respect to such activ-
ity.
(c) EXCEPTION FOR PREVIOUSLY AUTHORIZED AC-
TIVITIES.—Subsections (a) and (b) shall not prohibit a
Bell operating company from engaging, at any time after
the date of the enactment of this Act, in any activity as
authorized by an order entered by the United States Dis-
trict Court for the District of Columbia pursuant to sec-
tion VII or VIII(C) of the Modification of Final Judg-
ment, if—
(1) such order was entered on or before the
date of the enactment of this Act, or
(2) a request for such authorization was pend-
ing before such court on the date of the enactment
of this Act.
SEC. 5. PROHIBITIONS.
(a) ANTICOMPETITIVE DISCRIMINATION.—A Bell op-
erating company with monopoly power in any exchange
service market that is engaged (directly or through an af-
filiated enterprise) in an activity described in section
2(a)(1) or 4(a) shall not discriminate, in any relevant mar-
ket, between itself or an affiliated enterprise and any other
person, or between any 2 such other persons, with respect
to any product or service related to the provision or use
of a telecommunications service if the effect of such dis-
crimination may be to substantially lessen competition, or
to tend to create a monopoly, in any line of commerce.
(b) ANTICOMPETITIVE CROSS-SUBSIDIES.—A Bell
operating company with monopoly power in any exchange
service market shall not use (directly or indirectly) pro-
ceeds obtained from providing exchange service in such
market to subsidize, in any relevant market, an activity
described in section 2(a)(1) or 4(a) if the effect of such
subsidization may be to substantially lessen competition,
or to tend to create a monopoly, in any line of commerce.
SEC. 6. ENFORCEMENT.
(a) EQUITABLE POWERS OF UNITED STATES ATTOR-
NEYS.—It shall be the duty of the several United States
attorneys, under the direction of the Attorney General, to
institute proceedings in equity in their respective districts
to prevent and restrain violations of this Act.
(b) CRIMINAL LIABILITY.—Whoever knowingly en-
gages or knowingly attempts to engage in an activity that
is prohibited by section 3, 4, or 5 shall be guilty of a fel-
ony, and on conviction thereof, shall be punished to the
same extent as a person is punished upon conviction of
a violation of section 1 of the Sherman Act (15 U.S.C. 1).
(c) PRIVATE RIGHT OF ACTION.—Any person who is
injured in its business or property by reason of a violation
of this Act—
(1) may bring a civil action in any district court
of the United States in the district in which the de-
fendant resides or is found or has an agent, without
respect to the amount in controversy, and
(2) shall recover threefold the damages sus-
tained, and the cost of suit (including a reasonable
attorney’s fee).
The court may award under this section, pursuant to a
motion by such person promptly made, simple interest on
actual damages for the period beginning on the date of
service of such person’s pleading setting forth a claim
under this Act and ending on the date of judgment, or
for any shorter period therein, if the court finds that the
award of such interest for such period is just in the cir-
cumstance.
(d) PRIVATE INJUNCTIVE RELIEF.—Any person shall
be entitled to sue for and have injunctive relief, in any
court of the United States having jurisdiction over the
parties, against threatened loss or damage by a violation
of this Act, when and under the same conditions and prin-
ciples as injunctive relief is available under section 16 of
the Clayton Act (15 U.S.C. 26). In any action under this
subsection in which the plaintiff substantially prevails, the
court shall award the cost of suit, including a reasonable
attorney’s fee, to such plaintiff.
(e) JURISDICTION.—(1) Subject to paragraph (2),
the courts of the United States shall have exclusive juris-
diction to make determinations with respect to a duty,
claim, or right arising under this Act, other than deter-
minations authorized to be made by the Attorney General
under section 2(b)(2).
(2) The United States Court of Appeals for the Dis-
trict of Columbia shall have exclusive jurisdiction to review
determinations made under section 2(b)(2).
(3) No action commenced to assert or enforce a duty,
claim, or right arising under this Act shall be stayed pend-
ing any such determination by the Attorney General.
(f) SUBPOENAS.—In an action commenced under this
Act, a subpoena requiring the attendance of a witness at
a hearing or a trial may be served at any place within
the United States.
(g) APPLICABILITY OF OTHER LAWS TO ENFORCE-
MENT OF THIS ACT.—
(1) SECTION 5 OF THE CLAYTON ACT.—Section
5 of the Clayton Act (15 U.S.C. 16) shall apply with
respect to actions under this section brought by or
on behalf of the United States.
(2) ANTITRUST CIVIL PROCESS ACT.—Section
2(a) of the Antitrust Civil Process Act (15 U.S.C.
1311(a)) is amended—
(A) in paragraph (1) by striking ‘‘and’’ at
the end,
(B) in paragraph (2) by striking the period
at the end and inserting ‘‘and’’, and
(C) by adding at the end the following:
‘‘(3) title I of the Antitrust Reform Act of
1995.’’.
SEC. 7. DEFINITIONS.
For purposes of this Act:
(1) AFFILIATE.—The term ‘‘affiliate’’ means a
person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common own-
ership or control with, another person. For purposes
of this paragraph, to own refers to owning an equity
interest (or the equivalent thereof) of more than 50
percent.
(2) AFFILIATED ENTERPRISE.—The term ‘‘af-
filiated enterprise’’ has the meaning given it in the
Modification of Final Judgment.
(3) ALARM MONITORING SERVICE.—The term
‘‘alarm monitoring service’’ means a service that
uses a device located at a residence, place of busi-
ness, or other fixed premises—
(A) to receive signals from other devices lo-
cated at or about such premises regarding a
possible threat at such premises to life, safety,
or property, from burglary, fire, vandalism,
bodily injury, or other emergency, and
(B) to transmit a signal regarding such
threat by means of transmission facilities of a
Bell operating company or one of its affiliates
to a remote monitoring center to alert a person
at such center of the need to inform the cus-
tomer or another person or police, fire, rescue,
security, or public safety personnel of such
threat,
but does not include a service that uses a medical
monitoring device attached to an individual for the
automatic surveillance of an ongoing medical condi-
tion.
(4) ANTITRUST
LAWS.—The term ‘‘antitrust
laws’’ has the meaning given it in subsection (a) of
the first section of the Clayton Act (15 U.S.C.
12(a)), except that such term includes the Act of
June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13 et
seq.), commonly known as the Robinson Patman
Act, and section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) to the extent that such section
5 applies to unfair methods of competition.
(5) AUDIO
PROGRAMMING.—The term ‘‘audio
programming’’ means programming provided by, or
generally considered comparable to programming
provided by, a radio broadcast station.
(6) BELL
OPERATING
COMPANY.—The term
‘‘Bell operating company’’ means—
(A) Bell Telephone Company of Nevada,
Illinois Bell Telephone Company, Indiana Bell
Telephone Company, Incorporated, Michigan
Bell Telephone Company, New England Tele-
phone and Telegraph Company, New Jersey
Bell Telephone Company, New York Telephone
Company, U S West Communications Com-
pany, South Central Bell Telephone Company,
Southern Bell Telephone and Telegraph Com-
pany, Southwestern Bell Telephone Company,
The Bell Telephone Company of Pennsylvania,
The Chesapeake and Potomac Telephone Com-
pany, The Chesapeake and Potomac Telephone
Company of Maryland, The Chesapeake and
Potomac Telephone Company of Virginia, The
Chesapeake and Potomac Telephone Company
of West Virginia, The Diamond State Tele-
phone Company, The Ohio Bell Telephone
Company, The Pacific Telephone and Telegraph
Company, or Wisconsin Telephone Company,
(B) any successor or assign of any such
company, or
(C) any affiliate of any person described in
subparagraph (A) or (B).
(7) CABLE SYSTEM.—The term ‘‘cable system’’
has the meaning given such term in section 602(7)
of the Communications Act of 1934 (47 U.S.C.
522(7)).
(8) CARRIER.—The term ‘‘carrier’’ has the
meaning given such term in section 3 of the Commu-
nications Act of 1934 (47 U.S.C. 153).
(9) COMMERCIAL MOBILE SERVICES.—The term
‘‘commercial mobile services’’ has the meaning given
such term in section 332(d) of the Communications
Act of 1934 (47 U.S.C. 332(d)).
(10) CUSTOMER
PREMISES
EQUIPMENT.—The
term ‘‘customer premises equipment’’ means equip-
ment employed on the premises of a person (other
than a carrier) to originate, route, or terminate tele-
communications, and includes software integral to
such equipment.
(11) EXCHANGE ACCESS.—The term ‘‘exchange
access’’ means exchange services provided for the
purpose of originating or terminating interexchange
telecommunications.
(17) MODIFICATION
OF
FINAL
JUDGMENT.—
The term ‘‘Modification of Final Judgment’’ means
the order entered August 24, 1982, in the antitrust
action styled United States v. Western Electric, Civil
Action No. 82–0192, in the United States District
Court for the District of Columbia, and includes any
judgment or order with respect to such action en-
tered on or after August 24, 1982.
(18) OTHER
PROGRAMMING
SERVICES.—The
term ‘‘other programming services’’ means informa-
tion (other than audio programming or video pro-
gramming) that the person who offers a video pro-
gramming service makes available to all subscribers
generally. For purposes of the preceding sentence,
the terms ‘‘information’’ and ‘‘makes available to all
subscribers generally’’ have the same meaning such
terms have under section 602(13) of the Commu-
nications Act of 1934 (47 U.S.C. 522(13)).
(19) PERSON.—The term ‘‘person’’ has the
meaning given such term in subsection (a) of the
first section of the Clayton Act (15 U.S.C. 12(a)).
(20) STATE.—The term ‘‘State’’ means any of
the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, the Federated
States of Micronesia, the Republic of the Marshall
Islands, Palau, or any territory or possession of the
United States.
(21) TELECOMMUNICATIONS.—The term ‘‘tele-
communications’’ means the transmission of infor-
mation between points by electromagnetic means.
(22) TELECOMMUNICATIONS EQUIPMENT.—The
term ‘‘telecommunications equipment’’ means equip-
ment, other than customer premises equipment, used
by a carrier to provide a telecommunications service,
and includes software integral to such equipment.
(23) 
TELECOMMUNICATIONS
SERVICE.—The
term ‘‘telecommunications service’’ means the offer-
ing for hire of transmission facilities or of tele-
communications by means of such facilities.
(24) TRANSMISSION
FACILITIES.—The term
‘‘transmission facilities’’ means equipment (including
wire, cable, microwave, satellite, and fiber-optics)
that transmits information by electromagnetic means
or that directly supports such transmission, but does
not include customer premises equipment.
(25) VIDEO PROGRAMMING.—The term ‘‘video
programming’’ has the meaning given such term in
section 602(19) of the Communications Act of 1934
(47 U.S.C. 522(19)).
SEC. 8. RELATIONSHIP TO OTHER LAWS.
(a) MODIFICATION OF FINAL JUDGMENT.—This Act
shall supersede the Modification of Final Judgment, ex-
cept that this Act shall not affect—
(1) section I of the Modification of Final Judg-
ment, relating to AT&T reorganization,
(2) section II(A) (including appendix B) and
II(B) of the Modification of Final Judgment, relat-
ing to equal access and nondiscrimination,
(3) section IV(F) and IV(I) of the Modification
of Final Judgment, with respect to the requirements
included in the definitions of ‘‘exchange access’’ and
‘‘information access’’,
(4) section VIII(B) of the Modification of Final
Judgment, relating to printed advertising directories,
(5) section VIII(E) of the Modification of Final
Judgment, relating to notice to customers of AT&T,
(6) section VIII(F) of the Modification of Final
Judgment, relating to less than equal exchange ac-
cess,
(7) section VIII(G) of the Modification of Final
Judgment, relating to transfer of AT&T assets, in-
cluding all exceptions granted thereunder before the
date of the enactment of this Act, and
(8) with respect to the parts of the Modification
of Final Judgment described in paragraphs (1)
through (7)—
(A) section III of the Modification of Final
Judgment, relating to applicability and effect,
(B) section IV of the Modification of Final
Judgment, relating to definitions,
(C) section V of the Modification of Final
Judgment, relating to compliance,
(D) section VI of the Modification of Final
Judgment, relating to visitorial provisions,
(E) section VII of the Modification of
Final Judgment, relating to retention of juris-
diction, and
(F) section VIII(I) of the Modification of
Final Judgment, relating to the court’s sua
sponte authority.
(b) ANTITRUST LAWS.—Except as provided in sec-
tion 6(g), nothing in this Act shall be construed to modify,
impair, or supersede the applicability of any of the anti-
trust laws.
(c) FEDERAL, STATE, AND LOCAL LAW.—(1) Except
as provided in paragraph (2), this Act shall not be con-
strued to modify, impair, or supersede Federal, State, or
local law unless expressly so provided in this Act.
(2) This Act shall supersede State and local law to
the extent that such law would impair or prevent the oper-
ation of this Act.
(d) CUMULATIVE PENALTY.—Any penalty imposed,
or relief granted, under this Act shall be in addition to,
and not in lieu of, any penalty or relief authorized by any
other law to be imposed with respect to conduct described
in this Act.
Æ
HR 1641 IH——2