[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15453]


[[Page Unknown]]

[Federal Register: June 27, 1994]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE
Antitrust Division

 

Proposed Final Judgment and Competitive Impact Statement United 
States v. MCI Communications Corporation and BT Forty-Eight Company 
``(NewCo'')

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h) that a proposed Final Judgment, 
Stipulation and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States v. MCI Communications Corporation and BT Forty-Eight Company 
(``NewCo''), Civil Action No. 94 1317(TFH). The proposed Final Judgment 
is subject to approval by the Court after the expiration of the 
statutory 60-day public comment period and compliance with the 
Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h).
    The Complaint alleges that the proposed sale of 20% of the voting 
shares of MCI Communications Corporation (``MCI'') to British 
Telecommunications plc (``BT''), and the proposed formation of a joint 
venture, presently known as BT Forty-Eight Company (``NewCo''), between 
MCI and BT to provide certain international telecommunications 
services, would violate Section 7 of the Clayton Act, as amended, 15 
U.S.C. 18, in the markets for international telecommunications services 
between the United States and the United Kingdom and for global 
seamless telecommunications services.
    The proposed Final Judgment includes three categories of 
substantive obligations and restrictions. First, it requires the 
defendants, MCI and NewCo, to disclose certain information about the 
telecommunications services that MCI and NewCo receive from BT or 
provide together with BT. This ongoing disclosure is a precondition for 
MCI and NewCo to provide international telecommunications services, 
including enhanced telecommunications and global seamless 
telecommunications services.
    Second, the proposed Final Judgment prohibits MCI and NewCo from 
receiving from BT certain non-public and confidential information 
provided to BT by other United States telecommunications service 
providers in connection with the arrangements between such United 
States providers and BT to provide telecommunications services, 
including both international correspondent relationships and 
interconnection with BT in the United Kingdom.
    Finally, the proposed Final Judgment prohibits MCI and NewCo from 
providing telecommunications services or facilities to BT to enable it 
to engage in the practice known as ``international simple resale'' from 
the United Kingdom to the United States, which would involve bypassing 
existing correspondent relationships to send BT's traffic to the United 
States, until two conditions are met. First, all qualified United 
States telecommunications services providers that had applied for 
licenses in the United Kingdom to engage in international simple resale 
on or before December 1, 1993 must have been granted such licenses. 
Second, all such licensed providers must be afforded the opportunity to 
interconnect with BT on standard, published and nondiscriminatory 
terms.
    Public comment is invited within the statutory 60-day comment 
period. Such comments, and the responses thereto, will be published in 
the Federal Register and filed with the Court. Comments should be 
directed to Richard L. Rosen, Chief, Communications & Finance Section, 
Antitrust Division, Room 8104, 555 Fourth Street, NW., Washington, DC 
20001 (202-514-5621).
    Copies of the Complaint, proposed Final Judgment and Competitive 
Impact Statement are available for inspection in Room 3233 of the 
Antitrust Division, Department of Justice, Tenth Street and 
Pennsylvania Avenue, NW., Washington, DC 20530 (202-514-2481) and at 
the office of the Clerk of the United States District Court for the 
District of Columbia, Third Street and Constitution Avenue, NW., 
Washington, DC 20001.
    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.
Constance K. Robinson
Director of Operations, Antitrust Division.

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. MCI Communications 
Corporation and BT Forty-Eight Company (``NewCo''), Defendants.

Civil Action No.-------------------------------------------------------

Filed:-----------------------------------------------------------------
Stipulation
    It is stipulated and agreed by and between the undersigned parties, 
by their respective attorneys, that:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto and venue of this action is 
proper in the District of Columbia. Defendants are hereby estopped from 
contesting the entry or enforceability of the Final Judgment on the 
ground that the Court lacks venue or jurisdiction over the subject 
matter of the action or over any defendant. For purposes of this 
stipulation defendant BT Forty-Eight Company, known as ``NewCo,'' and 
any reference to NewCo herein, shall be understood to have the same 
meaning as the term ``NewCo'' in the attached proposed Final Judgment.
    2. The parties consent that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion, at any time after compliance with 
the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. 16), and without further notice to any party or other 
proceedings, provided that plaintiff has not withdrawn its consent. 
Plaintiff may withdraw its consent to entry of the Final Judgment at 
any time before it is entered, by serving notice on the defendants and 
by filing that notice with the Court.
    3. Pending entry of the Final Judgment, defendants shall abide by 
and comply with the provisions of the Final Judgment following 
consummation of the Amended and Restated Investment Agreement dated 
January 31, 1994 (and related agreements) or any similar arrangement 
between any defendant and British Telecommunications plc (``BT''). This 
obligation shall not be affected by the timing of execution of any 
agreements between defendants and BT requiring BT to provide to MCI and 
NewCo information needed for compliance with the requirements of 
Sections II.A.1-6. Such agreements, which shall be executed prior to 
the entry of the Final Judgment, shall be consistent with Sections 
II.B-D of the Final Judgment and shall be provided to the Department of 
Justice upon execution.
    4. The agreements governing disclosure to United States 
corporations, referred to in Section IV.E of the Final Judgment, will 
provide that: (1) Non-public information received from the Department 
of Justice is intended for use to complain or provide information to 
any government authorities in the United States or the United Kingdom, 
and to identify and evaluate internally any conduct that may be made 
the subject of such a complaint or provision of information, but may 
not be used for the sale or marketing of the corporation's services; 
(2) such information may not be disclosed to persons other than 
officers, directors, employees, agents, or contractors of the 
corporation and to government authorities in the United States or the 
United Kingdom (including, but not limited to, the Federal 
Communications Commission and OFTEL); (3) all persons to whom the 
information is disclosed will be advised of the limitations on use and 
disclosure of the information; and (4) if unauthorized use or 
disclosure occurs, the Department of Justice can revoke or otherwise 
limit the corporation's further access to such information, unless the 
Department decides, in its sole discretion, that revocation of access 
is inappropriate. Plaintiff, in its discretion, may add further 
conditions to such agreements. Any actions taken by the Department to 
redress unauthorized use or disclosure will not diminish or create any 
ability in NewCo or MCI to pursue separately against persons receiving 
such information from the Department any legal remedies for 
unauthorized use or disclosure.
    5. Plaintiff and defendants are presently aware that the entities 
listed in Attachment A to this Stipulation are, or based upon the best 
available information appear to be, qualified United States 
international telecommunications providers as defined in Section II.E 
of the Final Judgment. Any other persons (including corporations or 
other legal entities) that make known to the Department of Justice 
before the entry of the Final Judgment that they meet the standards for 
qualification under Section II.E of the Final Judgment shall be added 
to Attachment A of this Stipulation if the Department concludes that 
such persons are qualified United States international 
telecommunications providers within the meaning of Section II.E. The 
Department shall publish the names of such persons in its response to 
public comments under the Antitrust Procedures and Penalties Act.
    6. Six months prior to the expiration of the Final Judgment, 
defendants shall inform the Department of Justice in writing whether 
they will continue or discontinue the operation of NewCo beyond the 
term of the Final Judgment.
    7. In the event plaintiff withdraws its consent to entry of the 
proposed Final Judgment or if the proposed Final Judgment is not 
entered pursuant to this Stipulation, this Stipulation shall be of no 
effect whatsoever and its making shall be without prejudice to any 
party in this or any other proceeding, except that if the Court decides 
not to enter the Final Judgment, and the defendants and British 
Telecommunications plc have consummated pursuant to paragraph 3 of this 
Stipulation, defendants shall abide by and comply with the terms of the 
Final Judgment until the conclusion of this action, unless the parties 
otherwise agree or the Court otherwise orders.
    8. The Stipulation and the Final Judgment to which it relates are 
for settlement purposes only and do not constitute an admission by 
defendants in this or any other proceedings that Section 7 of the 
Clayton Act, 15 U.S.C. Sec. 18, as amended, or any other provision of 
law, has been violated.

    Dated: June 10, 1994.

    For Plaintiff United States of America:
Anne K. Bingaman,
Assistant Attorney General.
Steven C. Sunshine,
Deputy Assistant Attorney General.
Diane P. Wood,
Deputy Assistant Attorney General.
Constance K. Robinson,
Director of Operations.
U.S. Department of Justice,
Antitrust Division.
Richard L. Rosen,
Chief, Communications and Finance Section.
Jonathan M. Rich,
Assistant Chief, Communications and Finance Section.
Carl Willner,
D.C. Bar #412841.
Sara J. DeSanto,
John J. Sciortino,
Attorneys, U.S. Department of Justice, Antitrust Division, 555 4th 
Street, NW., Washington, DC 20001, (202) 514-5813.

    For Defendant MCI Communications Corporation: Jenner & Block.
    By:
Michael H. Salbursy,
D.C. Bar #365888, 601 13th Street, NW., Washington, DC 20005,(202) 639-
6000.
Anthony C. Epstein,
D.C. Bar #250829, 601 13th Street, NW., Washington, DC 20005, (202) 
639-6000.

    For Defendant at Forty-Eight Company (NEWCO''): Hogan & Hartson
    By:
Janet L. McDavid,
D.C. Bar #204073, 555 l3th Street, NW., Washington, DC 20004, (202) 
637-8780 (direct), (202) 637-5600 (main).
David J. Saylor,
D.C. Bar #96826, 555 l3th Street, NW., Washington, D.C. 20004, (202) 
637-8679 (direct), (202) 637-5600 (main).

Stipulation Approved for Filing
Done this ______ day of ____________, 1994.

----------------------------------------------------------------------
United States District Judge
Disclosure Pursuant to Rule 108(k)
    Pursuant to Rule 108(k) of the Local Rules of this Court, the 
following is a list of individuals entitled to be notified of the entry 
of the foregoing Stipulation and of the entry of the proposed Final 
Judgment.

Michael H. Salbury, Escquire, Jenner & Block, 601 13th Street, 
NW.Washington, DC 20005; Counsel for Defendant MCI.

Janet L. McDavid, Esquire, Hogan & Hartson, 555 l3th Street, NW., 
Washignton, DC 20004
Jack Greenberg, Esquire, Syncordia Legal Department, Two Paces West, 
Suite 1500, 2727 Paces Ferry Road, NW., Atlanta, Georgia 30339; Counsel 
for Defendant BT Forty-Eight Company (``NewCo'')
Carl Willner, Esquire, Attorney, Communications & Finance Section, 
Antitrust Division, U.S. Department of Justice, 555 4th Street, NW. 
Washington, DC 20001; Counsel for Plaintiff the United States.
Attachment A
    List of entities entities pursuant to paragraph 5 of this 
Stipulation.

ACC Global Corp., including ACC Long Distance UK Ltd.
Ameritel Communications Inc., including Amera Tela Communications (UK) 
Ltd.
AT&T Corporation, including AT&T (UK) Ltd.
City of London Telecommications Ltd. (COLT)
IDB Communications Group, Inc. including WorldCom International, Inc.
MFS Communications Co. Inc., including MFS Communications Ltd.
Sprint Corporation, including Sprint Holdings (UK) Ltd.

United States District Court for the District of Columbia

    UNITED STATES OF AMERICA, Plaintiff, v. MCI COMMUNICATIONS 
CORPORATION and BT FORTY-EIGHT COMPANY (``NewCo''), Defendants.

Civil Action No.-------------------------------------------------------

Filed:-----------------------------------------------------------------

Final Judgment
    Whereas, plaintiff United States of America, filed its Complaint on 
June 15, 1994,
    And whereas, plaintiff and defendants, by their respective 
attorneys, have consented to the entry of this Final Judgment without 
trial or adjudication on any issue of fact or law,
    And whereas, defendants have further consented after any 
consummation as defined in the Stipulation entered into by defendants 
and the United States on June 10, 1994, to be bound by the provisions 
of this Final Judgment pending its approval by the Court,
    And whereas, plaintiff the United States believes that entry of 
this Final Judgment is necessary to protect competition in United 
States telecommunications and enhanced telecommunications markets,
    Therefore, it is hereby ordered, adjudged, and decreed:
I
Jurisdiction
    This Court has jurisdiction of the subject matter of this action 
and of each of the parties consenting to this Final Judgment. The 
Complaint states a claim upon which relief may be granted against the 
defendants under Section 7 of the Clayton Act, 15 U.S.C. 18, as 
amended.
II
Substantive Restrictions and Obligations
    A. MCI and NewCo shall not offer, supply, distribute, or otherwise 
provide in the United States any telecommunications or enhanced 
telecommunications service that makes use of telecommunications 
services provided by BT in the United Kingdom or between the United 
States and United Kingdom, unless the following information is 
disclosed in the United States by MCI or Newco or such disclosure is 
expressly waived, in whole or in part, by plaintiff through written 
notice to defendants and the Court.
    1. By NewCo, within 30 days following any agreement or change to an 
agreement--The prices, terms, and conditions, including any applicable 
discounts, on which telecommunications services are provided by BT to 
NewCo in the United Kingdom pursuant to interconnection agreements;
    2. By NewCo, within 30 days following any agreement or change to an 
agreement, or the provision of service absent any specific agreement--
The prices, terms, and conditions, including any applicable discounts, 
on which telecommunications services, other than those provided 
pursuant to interconnection agreements made under Condition 13 of BT's 
license, are provided by BT to NewCo in the United Kingdom for use by 
NewCo in the supply of telecommunications or enhanced 
telecommunications services between the United States and United 
Kingdom, or are provided by BT in the United Kingdom in conjunction 
with such NewCo services where BT is acting as the distributor for 
NewCo;
    3. By MCI, with respect to international switched 
telecommunications or enhanced telecommunications services jointly 
provided by BT and MCI on a correspondent basis between the United 
States and United Kingdom, and to the extent not already disclosed 
publicly pursuant to the rules and regulations of the Federal 
Communications Commission, or otherwise to the corporations referred to 
in Section IV.E.
    (i) within 30 days following any agreement or change to an 
agreement, or the provision of service absent any specific agreement, 
the accounting and settlement rates and other terms and conditions for 
the provisions of each such service; and
    (ii) on an annual basis, for any such services for which more than 
one accounting and settlement rate may be applicable (e.g., rates for 
peak and off-peak service), or services with different accounting and 
settlement rates which are pooled or otherwise combined for calculating 
proportionate returns, if other United States international 
telecommunications providers do not have or receive data sufficient to 
determine whether they are receiving their appropriate share of return 
traffic in each accounting rate category (e.g., the total volumes of 
United States traffic to BT, and total volumes of BT traffic to the 
United States, for each type of traffic with a different accounting 
rate), MCI's minutes of traffic to and from BT in each accounting rate 
category;
    4. By NewCo, on a semiannual basis--Schedules of telecommunications 
services provided by BT to NewCo in the United Kingdom for use by NewCo 
in the supply of telecommunications or enhanced telecommunications 
services between the United States and the United Kingdom, or provided 
by BT in the United Kingdom in conjunction with such NewCo services 
where BT is acting as the distributor for NewCo, showing:
    (i) the types of circuits (including capacity) and 
telecommunications services provided;
    (ii) the actual average time intervals between order and delivery 
of circuits (separately indicating average intervals for analog 
circuits, digital circuits up to 2 megabits, and digital circuits 2 
megabits and larger) and telecommunications services; and
    (iii) the number of outages and actual average time intervals 
between fault report and restoration of service for circuits 
(separately indicating average intervals for analog and for digital 
circuits) and telecommunications services;

but excluding the identifies of individual customers of BT, MCI, or 
NewCo or the location of circuits or telecommunications services 
dedicated to the use of such customers;
    5. By MCI--Schedules showing:
    (i) on a semiannual basis, separately for analog international 
private line circuits (IPLCs) and for digital IPLCs jointly provided by 
BT and MCI between the United States and the United Kingdom, the actual 
average time intervals between order and delivery by BT;
    (ii) on an annual basis, separately for analog IPLCs and for 
digital IPLCs jointly provided by BT and MCI between the United States 
and the United Kingdom, the number of outages and actual average time 
intervals between fault report and restoration of service, for any 
outages that occurred in the international facility, in the cablehead 
or earth station outside the United States, or the network of a 
telecommunications provider outside the United States, indicating 
separately the number of outages and actual average time intervals to 
restoration of service in each such area; and
    (iii) on a semiannual basis, for circuits used to provide 
international switched telecommunications services or enhanced 
telecommunications services on a correspondent basis between the United 
States and the United Kingdom, the average number of circuit 
equivalents available to MCI during the busy hour;
    6. By NewCo, within 30 days of receipt of any information described 
herein--Information provided by BT to MCI or NewCo about planned and 
authorized improvements or changes to BT's United Kingdom public 
telecommunications system operated pursuant to its license that would 
affect interconnection arrangements between BT and either NewCo or 
other licensed operators, provided that if MCI receives any such 
information from BT separately from NewCo, MCI shall similarly be 
required to disclose such information in the same manner as NewCo.
    The obligations of this Section II.A shall not extend to the 
disclosure of intellectual property or other proprietary information of 
the defendants or BT that has maintained as confidential by its owner, 
except to the extent that it is of a type expressly required to be 
disclosed herein, or is necessary for licensed operators to 
interconnect with BT's United Kingdom public telecommunications system 
operated pursuant to its license or for United States international 
telecommunications providers to use BT's international 
telecommunications or enhanced telecommunications correspondent 
services.
    B. MCI and NewCo, and any person who may be designated by MCI to 
sit on the Board of Directors of BT, shall not receive from BT, or from 
any persons designated by BT to sit on the Board of Directors of MCI, 
any information that is identified as proprietary by United States 
telecommunications or enhanced telecommunications service providers 
(and maintained as confidential by them) and is obtained by BT from 
such providers as the result of BT's provision of interconnection or 
other telecommunications services to them in the United Kingdom.
    C. MCI and NewCo, and any person who may be designated by MCI to 
sit on the Board of Directors of BT, shall not receive from BT, or from 
any persons designated by BT to sit on the Board of Directors of MCI, 
any confidential, non-public information obtained as a result of BT's 
correspondent relationships with other United States international 
telecommunications or enhanced telecommunications service providers, 
except to the extent necessary for MCI to comply with its obligations 
under Section II.A.3(ii) concerning disclosure of the total volume of 
traffic (but not the individual traffic volumes for other providers) 
received by BT from the United States and sent by BT to the United 
States that is subject to proportionate return, or under Section II.A.5 
(but not including individual information on other providers).
    D. MCI, and any person who may be designated by MCI to sit on the 
Board of Directors of BT, shall not seek or accept from BT, or from any 
persons designated by BT to sit on the Board of Directors of MCI, any 
non-public information about the future prices or pricing plans of any 
provider of international telecommunications services between the 
United States and the United Kingdom with which MCI competes in the 
provision of such services.
    E. Neither MCI nor NewCo shall provide to BT any telecommunications 
facilities or services to be used by BT for international simple resale 
between the United Kingdom and the United States, until the following 
conditions have occurred or unless such conditions are expressly waived 
in whole or part by plaintiff through written notice to defendants and 
the Court:
    1. All qualified United States international telecommunications 
providers (including their United Kingdom subsidiaries or affiliates) 
that have applied for licenses in the United Kingdom that would include 
the ability to provide international simple resale between the United 
States and the United Kingdom on or before December 1, 1993 have been 
granted licenses to provide international simple resale by the 
responsible governmental authorities in the United Kingdom; and
    2. All such United States international telecommunications 
providers licensed to provide international simple resale in the United 
Kingdom have been offered the opportunity to interconnect with BT's 
telecommunications network in the United Kingdom operated pursuant to 
its license, on standard, nondiscriminatory and published terms 
(including the locations where interconnection is offered) and with 
reasonable arrangements for any other necessary technical aspects of 
interconnection, enabling them to engage in international simple resale 
without limitation on the amount of traffic carried.

``Qualified United States international telecommunications providers,'' 
for purposes of this Section II.E, shall mean all United States 
international telecommunications providers as of December 1, 1993, 
except for any provider that (a) has withdrawn its license application 
to provide international simple resale, (b) has been found by United 
Kingdom government authorities to have failed to pursue effectively its 
license application or to have failed to meet the requirements for a 
license to provide international simple resale, so long as such 
requirements are applicable to all persons that seek to provide 
international simple resale between the United Kingdom and the United 
States, (c) has, in the judgment of the plaintiff, absent any finding 
by United Kingdom government authorities, failed to pursue effectively 
its license application, (d) has voluntarily modified its license 
application after December 1, 1993 (other than to make modifications 
requested by United Kingdom government authorities) to such a 
substantial extent that it is subject to additional publication and can 
no longer be pursued on its original schedule; (e) has been offered a 
license that would allow it to commence providing international simple 
resale between the United States and the United Kingdom and has not 
accepted such license; or (f) has failed, after the grant of a license, 
to supply promptly an adequate statement of the necessary information 
required for interconnection. A list of the entities that plaintiff the 
United States and defendants presently understand to be qualified under 
this Section II.E is included in the Stipulation entered into by 
defendants and plaintiff on June 10, 1994.
III
Applicability and Effect
    The provisions of this Final Judgment shall be binding upon 
defendants, their affiliates, subsidiaries, successors and assigns, 
officers, agents, servants, employees, and attorneys, and upon those 
persons in active concert or participation with them who receive actual 
notice of this Final Judgment by personal service or otherwise. 
Defendants shall cooperate with the United States Department of Justice 
in ensuring that the provisions of this Final Judgment are carried out. 
Neither this Final Judgment nor any of its terms or provisions shall 
constitute any evidence against, an admission by, or an estoppel 
against the defendants. The effective date of this Final Judgment shall 
be the date upon which it is entered.
IV
Definitions
    For the purposes of this Final Judgment:
    A. ``Affiliate'' and ``subsidiary'' when used in connection with 
MCI, do not include NewCo and BT, when used in connection with BT do 
not include NewCo and MCI, and when used in connection with NewCo do 
not include BT or MCI (but do include all entities in which NewCo has 
an ownership interest or which are subject to its control, or are 
jointly owned and controlled by BT and MCI). Nor shall BT be deemed to 
be a person in active concert or participation with NewCo or MCI for 
purposes of this Final Judgment.
    B. ``BT'' means British Telecommunications plc, and any entity 
owned or controlled by BT, apart from NewCo and MCI. BT does not 
include any MCI employees who may serve on BTs Board of Directors.
    C. ``Correspondent'' means a bilaterally negotiated arrangement 
between a provider of telecommunications services in the US or the UK 
and a provider of telecommunications services in the other of the US or 
the UK for provision of an international telecommunications or enhanced 
telecommunications service, by which each party undertakes to terminate 
in its country traffic originated by the other party. A service managed 
by NewCo, and provided without correspondent relationships with any 
other provider, shall not be deemed to constitute a correspondent 
service.
    D. ``Defendant'' or ``defendants'' means MCI and NewCo.
    E. ``Disclose,'' for purposes of II.A.1-6, means disclosure to 
the United States Department of Justice Antitrust Division, which may 
further disclose such information to any United States corporation that 
directly or through a subsidiary or affiliate holds or has applied for 
a license from either the United States Federal Communications 
Commission or the United Kingdom Department of Trade and Industry to 
provide international telecommunications services between the United 
States and the United Kingdom. Disclosure by the Department of Justice 
to any corporation described above shall be made only upon agreement by 
such corporation, in the form prescribed in the Stipulation entered 
into by defendants and the United States on June 10, 1994, not to 
disclose any non-public information to any other person, apart from 
governmental authorities in the United States or United Kingdom. Where 
NewCo is required to disclose, in Section II.A, particular 
telecommunications services provided, this shall include disclosure of 
the identity of each of the services, and reasonable detail about each 
of the services to the extent not already published elsewhere, but 
shall not require disclosure of underlying facilities used to provide a 
particular service that is offered on a unitary basis, except to the 
extent necessary to identify the service and the means of 
interconnection with the service.
    F. ``Enhanced telecommunications service'' means any 
telecommunications service that involves as an integral part of the 
service the provision of features or capabilities that are additional 
to the conveyance (including switching) of the information transmitted. 
Although enhanced telecommunications services use telecommunications 
services for conveyance, their additional features or capabilities do 
not lose their enhanced status as a result.
    G. ``Facility'' means: (i) any line, trunk, wire, cable, tube, 
pipe, satellite, earth station, antenna or other means that is directly 
used or designed or adapted for use in the conveyance, transmission, 
origination or reception of a telecommunications or enhanced 
telecommunications service; (ii) any switch, multiplexer, or other 
equipment or apparatus that is directly used or designed or adapted for 
use in connection with the conveyance, transmission, origination, 
reception, switching, signaling, modulation, amplification, routing, 
collection, storage, forwarding, transformation, translation, 
conversion, delivery or other provision of any telecommunications or 
enhanced telecommunications service, and (iii) any structure, conduit, 
pole, or other thing in, on, by, or from which any facility as 
described in (i) or (ii) is or may be installed, supported, carried or 
suspended.
    H. ``Interconnection,'' ``interconnect'' and ``interconnection 
agreement'' mean interconnection under Condition 13 of BT's License (or 
any subsequent or other condition governing interconnection that may be 
imposed by United Kingdom government authorities).
    I. ``International simple resale'' means the transmission through 
international private or leased telecommunications facilities, or by 
any other means of telecommunications in which international usage is 
not measured, of international voice or data telecommunications traffic 
(excluding capabilities in addition to conveyance and such switching, 
processing, data storage or protocol conversion as is necessary for the 
conveyance of information in real time) that is carried over the public 
switched telecommunications network in both the country where it 
originates and the country where it terminates.
    J. ``MCI'' means MCI Communications Corporation, and any entity 
owned or controlled by MCI, apart from NewCo. MCI does not include any 
BT employees who may serve on MCI's Board of Directors.
    K. ``NewCo'' means BT Forty-Eight Company, the joint venture of MCI 
and BT to be created pursuant to the terms of the Joint Venture 
Agreement entered into by MCI and BT as of August 4, 1993 (including 
any subsequent modifications or amendments to such agreement), 
regardless of the name under which it may subsequently do business, and 
any subsidiary, affiliate, predecessor (whether the predecessor is 
jointly owned by MCI and BT or separately owned by either of them), 
successor, or assign of such joint venture, or any other entity jointly 
owned by MCI and BT and having among its purposes substantially the 
same purposes as described for NewCo in the Joint Venture Agreement. 
NewCo shall not be deemed to include BT or any of its affiliates in 
which NewCo does not have an ownership interest.
    L. ``Telecommunications service'' means the conveyance, by 
electrical, magnetic, electromagnetic, electromechanical or 
electrochemical means (including fiber-optics), of information 
consisting of:

--Speech, music and other sounds;
--Visual images;
--Signals serving for the impartation (whether as between persons and 
persons, things and things or persons and things) of any matter, 
including but not limited to data, otherwise than in the form of sounds 
or visual images;
--Signals serving for the actuation or control of machinery or 
apparatus; or
--Translation or conversion that does not alter the form or content of 
information as received from that which is originally sent.

``Convey'' and ``conveyance'' include transmission, switching, and 
receiving, and cognate expressions shall be construed accordingly. A 
telecommunications service includes all facilities used in providing 
such service, and the installation, maintenance, repair, adjustment, 
replacement and removal of any such facilities. A service that is 
considered a ``telecommunications service'' under this definition 
retains that status when it is used to provide an enhanced 
telecommunications service, or when used in combination with equipment, 
facilities or other services.
    M. ``United Kingdom'' and ``UK'' mean England, Wales, Scotland, 
Northern Ireland and all territories, dependencies, or possessions of 
the United Kingdom (excluding the Isle of Man) for which international 
telecommunications traffic is not normally separately reported to the 
United States Federal Communications Commission by United States 
telecommunications carriers.
    N. ``United States'' and ``US'' mean the fifty states, the District 
of Columbia, and all territories, dependencies, or possessions of the 
United States.
    O. ``United States international telecommunications provider'' 
means any person or entity actually providing international 
telecommunications services or enhanced telecommunications services to 
users in the United States, and that is incorporated in the United 
States, or that is ultimately controlled by United States persons 
within the meaning of 16 CFR 801.1.
V
Visitorial and Compliance Provisions
    A. MCI and NewCo each agree to maintain sufficient records and 
documents to demonstrate compliance with the requirements of this Final 
Judgment.
    B. For the purposes of determining or securing compliance of 
defendants with this Final Judgment, duly authorized representatives of 
the plaintiff, upon written request of the Attorney General or the 
Assistant Attorney General in charge of the Antitrust Division, and on 
a reasonable notice to the relevant defendant, shall have access 
without restraint or interference to MCI and to NewCo in the United 
States:
    1. during their office hours to inspect and copy all records and 
documents in their possession or control relating to any matters 
contained in this Final Judgment; and
    2. to interview or take sworn testimony from their officers, 
directors, employees, trustees, or agents, who may have counsel 
present, relating to any matter contained in this Final Judgment. 
Provided, however, that NewCo officers and directors who are employees 
of BT shall be required to produce only NewCo documents and to provide 
information only concerning NewCo.
    C. NewCo consents to make available to duly authorized 
representatives of the plaintiff, for the purposes of determining 
whether defendants have complied with the requirements of this Final 
Judgment and to secure their compliance:
    1. at the premises of the Antitrust Division in Washington, DC., 
within sixty days of receipt of written request by the Attorney General 
or Assistant Attorney General in charge of the Antitrust Division, 
records and documents in the possession or control of NewCo or any 
NewCo affiliate or subsidiary, wherever located; and
    2. for interviews or sworn testimony, in the United States if 
requested by plaintiff but subject to their reasonable convenience, 
officers, directors, employees, trustees or agents, who may have 
counsel present. Provided, however, that NewCo officers and directors 
who are employees of BT shall be required to produce only NewCo 
documents and to provide information only concerning NewCo.
    D. Upon the written request of the Attorney General or the 
Assistant Attorney General in charge of the Antitrust Division, a 
defendant shall submit written reports, under oath if requested, 
relating to any of the matters contained in this decree.
    E. No information or documents obtained by the means provided in 
this Section V shall be divulged by the plaintiff to any person other 
than the United States Department of Justice, the Federal 
Communications Commission, and their employees, agents and contractors, 
except in the course of legal proceedings to which the United States is 
a party, or for the purpose of securing compliance with this decree, or 
for identifying to the United Kingdom Office of Telecommunications or 
other appropriate United Kingdom regulatory agencies conduct by 
defendants or BT that may violate United Kingdom law or regulations or 
BT's license to operate its United Kingdom public telecommunications 
system (but no documents received from defendants pursuant to this 
Section V shall be disclosed to United Kingdom authorities by the 
Department of Justice), or as otherwise required by law. Prior to 
divulging any documents, interviews or sworn testimony obtained 
pursuant to this Section V to the Federal Communications Commission, 
plaintiff will obtain assurances that such materials are protected from 
disclosure to third parties to the extent permitted by law.
VI
Retention of Jurisdiction
    Jurisdiction is retained by this Court for the purposes of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for such further orders or directions as may be necessary or 
appropriate to carry out or construe this decree, to modify or 
terminate any of its provisions, to enforce compliance, and to punish 
any violations of its provisions.
VII
Modification
    Any party to this Final Judgment may seek modification of its 
substantive terms and obligations, and other parties to the Final 
Judgment shall have an opportunity to respond to such a motion. If the 
motion is contested by another party, it shall only be granted if the 
movant makes a clear showing that (i) a significant change in 
circumstances or significant new event subsequent to the entry of the 
Final Judgment requires modification of the Final Judgment to avoid 
substantial harm to competition or consumers in the United States, or 
to avoid substantial hardship to defendants, and (ii) the proposed 
modification is (a) in the public interest, (b) suitably tailored to 
the changed circumstances or new events and would not result in serious 
hardship to any defendant, and (c) consistent with the purposes of the 
antitrust laws of the United States and with the telecommunications 
regulatory regime of the United Kingdom. Neither the absence of 
specific reference to a particular event in the Final Judgment nor the 
foreseeability of such an event at the time this Final Judgment was 
entered, shall preclude this Court's consideration of any modification 
request. This standard for obtaining contested modifications shall not 
require the United States to initiate a separate antitrust action 
before seeking modifications. The same standard shall apply to any 
party seeking modification of this Final Judgment. If a motion to 
modify this Final Judgment is not contested by any party, it shall be 
granted if the proposed modification is within the reaches of the 
public interest. Where modifications of the Final Judgment are sought, 
the provisions of Section V of this Final Judgment may be invoked to 
obtain any information or documents needed to evaluate the proposed 
modification prior to decision by the Court.
VIII
Sanctions
    Nothing in this Final Judgment shall prevent the United States from 
seeking, or this Court from imposing, against defendants or any other 
person, any relief available under any applicable provision of law.
IX
Further Provisions
    A. The entry of this Final Judgment is in the public interest.
    B. The substantive restrictions and obligations of this Final 
Judgment shall be removed after five years have passed from the date of 
entry of the Final Judgment, unless the Final Judgment has been 
previously terminated.

    Dated:

----------------------------------------------------------------------
United States District Judge

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. MCI Communications 
Corporation and BT Forty-Eight Company (``NewCo''), Defendants.

Civil Action No.-------------------------------------------------------

Filed:-----------------------------------------------------------------
Competitive Impact Statement
    The United States, pursuant to section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 
16(b)-(h), files this Competitive Impact Statement relating to the 
proposed Final Judgment submitted for entry in this civil antitrust 
proceeding.
I
Nature and Purpose of the Proceeding
    On June 15, 1994, the United States filed a civil antitrust 
complaint under Section 15 of the Clayton Act, as amended, 15 U.S.C. 
25, alleging that the proposed acquisition of a 20% equity interest in 
MCI Communications Corporation (``MCI'') by British Telecommunications 
plc (``BT''), and the proposed formation of a joint venture between MCI 
and BT to provide international enhanced telecommunications services, 
would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, 
by lessening competition in the markets for international 
telecommunications services between the United States and the United 
Kingdom and for global seamless telecommunications services, thereby 
depriving United States consumers of the benefits of competition--lower 
prices and higher quality services. Defendants are MCI and BT Forty-
Eight Company, also known as NewCo, which at present is a wholly owned 
subsidiary of BT and which will become the joint venture of MCI and BT 
upon consummation of the agreements between them. The Complaint seeks 
injunctive and other relief.
    The United States and the defendants have stipulated to the entry 
of a proposed Final Judgment, after compliance with the Antitrust 
Procedures and Penalties Act, 15 U.S.C. 16(b)-(h). Entry of the 
proposed Final Judgment would terminate this action, except that the 
Court would retain jurisdiction to construe, modify, and enforce the 
proposed Final Judgment and to punish violations of the Judgment. The 
United States and the defendants also have stipulated that the 
defendants will abide by the terms of the proposed Final Judgment after 
consummation of the transactions between them, pending entry of the 
Final Judgment by the Court, permitting the transactions to go forward 
prior to completion of the Tunney Act procedures. Should the Court 
decline to enter the Final Judgment, defendants have also committed in 
the stipulation to abide by its terms until the conclusion of this 
action.
II
Events Giving Rise to the Alleged Violation
A. The Proposed Transactions
    On August 4, 1993, MCI and BT entered into an Investment Agreement 
by which BT would acquire a 20% equity stake in MCI for approximately 
$4.3 billion. MCI and BT entered into an amended and restated version 
of this Investment Agreement on January 31, 1994. With consummation of 
this Investment Agreement and related agreements, BT would become the 
single largest shareholder in MCI. In addition, BT would receive a 
number of special shareholder rights, including the need for BT's 
consent to various actions by MCI, access to internal MCI information, 
and proportionate board representation consisting of three of the 
fifteen seats on MCI's Board of Directors. MCI would gain certain 
special rights with respect to BT as well, including a seat on the BT 
Board of Directors.
    MCI and BT have agreed that if either party competes with the other 
in its ``core'' business (defined to include any telecommunications 
services or equipment, with specific limited exceptions) in its 
assigned territory (the ``Americas'' for MCI, and the rest of the world 
for BT), it will lose all special rights, including board 
membership.\1\ While the agreement does not formally prohibit BT and 
MCI from competing with each other in their domestic and international 
telecommunications businesses, as a practical matter it ensures that BT 
will only enter the United States telecommunications markets through 
its investment in MCI so long as their relationship continues. BT's 
operations in the United States principally consist of Syncordia, a 
wholly owned subsidiary engaged in ``global outsourcing.'' This is the 
provision of various integrated international telecommunications 
services and enhanced services to large users through a single source, 
allowing customers to transfer responsibility for owning and managing 
their corporate telecommunications networks.\2\
---------------------------------------------------------------------------

    \1\Pursuant to agreement with the competition authorities of the 
Commission of the European Union, the restriction on MCI entering 
BT's core business in its territory has been limited to a period of 
five years from closing, but the duration of the restriction on BT 
competing in the United States has not been limited. 1994 O.J. 94/C, 
Notice re Case No. IV/34,857-BT-MCI (March 30, 1994).
    \2\BT and MCI had a more significant competitive overlap in the 
United States at the time that they entered into the Investment 
Agreement, in the area of public data networks. BT's subsidiary 
British Telecommunications North America (BTNA) owned the Tymnet 
public data network, a major provider of such services, while MCI 
owned 25% of Infonet, one of Tymnet's principal competitors. MCI 
agreed to acquire Tymnet from BT. Before it consummated this 
acquisition earlier in 1994, however, MCI sold its share in Infonet 
to the other owners of Infonet.
---------------------------------------------------------------------------

    While they entered into the Investment Agreement, MCI and BT also 
entered into a Joint Venture Agreement and other related agreements 
committing them to form a joint venture, to be owned 75.1% by BT and 
24.9% of MCI. This joint venture, NewCo, is incorporated in the United 
Kingdom, and will have its principal place of business and most of its 
employees in the United States. BT and MCI both will contribute 
international telecommunications facilities to the joint venture, 
including BT's Syncordia business. The stated purpose of the joint 
venture is to provide international enhanced telecommunications 
services to large international users, such as multinational 
corporations. These services will be available from a single source and 
will be consistent in quality, features and capabilities wherever 
purchased. These services may include various types of data services, 
messaging and video conferencing, global calling card services, 
intelligent network services, certain types of satellite services and 
global outsourcing such as Syncordia already offers in the United 
States and other countries. Under certain circumstances, and if 
permitted by regulatory authorities, the role of the joint venture may 
be expanded to include other telecommunications services in addition to 
enhanced ones. The venture may also expand its business operations to 
other types of customers.
    MCI will be the exclusive distributor of the joint venture's 
services in North and South America and the Caribbean (``the 
Americas''), and BT will be the joint venture's exclusive distributor 
in the rest of the world. MCI and BT also have agreed to supply the 
necessary services and facilities in their respective distribution 
regions to enable the joint venture to operate. In addition, MCI and BT 
have agreed not to compete with the joint venture anywhere in the 
world. Therefore, BT and MCI will have to realize all gains from the 
areas of business in which the joint venture is engaged through their 
ownership interests in the joint venture and their sales of its 
services, and BT generally will only be able to participate in this 
market in the United States through its investments in MCI and the 
joint venture.\3\
---------------------------------------------------------------------------

    \3\There is a limited possibility for so-called ``passive 
sales,'' that is, sales by BT or MCI to a customer with no presence 
in its assigned area where the customer has on its own initiative 
chosen to contract with the firm outside its area, but has not been 
solicited by that firm.
---------------------------------------------------------------------------

B. The Parties to the Transaction and the Relevant Markets
    MCI is the second largest long distance telecommunications carrier 
in the United States, and in terms of traffic, the fifth largest 
telecommunications carrier in the world. Its principal long distance 
domestic and international competitors in the United States are AT&T 
Corporation, the largest carrier, and Sprint Corporation, the third 
largest carrier. BT, formerly a government-owned monopoly, is now 
privately held. It is by far the largest telecommunications carrier in 
the United Kingdom, and is the fourth largest telecommunications 
carrier in the world in terms of traffic. BT is the dominant 
telecommunications carrier in the United Kingdom, as it provides almost 
all local services and had high market shares in long distance domestic 
and international services. Indeed, BT has over ten times the total 
sales revenues of Mercury Communications Ltd., its only substantial 
competitor in long distance services. Thus, the transactions between 
MCI and BT will result in vertical affiliation between the dominant 
telecommunications carrier in the United Kingdom and the second largest 
long distance provider in the United States.
    Both MCI and BT provide international telecommunications and 
enhanced telecommunications services between the United States and the 
United Kingdom to individuals and businesses for the exchange of voice, 
video, and data messages. MCI carries about 20% of the international 
switched telecommunications traffic originating and terminating in the 
United States and BT carries about 75% of the international switched 
telecommunications traffic originating and terminating in the United 
Kingdom. Mercury is the only other company the United Kingdom currently 
permitted to provide international telecommunications services between 
the United States and United Kingdom using its own telecommunications 
facilities (there is also some limited resale of the services of BT and 
Mercury). No other companies have been licensed in the United Kingdom 
to provide international telecommunications systems.
    BT has substantial market power in the provision of 
telecommunications services in and to the United Kingdom, in large part 
because access to its local network is necessary for all other 
telephone companies that seek to provide long distance domestic and 
international services. About 97% of all telecommunications traffic in 
the United Kingdom terminates through BT's local network, and the great 
majority of traffic also originates on BT's network. Although cable 
television companies provide local telecommunications services in some 
areas of the United Kingdom, today they account for an insignificant 
proportion of such services, in the range of 1%, and their activities 
are unlikely to diminish BT's market power during the term of the 
proposed decree.\4\ Substantial replication of BT's local 
telecommunications network in the United Kingdom would be prohibitively 
expensive for any new entrant or existing long distance provider.
---------------------------------------------------------------------------

    \4\In addition to BT and the cable companies, there is one other 
provider of local telecommunications services in the United Kingdom, 
serving only the city of Kingston-upon-Hull where BT does not have a 
local network.
---------------------------------------------------------------------------

    BT also controls the largest and most comprehensive long distance 
domestic and international telecommunications network in the United 
Kingdom, and carries about 84% of domestic switched long distance 
traffic in the United Kingdom. (Mercury carries virtually all of the 
rest.) Since 1991, the United Kingdom government has granted additional 
licenses for domestic telecommunications systems. Those new domestic 
licensees either have not yet begun commercial long distance operations 
using their own facilities (some firms operate on a limited scale as 
resellers using the facilities of BT or Mercury), or have not yet 
achieved any substantial share of the United Kingdom market.
    BT has been able to retain a dominant position in the provision of 
long distance domestic and international telecommunications services in 
the United Kingdom for several reasons, including its control of the 
local network. BT does not provide Mercury or other competitors either 
equal access or number portability. Both of these features are 
generally offered to all long distance carriers by operators of the 
monopoly local exchange networks in the United States, and have been 
important factors in the development of domestic and international long 
distance competition. Equal access would allow customers to gain access 
to the long distance networks of Mercury and other competitors through 
BT's network without dailing additional numbers or obtaining special 
equipment that is not needed to use BT's long distanced services. 
Number portability would allow customers switching from BT to Mercury 
or other competitors to retain their original telephone number. The 
lack of equal access and number portability places Mercury and any 
other competitors who may offer long distance service at a competitive 
disadvantage to BT, contributing to BT's ability to sustain its 
substantial market power in the provision of long distance domestic and 
international telecommunications services in the United Kingdom. These 
long distance services are necessary to deliver enhanced 
telecommunications and seamless global telecommunications services 
internationally.
    In addition, Mercury must pay BT Access Deficit Charges (``ADCs'') 
in order to have traffic delivered through BT's network. ADCs are 
payments made by competing carriers to BT for each minute of traffic 
those carriers send through BT's network. ADCs are intended by United 
Kingdom regulatory authorities to compensate BT for providing its other 
local exchange services subject to price controls. These charges, 
especially for international traffic, greatly exceed BT's cost of 
providing interconnection to Mercury. ADCs may be imposed on new 
entrants that compete with BT and interconnect with its network. The 
total cost for Mercury, or any other United Kingdom competitor of BT 
that is required to pay ADCs, to send international traffic through 
BT's local network is several times greater than the comparable costs 
paid by international long distance carriers in the United States for 
interconnection with local networks.
C. The Competitive Effect of the Acquisition
    The Complaint alleges that the acquisition of MCI shares by BT may 
substantially lessen competition in the provision of international 
telecommunications services between the United States and the United 
Kingdom. BT will have increased incentives and the ability, using its 
dominant position in the United Kingdom, to favor MCI and to disfavor 
its United States competitors in international telecommunications 
services in various ways, making competitors' offerings less attractive 
in quality and price than those of MCI, and so lessening the ability of 
MCI's rivals to compete effectively in these services. As a result of 
this anticompetitive conduct, the price of international 
telecommunications services to the United Kingdom available to United 
States consumers could be increased, and the quality lessened, relative 
to what United States consumers would pay and receive in a competitive 
market.
    International telecommunications services are generally provided 
today on a ``correspondent'' basis, meaning that providers in different 
countries enter into commercially negotiated bilateral agreements with 
one another to complete each other's traffic. International 
correspondent telecommunications services primarily consist of the 
basic switched voice telephone call, which is known either as 
International Direct Dial (``IDD'') or International Message Telephone 
Service (``IMTS''), and International Private Line Service (``IPLS''). 
They also include certain other switched telecommunications and 
enhanced telecommunications services.
    ``Switched'' traffic makes use of switching facilities and common 
lines. Consumers typically obtain switched correspondent services from 
the provider in the country where a call originates, and calls are 
handed off to the provider in the other country without direct customer 
involvement. IPLS consists of circuits dedicated to the use of a single 
customer, and the providers of IPLS in each country typically sell 
their ``half'' of the circuit to the user separately. Switched services 
constitute the great majority of international telecommunications 
services in terms of both traffic and revenues.
    The Complaint alleges that acquiring a 20% ownership interest in 
MCI will increase BT's incentive to discriminate in favor of MCI and 
against other United States international carriers in the market or 
markets for international telecommunications services between the 
United States and the United Kingdom. BT's incentive to favor MCI is 
reinforced by the provision in the Investment Agreement that subjects 
BT to loss of its special rights if it competes in the Americas in the 
provision of telecommunications services and equipment.
    MCI could receive various forms of favorable treatment from BT with 
respect to its international correspondent services between the United 
States and the United Kingdom. For example, BT could favor MCI or 
disfavor its competitors with respect to the prices, terms and 
conditions on which international services are provided, as well as the 
quality of provisioning of those services, and could provide to MCI 
advance information about planned changes to its network. Such 
discrimination could place other United States international carriers 
at a competitive disadvantage to MCI, enabling MCI to charge more for 
its services or to provide a lower quality of service than it would 
otherwise be able to do without losing customers.
    In addition, the Complaint alleges that BT's ownership interest in 
MCI would increase BT's incentive to provide MCI confidential, 
competitively sensitive information that BT obtains from other United 
States carriers through their correspondent relationships with BT. In 
order to use BT's correspondent switched and private line services and 
to negotiate terms of use, United States international 
telecommunications providers must provide BT various types of 
competitively sensitive information, including private line customer 
identities, service requirements, plans for the introduction of new 
services, changes in existing services, and future traffic projections. 
If BT were to share this information with MCI, then MCI could gain an 
anticompetitive advantage over its United States competitors. Allowing 
MCI access to such competitively valuable information about its 
competitors would also increase the risk of collusion.
    Finally, the Complaint alleges that the agreements will give BT the 
increased incentive and ability to send its international switched 
traffic to the United States exclusively or largely to MCI. Such 
diversion of traffic could harm competition among international 
telecommunications service providers in the United States, and United 
States consumers, by increasing the net settlement payments that other 
United States carriers must make to BT.\5\ If BT diverted all or most 
of its traffic to MCI, unaffiliated United States international 
carriers would lose offsetting return traffic from BT and would have to 
make larger settlement payments to BT, putting them at a competitive 
disadvantage in the market for United States-United Kingdom 
telecommunications, and this could result in MCI charging higher 
prices. The ability to divert the bulk of its traffic to an affiliated 
United States carrier could also give BT an increased incentive to keep 
international accounting rates above costs.\6\
---------------------------------------------------------------------------

    \5\The correspondent agreements governing switched services 
establish an ``accounting rate'' per minute of traffic, for each 
type of traffic sent over a particular international route. The 
carriers in each country pay half the accounting rate (the 
``settlement rate'') to their foreign correspondents for each minute 
of traffic completed. Settlement payments for outgoing traffic are 
offset by the settlement payments for incoming traffic. When there 
is an imbalance in the amount of outgoing and incoming traffic 
between carriers, the carrier with the most outgoing traffic makes a 
net settlement payment to its correspondent. Today, United States 
carriers accept the same proportion of the total switched traffic 
from each of their correspondents in a foreign country as the 
proportion of total switched traffic to the correspondent that each 
of the United States carriers send. This protects each carrier from 
being competitively disadvantaged by having to make large net 
settlement payments that other competitors can avoid. Federal 
Communications Commission policy supports this proportionate 
allocation of switched traffic, although the FCC has not adopted 
regulations governing proportionate allocation.
    \6\Because United States carriers send substantially more 
traffic to the United Kingdom than United Kingdom carriers send to 
the United States, United States carriers must make large net 
settlement payments to United Kingdom carriers, most of which go to 
BT. Current accounting rates between the United States and the 
United Kingdom are substantially above the cost of providing 
service.
---------------------------------------------------------------------------

D. The Competitive Effect of the Joint Venture
    The Complaint also alleges that the formation of the BT-MCI joint 
venture may substantially lessen competition in the market or markets 
for seamless global telecommunications services provided in the United 
States. BT will have increased incentives and the ability, using its 
dominant position in the United Kingdom, to favor NewCo and MCI and to 
disfavor their United States competitors in seamless global 
telecommunications services in various ways, lessening the ability of 
the competitors of MCI and NewCo to develop and offer new seamless 
global services and compete effectively in these services. As a result 
of this anticompetitive conduct, the quality of seamless global 
telecommunications services available to United States consumers could 
be lessened, and the price increased, relative to what United States 
consumers would pay and receive in a competitive market.
    Seamless global telecommunications services would be made available 
by a single provider using an integrated international network of owned 
or leased facilities, and would have the same quality, features, 
characteristics, and capabilities wherever they are provided, making 
them significantly superior to ordinary correspondent 
telecommunications services for many customers, particularly 
multinational corporations and other large users of international 
telecommunications. Seamless services would permit one-stop shopping, 
so that users could avoid negotiation with telecommunications network 
operators in different countries, and would overcome the inadequacies 
and differences in standards in various national telecommunications 
systems. They could offer scale economies by comparison with private 
networks individually organized by users. However, creating seamless 
global networks will require a major commitment of resources and 
expertise that few firms can supply.
    Seamless global telecommunications services represent an emerging 
market, but an important one for the evolution of international 
telecommunications. Other entrants or potential entrants in this 
market, in addition to BT and MCI, include AT&T's Worldsource (a non-
exclusive partnership with several foreign providers including Japan's 
KDD), Unisource (an alliance of the national or principal 
telecommunications providers in Switzerland, Sweden and the 
Netherlands), Eunetcom (an alliance of the German and French national 
telecommunications providers), Sprint, and Cable & Wireless plc (the 
parent of Mercury).
    By their nature, seamless global telecommunications services must 
be offered on a consistent basis in all the major countries where 
customers are located. Thus, nondiscriminatory access to the 
telecommunications networks in these countries is essential for any 
provider of these services. The United Kingdom has a crucial role in 
seamless global telecommunications services because about ten percent 
of all likely potential customers have their headquarters there, and 
most potential customers of these services need telecommunications 
services in the United Kingdom.
    BT's role in the joint venture would increase its incentive to 
favor the joint venture and MCI over other United States providers of 
seamless global telecommunications services. Since BT could not compete 
with the joint venture and only MCI could solicit customers for the 
joint venture's services in the United States, where about 40 percent 
of all potential customers have their headquarters, BT would depend on 
MCI and NewCo for revenues from such services in the United States. It 
would not have the opportunity to earn additional revenues in non-
exclusive arrangements to provide similar services with other 
providers, so its incentive to use its dominant position in the United 
Kingdom to place MCI and NewCo in the strongest possible position in 
the United States, at the expense of competitors, would be reinforced.
    BT could discriminate in favor of NewCo and MCI using its 
vertically integrated position in the United Kingdom, with a virtual 
monopoly in local services and a dominant position in long distance 
domestic and international services, as these services will be needed 
by competing providers of seamless global services to complete traffic. 
Discrimination could occur in interconnection to the BT network, 
provision of information about the network, and provision of the 
international private circuits NewCo and its competitors would need for 
their seamless global service ``platforms.'' BT could also provide 
NewCo and MCI with competitively sensitive information it obtains from 
seamless global service competitors who interconnect with BT's United 
Kingdom network. Finally, BT could favor MCI and NewCo by sending them 
on a non-correspondent basis traffic from the United Kingdom that would 
otherwise be allocated proportionately. The agreements between BT and 
MCI specifically provide for such use of NewCo facilities.
III.--Explanation of the Proposed Final Judgment
A. Prohibitions and Obligations
    Under the provisions of the Antitrust Procedures and Penalties Act, 
the proposed Final Judgment may only be entered if the Court finds that 
it is in the public interest. The United States has tentatively 
concluded that the proposed Final Judgment affords an adequate remedy 
for the alleged violations and is in the public interest.
    Section II contains the substantive restrictions and obligations. 
They include transparency requirements (Section II.A), confidentiality 
requirements (Sections II.B, II.C and II.D), and requirements related 
to international simple resale (Section II.E). These various 
requirements, in combination, will substantially diminish the risk of 
abuse of BT's market power to discriminate or otherwise afford 
anticompetitive advantages to MCI and NewCo.\7\ They will do so by 
making discrimination easier to detect, by precluding the misuse of 
confidential information obtained by BT from MCI's competitors, and by 
increasing the likelihood that United States competitors of MCI and 
NewCo, if licensed, will be interconnected with BT in the United 
Kingdom, so that they can respond effectively to international 
discrimination and diversion of BT's traffic to MCI. The object of 
these substantive terms is to ensure that MCI, as the result of its 
direct affiliation with BT or its position as the exclusive distributor 
of NewCo services in the United States, is not advantaged over its 
competitors in the United States to the detriment of competition or 
consumers.
---------------------------------------------------------------------------

    \7\NewCo is broadly defined in Sections IV.A and IV.K to ensure 
that the entire joint venture will be subject to the Final Judgment, 
regardless of the forms that it may take or restructurings that may 
occur.
---------------------------------------------------------------------------

1. Transparency Requirements
    Section II.A forbids MCI and NewCo from offering, supplying 
distributing or otherwise providing any telecommunications or enhanced 
telecommunications service that makes use of telecommunications 
services provided by BT in the United Kingdom or between the United 
States and the United Kingdom, unless MCI and NewCo disclose certain 
types of information. Because these transparency requirements may be 
affected by changes in regulation or other circumstances, Section II.A 
provides the United States with the ability to waive these requirements 
in whole or in part.
    Pursuant to Section IV.E., MCI and NewCo will provide the 
information to the Department of Justice, which may then disclose the 
information to any United States corporation that holds or has applied 
for a license, from either United States or United Kingdom authorities, 
to provide international telecommunications services between the United 
States and the United Kingdom. This will enable the principal 
competitors of MCI and NewCo to monitor whether either of these 
companies is receiving discriminatory treatment in their favor from BT, 
and provide them with evidence that could be used to make a complaint 
to any governmental authorities in the United States or the United 
Kingdom. The term ``governmental authorities'' is used broadly and 
includes independent agencies. Corporations receiving this information 
from the Department of Justice would be required to sign a 
confidentiality agreement with the Department, obligating them not to 
disclose non-public information to any persons other than governmental 
authorities. The stipulation between the defendants and the United 
States describes the form of a confidentiality agreement in more 
detail. This confidentiality provision was adopted to prevent to wider 
dissemination of defendants' non-public business information than is 
necessary to detect and prevent anticompetitive conduct.
    Defendants also have stipulated to enter into agreements with BT, 
prior to entry of the Final Judgment, that will ensure that they are 
provided with sufficient information to comply with Section II.A. Such 
agreements with BT must also be consistent with the separate 
obligations on defendants, under Sections II.B-D, precluding receipt 
from BT of various types of information about their competitors.
    The terms ``Telecommunications services'' and ``enhanced 
telecommunications services'' are employed throughout the transparency 
requirements as well as elsewhere in the Final Judgment.\8\ 
``Telecommunications services,'' as defined in the Final Judgment (see 
Section IV.L), include ordinary switched voice telephony and private 
circuits as well as conveyance (including transmission, switching and 
receiving) of data and video information, and signaling, translation 
and conversion in the network. These basic telecommunications services 
are the bulk of existing telecommunications, and are licensed and 
regulated to some degree in both the United States and the United 
Kingdom. There are relatively few significant providers. In contrast, 
``enhanced telecommunications services'' (as defined in Section IV.F), 
which use telecommunications services as a foundation to provide 
various advanced and intelligent applications of additional value to 
users, are subject to little or no regulation in the United States and 
the United Kingdom. The number of providers is often greater than for 
basic telecommunications, although all such providers must have access 
to the basic telecommunications services in order to do business.\9\
---------------------------------------------------------------------------

    \8\The definitions of ``telecommunications services'' and 
``enhanced telecommunications services'' in the Final Judgment are 
based on the distinction between basic services and enhanced 
services recognized by the FCC, as well as similar concepts in the 
United Kingdom (where ``value-added services'' is analogous to 
enhanced services). The definitions do not duplicate those used by 
the national regulatory authorities, which differ somewhat in 
terminology, but they incorporate as much as possible the underlying 
concepts, while ensuring consistent treatment within the context of 
this judgment for services offered in the United States and in the 
United Kingdom.
    \9\If an activity is a ``telecommunications service'' as defined 
in the Final Judgment, it remains so when it is offered or bundled 
with enhanced services or other equipment, facilities, or services, 
or if it is called a ``package of facilities'' or something other 
than a telecommunications service.
---------------------------------------------------------------------------

    NewCo will interconnect directly with BT's United Kingdom network, 
and will obtain other telecommunications services from BT, such as 
international circuits, to use in the provision of seamless global 
network services. NewCo's services may be distributed by BT either 
alone or together with BT's own domestic services in the United 
Kingdom. NewCo may have access to valuable information concerning 
changes to BT's United Kingdom network that has not yet been disclosed 
to other competitors.
    Accordingly, NewCo is subject to four categories of disclosure 
requirements. Section II.A.1 obligates it to disclose the prices, terms 
and conditions, including any discounts, on which telecommunications 
services are provided to NewCo pursuant to interconnection agreements. 
Interconnection agreements are specific arrangements (see Section IV.H) 
by which other licensed operators in the United Kingdom receive rights 
to connect their systems to BT's network and have BT complete delivery 
of traffic, on terms that may differ from those available to retail 
customers. Although BT began to publish new interconnection agreements 
last year, BT's license allows it the option to publish pricing 
methodologies instead of actual prices. Section II.A.1 will compel 
NewCo to disclose the actual prices BT charges it for interconnection.
    Section II.A.2 imposes similar disclosure obligations on NewCo for 
prices, terms and conditions, including any discounts, of any other 
telecommunications services it obtains from BT. These services could 
include international private circuits obtained at retail or otherwise 
from BT. The disclosure requirements under this provision also apply to 
the terms on which BT provides U.K. telecommunications services to 
customers together with NewCo services, thus facilitating detection of 
discrimination in bundling of services. To some extent these types of 
information are already disclosed by BT in its retail tariffs pursuant 
to United Kingdom regulation, but Section II.A.2 ensures comprehensive 
transparency to prevent discrimination.
    Section II.A.4 requires NewCo to provide additional information 
about the specific telecommunications services that it receives from BT 
to supply telecommunications or enhanced telecommunications services 
between the United States and the United Kingdom, as well as the 
services BT provides directly to customers in the United Kingdom as the 
distributor for NewCo. NewCo is required to disclose the types of 
circuits, including their capacity, and other telecommunications 
services provided. NewCo also is required to disclose information 
concerning the actual average times between order and delivery of 
circuits and the number of outages and actual average times between 
fault report and restoration for various categories of circuits. These 
types of information are not otherwise disclosed under existing 
regulations, and are important to the detection of various types of 
discrimination. Where NewCo has to disclose particular 
telecommunications services provided by BT under II.A., it is required 
to identify the services and provide reasonable detail about them (if 
not already published). However, if a service is sold as a unit, 
separate underlying facilities need only be disclosed to the extent 
necessary to identify the service and the means of interconnection. 
NewCo is not required to identify individual customers or the locations 
of circuits and services dedicated to particular customers.
    Finally, under Section II.A.6 NewCo is required to disclose 
information it or MCI receives from BT about planned and authorized 
changes in BT's United Kingdom network that would affect 
interconnection arrangements with any licensed operators. Should MCI 
receive information separately from NewCo, it has the same disclosure 
obligation. Disclosure of information of this nature is important to 
ensure that NewCo, through its affiliation with BT, is not given 
commercial advantages through advance notice.
    MCI's relationship with BT in the provision of international 
services will be less complex than NewCo's, owing to MCI's agreements 
not to compete with NewCo and to suffer loss of its special rights if 
it competes with BT outside the Americas for a period of five years 
from closing. MCI will continue to provide international correspondent 
switched and private line services together with BT. To ensure greater 
transparency in MCI's dealings with BT, Section II.A contains two sets 
of disclosure obligations specifically applicable to MCI.
    Section II.A.3 applies to any international switched 
telecommunications or enhanced telecommunications services provided by 
MCI and BT on a correspondent basis between the United States and the 
United Kingdom. It requires MCI to disclose both the accounting and 
settlement rates, and other terms and conditions, applicable to any of 
these services. When there is no specific agreement between MCI and BT 
setting forth this information, MCI must state the rates, terms and 
conditions on which the service is actually provided. If BT combines 
types of traffic subject to different accounting rates to determine the 
proportionate allocation of switched traffic to United States 
providers, MCI must disclose its own minutes of traffic in each 
separate accounting rate category so that the other United States 
providers can determine whether they are being sent the appropriate 
shares of traffic from BT, if they do not already receive data (such as 
total traffic volumes in each rate category) that is sufficient to 
enable them to do so. This latter obligation addresses a particular 
type of possible discrimination in international services, known as 
``grooming,'' by which a foreign carrier can favor particular United 
States correspondents with traffic of superior value while appearing to 
allocate minutes of traffic on a proportionate basis. Today some types 
of information covered by Section II.A.3, such as agreed-upon 
accounting rates, are supplied to the Federal Communications Commission 
(``FCC'') and are published, or are provided to competitors. Where 
information has already been made available in these ways, Section 
II.A.3 of the Final Judgment does not require MCI to provide it to the 
Department of Justice.
    Section II.A.5 requires MCI to provide information about the United 
States-United Kingdom international private circuits it provides 
jointly with BT. MCI must disclose the actual average times between 
order and delivery by BT, and the actual average time intervals between 
fault report and restoration in specific areas of the international 
facility and the overseas network. This information is similar to types 
of information NewCo provides under Section II.A.4 and serves similar 
purposes. MCI is also required, for circuits used to provide 
international switched services on a correspondent basis between the 
United States and the United Kingdom, to identify average numbers of 
circuit equivalents available during the busy hour. The great majority 
of these circuits would be with BT. None of the information disclosed 
under Section II.A.5 is made public today.
    Under Section II.A., MCI and NewCo are required to disclose 
intellectual property or proprietary information only if it is one of 
the types of information expressly required to be disclosed by any of 
these transparency obligations, or if it is necessary for licensed 
operators to interconnect with BT's United Kingdom network or for 
United States international providers to use BT's international 
facilities to complete their services. MCI and NewCo, as well as BT 
indirectly, are thus protected against overly broad disclosure of such 
valuable commercial information.
2. Confidentiality Requirements
    Three provisions of the proposed Final Judgment, Sections II.B, 
II.C and II.D, constrain the ability of MCI (including the director it 
appoints to the BT board) and NewCo to receive from BT (including BT-
appointed directors on the board of MCI), various types of confidential 
information that BT obtains from MCI's and NewCo's United States 
competitors. Existing regulatory requirements do not adequately protect 
any of this information from disclosure.
    Under Section II.B MCI and NewCo will not receive information from 
BT that other United States competitors identify as proprietary and 
maintain as confidential, but that has been obtained by BT as the 
result of its provision of interconnection or other telecommunications 
services to the competitors in the United Kingdom. In order to obtain 
interconnection, other licensed operators are commonly required to 
provide BT with a statement of requirements containing detailed 
information about their planned services and interconnection needs. As 
interconnection needs change over time, BT will receive more 
confidential information. BT may also learn the identities and service 
needs of particular customers of its competitors who need to have 
private circuits interconnected with BT. Of course, there is no 
alternative to interconnection with BT because of its local monopoly 
bottleneck and overall market power in the United Kingdom.
    Section II.C similarly forbids MCI and NewCo from receiving 
confidential, non-public information from BT that BT may obtain from 
other United States competitors of MCI and NewCo through its 
correspondent relationships with them. United States international 
telecommunications providers have no reasonable alternative at present 
to using BT for at least some of their correspondent traffic to and 
from the United Kingdom. A limited exception is provided to allow MCI 
to obtain certain types of aggregate information it may need to comply 
with its transparency obligations under Sections II.A.3(ii) and II.A.5, 
but in no circumstances may MCI use this exception to receive 
individual information about other providers that is otherwise 
prohibited by this section.
    Finally, Section II.D. addresses a specific competitive risk in the 
context of international correspondent relationships, by prohibiting 
MCI from seeking or accepting from BT any non-public information about 
the future prices or pricing plans of any competitor of MCI in the 
provision of international telecommunications services between the 
United States and United Kingdom. BT and its United States 
correspondents, in the course of accounting rate negotiations, exchange 
considerable information including business plans and traffic 
projections. Section II.D addresses the substantial risk of violation 
of Section 1 of the Sherman Act that would arise if BT were to obtain 
non-public pricing information from MCI's competitors once BT becomes 
MCI's single largest owner, by precluding any sharing of price 
information through BT. Risks of price collusion, tacit or explicit, 
are considerable in an industry with a small number of large providers 
offering similar types of services.
3. International Simple Resale Requirements
    The international simple resale provision of the proposed Final 
Judgment, Section II.E, is directed at actions by BT, using its 
dominant position in the United Kingdom, that would discriminate in 
favor of MCI, including the diversion of most or all of BT's traffic 
from the United Kingdom through MCI and NewCo. Such conduct could raise 
prices to United States consumers or otherwise harm competition in the 
United States, unless United States carriers are licensed to operate in 
the United Kingdom and interconnected with BT so that they can respond 
effectively to BT's conduct.
    International simple resale (``ISR'') (see Section IV.I) is the 
transmission through private or leased international telecommunications 
facilities (or by any other international means where usage is not 
measured) of voice or data traffic (excluding certain enhanced 
capabilities), if that traffic is carried over the public switched 
telecommunications network in both the country where it originates and 
the country where it terminates. ISR avoids the correspondent system, 
and traffic sent by ISR would be exempt from proportionate allocation 
policies. When all providers on an international route are equally 
capable of using ISR, it can lessen the risk of discriminatory 
practices in switched correspondent services, and can enable United 
States providers to retaliate against attempts by a foreign carrier to 
use its market power to increase the settlement liabilities of 
unaffiliated carriers relative to those of its United States affiliate.
    ISR between the United States and the United Kingdom can lawfully 
occur only when the telecommunications regulatory authorities of both 
countries find generally that equivalency exists between them in 
policies relating to open entry and non-discrimination. However, that 
equivalency finding will not be sufficient for all United States 
providers to begin offering ISR to the United Kingdom, because in the 
United Kingdom each provider of international simple resale services 
must also be individually licensed. To provide ISR, a firm must have 
the ability to use international facilities and interconnections to the 
domestic networks at both ends of the international route.
    Section II.E prohibits MCI and NewCo from providing any 
telecommunications facilities or services to be used by BT for 
international simple resale between the United Kingdom and the United 
States, until (1) All qualified United States international 
telecommunications providers that applied by December 1, 1993 for 
United Kingdom licenses that would allow them to provide ISR have been 
granted ISR licenses,\10\ and (2) all such licensed United States 
providers have been offered the opportunity to interconnect with BT's 
United Kingdom network on standard, nondiscriminatory and published 
terms, with reasonable arrangements for any other necessary technical 
aspects of interconnection. This provision does not compel or direct 
the grant of any licenses, which is the prerogative of the United 
Kingdom government. It ensures, however, that any delays in licensing 
competing United States providers, or delays on BT's part in 
interconnecting such licensed providers in the United Kingdom, will not 
be used to anticompetitive effect by MCI, NewCo and BT.\11\
---------------------------------------------------------------------------

    \10\Some of these applicants may have also applied for other 
types of licenses from United Kingdom authorities. The Final 
Judgment requires only the grant of international simple resale 
authority.
    \11\Section II.E., by providing objective criteria for 
determining which United States international telecommunications 
providers are qualified, ensures that no individual United States 
carrier can misuse its United Kingdom ISR license application to 
delay BT's ability to provide ISR.
---------------------------------------------------------------------------

    The December 1, 1993 cutoff date for qualified providers included 
all qualified United States applicants who sought to provide 
international simple resale service before NewCo's own license 
application was filed in the United Kingdom. Plaintiff and defendants 
have sought to identify, by stipulation, the United States 
international telecommunications providers that they presently 
understand to be qualified under Section II.E.\12\ Any other persons, 
however, may notify the Department before entry of the Final Judgment 
that they believe they are also qualified within the meaning of Section 
II.E. If plaintiff concludes that any such additional persons are 
qualified they will be added to the stipulated list.
---------------------------------------------------------------------------

    \12\The stipulated list presently includes: ACC Global Corp., 
including ACC Long Distance UK Ltd.; Ameritel Communications Inc., 
including Amera Tela Communications (UK) Ltd.; AT&T Corporation, 
including AT&T (UK) Ltd.; City of London Telecommunications Ltd. 
(COLT); IDB Communications Group, Inc., including WorldCom 
International, Inc.; MFS Communications Inc., including MFS 
Communications Ltd.; and Sprint Corporation, including Sprint 
Holdings (UK) Ltd. Some of these firms have already received United 
Kingdom international simple resale licenses.
---------------------------------------------------------------------------

    Section II.E. does not affect the ability of the FCC, and United 
Kingdom authorities, to determine when general conditions warrant 
authorizing international simple resale or other forms of resale 
between the United States and the United Kingdom.
4. Modifications
    Section VII, the modifications provision, affords the means of 
expanding, altering or reducing the substantive terms of the Final 
Judgment, and is essential to the protection of competition. 
Modifications that are not contested by any party to the Final Judgment 
are reviewed under a ``public interest'' test. See, e.g, United States 
v. Western Electric Co., 993 F.2d 1572, 1576-77 (D.C. Cir. 983).
    Where a proposed modification is contested by any party to the 
Final Judgment, the Court must determine both whether modification is 
required, and whether the particular modification proposed is 
appropriate. The United States is able to seek changes to the 
substantive terms and obligations of the Final Judgment from the Court, 
including additional requirements to prevent receipt of discriminatory 
treatment by defendants, in order to avoid substantial harm to 
competition or consumers in the United States. The defendants are able 
to seek modifications removing obligations of the Final Judgment in 
order to avoid substantial hardship to themselves. In either case, the 
party seeking modifications must make a clear showing that modification 
is required, based on a significant change in circumstances or a 
significant new event subsequent to the entry of the Final Judgment. 
Such a change in circumstances or an event subsequent to the entry of 
judgment need not have been unforeseen, nor need it have been referred 
to in the Final Judgment. The parties recognize that discrimination of 
a significant nature involving BT and defendants, subsequent to the 
entry of the Final Judgment, could constitute such a new event. Before 
concluding that discrimination against any particular competitor of MCI 
or NewCo required seeking a modification of the Final Judgment to 
protect competition or consumers, the Department of Justice would 
ordinarily inquire at the outset whether the injured competitor had 
availed itself of existing regulatory remedies, if any, in the United 
Kingdom as well as the United States, and what relief had been provided 
or action taken, if any, by the telecommunications regulatory agencies.
    If the Court concludes that any party has met its burden of showing 
that the Final Judgment should be modified over the opposition of 
another party, it would then be empowered to grant any particular 
modification that meets three criteria. The modification must be (i) in 
the public interest, (ii) suitably tailored to the changed 
circumstances or new event that gave rise to its adoption, and must not 
result in serious hardship to any defendant, and (iii) consistent with 
the purposes of the antitrust laws of the United States, and the 
telecommunications regulatory regime of the United Kingdom. This 
standard protects against overbroad modifications, and recognizes that 
mere inconvenience or some hardship to a defendant will not preclude a 
modification, but only ``serious'' hardship. The loss of opportunity to 
profit from anticompetitive conduct is not a ``serious'' hardship 
within the meaning of this standard. Any proposed modification, to be 
consistent with the antitrust laws, must not be of an anticompetitive 
character, and must protect competition or consumers in the United 
States. Modifications must also be consistent with the system of 
regulation of telecommunications in the United Kingdom.
    Section VII permits the United States, where any party has sought 
modifications of the Final Judgment, to invoke any of the visitorial 
provisions contained in Section V of the Final Judgment in order to 
obtain from defendants any information or documents needed to evaluate 
the proposed modification prior to decision by the Court.
5. Visitorial and Compliance Requirements
    Section V of the Final Judgment allows the Department of Justice to 
monitor defendants' compliance by several means. Section V.A obliges 
defendants to maintain records and documents sufficient to show their 
compliance with the Final Judgment's requirements. Sections V.B and V.C 
enable the United States to gain access to inspect and copy the records 
and documents of defendants, and also to have access to their personnel 
for interviews or to take sworn testimony. Section V.B covers access to 
MCI, as well as to NewCo's operations in the United States. To avoid 
difficulties that might arise in applying that visitorial procedure to 
discovery directed at foreign operations of NewCo, Section V.C. 
provides that NewCo documents and personnel, wherever located 
(including abroad), would be produced by NewCo in the United States, 
within sixty days of request in the case of documents, and subject to 
the reasonable convenience of the persons involved in the case of 
requests for interviews or sworn testimony. Section V.D permits the 
United States also to require any defendant to submit written reports 
relating to any matters contained in the Final Judgment. Finally, 
Section V.E supplies confidentiality protections for information and 
documents furnished by defendants to the United States under the other 
provisions of Section V. It permits the Department of Justice to share 
information and documents with the Federal Communications Commission 
(subject to confidentiality protections), and to share information with 
the Office of Telecommunications (``OFTEL''), the United Kingdom 
telecommunications regulator.
6. Term of Years
    Section IX.B of the proposed Final Judgment specifies that the 
substantive restrictions and obligations of the Final Judgment shall 
expire five years after the entry of the judgment. Five years is an 
appropriate duration for the substantive provisions because the joint 
venture is expected by BT and MCI to last a minimum of five years and 
has been planned on that basis. In addition, MCI can enter BT's 
assigned territory outside the Americas to compete with BT five years 
after closing without losing its special rights in BT. The parties have 
committed by separate stipulation to notify the Department whether they 
will continue the joint venture six months before the expiration of the 
Final Judgment's substantive requirements, giving the United States an 
opportunity to decide whether it is necessary to take further action to 
protect competition. The international telecommunications markets, 
including the market or markets for international telecommunications 
services between the United States and the United Kingdom and the 
emerging market or markets for seamless global telecommunications 
services, may evolve rapidly during the next five years, in part due to 
the transactions under consideration in this case and the Final 
Judgment. Under these circumstances, the United States does not 
consider it necessary to impose a lengthier duration on the substantive 
provisions of the proposed Final Judgment.
B. Effects of the Proposed Final Judgment on Competition
    The transactions between BT and MCI represent the first opportunity 
the Department of Justice has had to consider the competitive 
consequences of the acquisition of a substantial interest in a major 
United States international telecommunications provider by a foreign 
telecommunications provider with market power in its home market. The 
formation of an exclusive international joint venture between such 
firms to provide a wide range of enhanced telecommunications services 
presents additional competitive issues.
    The BT-MCI joint venture may enable the parties to offer services 
that they would not otherwise provide. But the BT-MCI transactions also 
pose substantial risks to competition in the United States, owing to 
BT's vertically integrated virtual monopoly in local services and its 
dominant position in long distance domestic and international services 
in the United Kingdom, which when combined with MCI's competitive long 
distance services would give rise to increased incentives for BT's 
market power to be used to favor MCI and NewCo and disadvantage 
competitors in the United States. In other circumstances involving 
vertical integration between large monopoly providers of local exchange 
telecommunications services and competitive long distance providers in 
the United States, the Department of Justice has obtained various forms 
of relief under the antitrust laws to protect competition. See, e.g., 
United States v. American Telephone and Telegraph Co., 552 F. Supp. 131 
(D.D.C. 1982), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 
1001 (1983); United States  v. GTE Corp., 603 F. Supp. 730 (D.D.C. 
1984). While the relief proposed here is not the same as in those 
cases, it serves a similar competitive purpose, taking into account the 
particular circumstances and risks associated with the transactions 
between MCI and BT. These include the unique practices and 
relationships between carriers in the provision of international 
telecommunications services, the continued existence of MCI as a 
separate entity following these transactions, and the involvement of a 
foreign telecommunications provider subject to a distinct regulatory 
regime overseas.
    The United States believes that the relief proposed here, including 
both the substantive restrictions and obligations and the ability of 
the Court to modify the Final Judgment to respond to additional 
competitive problems, will substantially benefit competition. The 
ability of MCI and NewCo to realize anticompetitive advantages in the 
United States will be substantially constrained.
    Entry of the proposed Final Judgment will allow the transactions 
between BT and MCI to proceed, and any benefits from them to be 
realized by consumers. At the same time, it will provide United States 
competitors with increased means to detect discrimination, protect them 
against misuse of their confidential business information, and enable 
them to respond to BT's provision of international simple resale 
through MCI and NewCo with services of their own to the United Kingdom 
that could bypass BT's international switched correspondent services 
and alleviate the risks of anticompetitive conduct involving MCI and 
NewCo. It will also provide the United States with a mechanism to 
modify the Final Judgment, in response to post-judgment changed 
circumstances or other events, without having to initiate separate 
antitrust litigation. This opportunity to impose additional 
restrictions on defendants to protect competition and consumers in the 
United States will ensure against any possibility that the other 
substantive provisions of the Final Judgment and existing regulatory 
requirements may prove insufficient to protect competition. Thus, the 
modification provision will serve as an additional important deterrent 
to anticompetitive behavior.
IV
Remedies Available to Potential Private Litigants
    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages suffered, as well as costs and reasonable attorney's fees. 
Entry of the proposed Final Judgment will neither impair nor assist the 
bringing of such actions. Under the provisions of Section 5(a) of the 
Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima 
facie effect in any subsequent private lawsuits that may be brought 
against defendants in this matter.
    In addition, persons affected by unreasonable discrimination on the 
part of MCI, in violation of 47 U.S.C. 202, may complain to the Federal 
Communications Commission as provided by 47 U.S.C. 208, for such relief 
as is available under the Communications Act and the Commission's 
regulations, or bring suit for damages pursuant to 47 U.S.C. 206. 
Persons affected by an undue preference or undue discrimination on the 
part of BT in violation of Condition 17 of BT's license, or other 
violation of BT's license, in favor of MCI or NewCo, may complain to 
the United Kingdom Office of Telecommunications for such relief as 
OFTEL is authorized to provide under the United Kingdom 
Telecommunications Act and BT's license. Entry of the proposed Final 
Judgment will not impair the bringing of such complaints and actions, 
and indeed will likely facilitate the effective detection and 
prevention of anticompetitive conduct through existing regulatory 
mechanisms.
V
Procedures Available for Modification of the Proposed Final Judgment
    As provided by the Antitrust Procedures and Penalties Act, any 
person believing that the proposed Final Judgment should be modified 
may submit written comments to Richard L. Rosen, Chief, Communications 
and Finance Section, U.S. Department of Justice, Antitrust Division, 
555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001, within the 
60-day period provided by the Act. These comments and the Department's 
responses, will be filed with the Court and published in the Federal 
Register. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its consent to 
the proposed Judgment at any time prior to entry. The proposed Final 
Judgment provides that the Court retains jurisdiction over this action, 
and the parties may apply to the Court for any order necessary or 
appropriate to carry out or construe the Final Judgment, to modify or 
terminate any of its provisions, to enforce compliance, and to punish 
any violations of its provisions. Modifications of the Final Judgment 
may be sought by the United States or by the defendants under the 
standards described therein.
VI
Alternatives to the Proposed Final Judgment
    As an alternative to the proposed Final Judgment, the United States 
considered litigation to seek an injunction to prevent the proposed 
transactions between BT and MCI. The United States rejected that 
alternative because the relief in the proposed Final Judgment, together 
with existing regulatory safeguards in the United States and the United 
Kingdom, should provide protection against significant anticompetitive 
effects on competition.
    In formulating the proposed Final Judgment, the United States also 
considered the extent to which the regulatory regime in the United 
Kingdom and the FCC have mechanisms currently in place to address 
anticompetitive conduct, including discrimination, by providers of 
international telecommunications services. The United States considered 
including in the Final Judgment specific nondiscrimination conditions, 
enforceable through contempt sanctions, to deter discrimination by BT 
in favor of MCI and NewCo. It concluded that the other provisions of 
the Final Judgment, existing regulatory requirements and enforcement 
practices in the United States and the United Kingdom, and the ability 
of the United States to seek modifications of the Final Judgment, are 
sufficient to protect competition.
    The United States was not prepared to rely on existing regulation 
alone to prevent harm to competition and consumers in the United 
States. While the United Kingdom regulatory authorities share with the 
United States a generally procompetitive approach to telecommunications 
policy, protection of competition and consumers in the United States is 
not the primary goal of United Kingdom regulators. There are a number 
of important telecommunications regulatory issues that remain unsettled 
in the United Kingdom, and some policies specifically limiting 
competition remain in effect, such as the duopoly on international 
facilities-based competition. Historic experience and the present state 
of competition in the United States and the United Kingdom were also 
taken into account in determining that this relief was needed.
    Because, however, the telecommunications regulatory regime in the 
United Kingdom now embodies or is developing important competitive 
policies and safeguards, the United States concluded that it is 
possible to protect competition adequately in these circumstances 
without placing specific antidiscrimination prohibitions in the 
proposed Final Judgment or prohibiting the MCI-BT transactions, 
altogether, as would likely have been necessary otherwise. The 
procompetitive direction of United Kingdom telecommunications 
regulation is evidenced by the ending of the BT-Mercury domestic 
duopoly policy in 1991, and by the more recent licensing of additional 
facilities-based domestic competitors to BT and Mercury and the grant 
of several international simple resale licenses to, among others, 
United States firms. OFTEL, the principal U.K. telecommunications 
regulatory authority, has issued a statement on interconnection and 
accounting separation setting forth policies and targets for making a 
wider variety of interconnection arrangements with BT available to 
competitors, and creating greater transparency in the relationship 
between BT's own network and retail operations. OFTEL is seeking to 
improve its regulatory oversight of BT and promote greater competition 
in other respects as well. In sum, the United Kingdom 
telecommunications regulatory regime has taken steps to promote and 
foster competition that have not yet occurred in most of the world, and 
it was appropriate for the United States to take these developments 
into account in not requiring more extensive relief to be included in 
the proposed Final Judgment.
    The United States also considered issues of international comity in 
shaping the proposed Final Judgment. Consistently with its longstanding 
enforcement policy, the United States sought in the substantive 
provisions of the Final Judgment to avoid situations that could give 
rise to international conflicts between sovereign governments and their 
agencies. The substantive requirements imposed on MCI and NewCo have 
been tailored so as to avoid direct United States involvement in BT's 
operation of its telecommunications network in the United Kingdom on an 
ongoing basis, minimizing the potential for conflict with United 
Kingdom authorities.
VII
Standard of Review Under the Tunney Act for the Proposed Final Judgment
    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States are subject to a sixty-day comment 
period, after which the court shall determine whether entry of the 
proposed final judgment ``is in the public interest.'' In making that 
determination, the court may consider:

    (1) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) the impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e) (emphasis added). The courts have recognized that the 
term ``public interest'' ``take[s] meaning from the purposes of the 
regulatory legislation.'' NAACP v. Federal Power Comm'n, 425 U.S. 662, 
669 (1976); United States v. American Cynamid Co., 719 F.2d 558, 565 
(2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984). Since the purpose 
of the antitrust laws is to ``preserv[e] free and unfettered 
competition as the rule of trade,'' Northern Pacific Railway Co. v. 
United States, 356 U.S. 1, 4 (1958), the focus of the ``public 
interest'' inquiry under the Tunney Act is whether the proposed final 
judgment would serve the public interest in free and unfettered 
competition. United States v. Waste Management, Inc., 1985-2 Trade Cas. 
66,651, at 63,046 (D.D.C. 1985). In conducting this inquiry, ``the 
Court is nowhere compelled to go to trial or to engage in extended 
proceedings which might have the effect of vitiating the benefits of 
prompt and less costly settlement through the consent decree 
process.''\13\ Rather,

    \13\119 Cong. Rec. 24598 (1973). See United States v. Gillette 
Col., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. 16(f), those procedures are discretionary. A court need 
not invoke any of them unless it believes that the comments have 
raised significant issues and that further proceedings would aid the 
court in resolving those issues. See H.R. Rep. 93-1463, 93rd Cong. 
2d Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535, 
6538.
---------------------------------------------------------------------------

    Absent a showing of corrupt failure of the government to 
discharge its duty, the Court, in making the public interest 
finding, should * * * carefully consider the explanations of the 
government in the competitive impact statement and its responses to 
comments in order to determine whether those explanations are 
reasonable under the circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. 61,508, 
at 71,980 (W.D. Mo. 1977).
    It is also unnecessary for the district court to ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir.), cert. 
denied, 454 U.S. 1083 (1981). Precedent requires that

    [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. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\14\
---------------------------------------------------------------------------

    \14\United States v. Bechtel, 648 F.2d at 666 (quoting United 
States v. Gillette Co., 406 F. Supp. at 716). See United States v. 
BNS, Inc., 858 F.2d 456, 463 (9th Cir. 1988); United States v. 
National Broadcasting Co., 449 F. Supp. 1127, 1143 (C.D. Cal. 1978); 
see also United States v. American Cyanamid Co., 719 F.2d at 565.
---------------------------------------------------------------------------

    A proposed consent decree is an agreement between the parties 
which is reached after exhaustive negotiations and discussions. 
Parties do not hastily and thoughtlessly stipulate to a decree 
because, in doing so, they waive their right to litigate the issues 
involved in the case and thus save themselves the time, expense, and 
inevitable risk of litigation. Naturally, the agreement reached 
normally embodies a compromise; in exchange for the saving of cost 
and the elimination of risk, the parties each give up something they 
might have won had they proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681 (1971).
    The proposed consent decree, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive effect of a merger or whether it mandates certainty of 
free competition in the future. The court may reject the agreement of 
the parties as to how the public interest is best served only if has 
``exceptional confidence that adverse antitrust consequences will 
result * * *'' United States v. Western Electric Co., 993 F.2d 1572, 
1577 (D.C. Cir. 1993).
    Court approval of a final judgment requires a standard more 
flexible and less strict than the standard required for a finding of 
liability. ``[A] proposed decree must be approved even if it falls 
short of the remedy the court would impose on its own, as long as it 
falls within the range of acceptability or is `within the reaches of 
public interest.'''\15\ Under the public interest standard, the court's 
role is limited to determining whether the proposed decree is within 
the ``zone of settlements'' consistent with the public interest, not 
whether the settlement diverges from the court's view of what would 
best serve the public interest. United States v. Western Electric Co., 
993 F.2d at 1576 (quoting United States v. Western Electric Co., 900 
F.2d 283, 307 (D.C. Cir. 1990)).
---------------------------------------------------------------------------

    \15\United States v. American Tel. and Tel Co., 552 F. Supp. 
131, 150 (D.D.C.), aff'd sub nom. Maryland v. United States, 460 
U.S. 1001 (1982) (quoting United States v. Gillette Co., 406 F. 
Supp. at 716); United States v. Alcan Aluminum, Ltd., 605 F. Supp. 
619, 622 (W.D. Ky 1985).
---------------------------------------------------------------------------

VIII
Determinative Materials and Documents
    No documents were determinative in the formulation of the proposed 
Final Judgment. Consequently, the United States has not attached any 
such documents to the proposed Final Judgment.

    Dated: June 15, 1994.
Anne K. Bingaman,
Assistant Attorney General.
Steven C. Sunshine,
Deputy Assistant Attorney General.
Diane P. Wood,
Deputy Assistant Attorney General.
Constance K. Robinson,
Director, Office of Operations, Antitrust Division, U.S. Department of 
Justice, Washington, D.C. 20530.
Richard L. Rosen,
Chief, Communications & Finance Section.
Jonathan M. Rich,
Assistant Chief, Communications & Finance Section.
Carl Willner,
Sara J. DeSanto,
John J. Sciortino,
Attorneys, Communications & Finance Section, Antitrust Division, U.S. 
Department of Justice, 555 Fourth Street, N.W., Washington, D.C. 20001, 
(202) 514-5813.

[FR Doc. 94-15453 Filed 6-24-94; 8:45 am]
BILLING CODE 4410-01-M