[Federal Register Volume 59, Number 183 (Thursday, September 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23472]


[[Page Unknown]]

[Federal Register: September 22, 1994]


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DEPARTMENT OF JUSTICE
Antitrust Division

 

United States v. MCI Communications Corporation and BT Forty-
Eight Company (``Newco''); Public Comments and Response on Proposed 
Final Judgment

    Pursuant to the antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States of America hereby publishes below the 
comments received on the proposed Final Judgment in United States v. 
MCI Communications Corporation, et al., Civil Action No. 94-1317, filed 
in the United States District Court for the District of Columbia, 
together with the United States' response to the comments.
    Copies of the comments and response are available for inspection in 
Room 3235 of the Antitrust Division, U.S. Department of Justice, Tenth 
Street and Pennsylvania Avenue N.W., Washington, D.C. 20530 (202-514-
2481) and at the office of the Clerk of the United States District 
Court for the District of Columbia, United States Courthouse, Third 
Street and Constitution Avenue N.W., Washington, D.C. 20001.
Constance K. Robinson,
Director of Operations, Antitrust Division.

Comments Relating to Proposed Final Judgment and Response of the United 
States to Comments

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

[Civil Action No. 94-1317 (TFH)]

    Pursuant to Section 2(b) of the Antitrust Procedures and 
Penalties Act (15 U.S.C. 16(b)-(h)) (``APPA''), the United States of 
America hereby files the public comments it has received relating to 
the proposed Final Judgment in this civil antitrust proceeding, and 
herein responds to the public comments. The United States has 
carefully reviewed the public comments on the proposed Final 
Judgment and remains convinced that entry of the proposed Final 
Judgment is in the public interest.

I. Background

    This action was commenced on June 15, 1994, when 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 global seamless 
telecommunications services and for international telecommunications 
services between the United States and the United Kingdom.
    On the same date, the United States submitted a proposed Final 
Judgment, a Competitive Impact Statement, and a Stipulation signed 
by the defendants consenting to entry of the proposed Final 
Judgment. The proposed Final Judgment contains terms and conditions 
safeguarding against discriminatory and other anticompetitive 
practices that would favor the defendants over competing United 
States providers of international telecommunications services and 
harm competition. The Competitive Impact Statement explains the 
basis for the Complaint and the reasons why entry of the proposed 
Final Judgment would be in the public interest. In the Stipulation, 
defendants and the United States consent to entry of the proposed 
Final Judgment by the Court after completion of the procedures 
required by the APPA.

II

Compliance With the APPA

    The APPA requires a sixty-day period for the submission of 
public comments on the proposed Final Judgment, 15 U.S.C. 16(b). In 
this case, the sixty-day comment period commenced on June 27, 1994, 
and terminated on August 26, 1994. During this period, the United 
States received comments by one competitor of MCI and BT relating to 
the proposed Final Judgment.\1\ The United States responds herein to 
those comments. Upon publication in the Federal Register these 
comments and the following response of the United States to these 
comments, pursuant to 15 U.S.C. 16(d) of the APPA, the procedures 
required by the APPA prior to entry of the proposed Final Judgment 
will be completed, and the Court may enter the proposed Final 
Judgment. The United States will move the Court for entry of the 
proposed Final Judgment after the public comments and this response 
of the United States have been published in the Federal Register.
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    \1\These comments are attached as Exhibit A.
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III

Response to Public Comments

    The only comments received by the United States were filed by 
ACC Global Corporation (``ACC''), one of the companies recognized by 
the United States and the defendants in the Stipulation as a 
competitor entitled to receive information concerning the 
defendants, under the provisions of the proposed Final Judgment. ACC 
is a resale provider of international telecommunications services in 
the United States, and one of its subsidiaries has received a 
license to provide international simple resale services in the 
United Kingdom. ACC does not oppose prompt resolution of this matter 
through a consent decree, and indeed it considers the transparency 
requirements in Section II.A of the proposed Final Judgment as ``of 
vital importance in ameliorating the potential anticompetitive 
impact of the agreements that gave rise to the complaint filed by 
the DOJ in this matter.'' ACC Comments at 2. These transparency 
requirements, ACC states, provide ``substantial protection to 
Competitors such as ACC'' because they ensure the availability of 
evidence that can be used in enforcement proceedings under the 
decree, or in proceedings before the Federal Communications 
Commission and British regulatory authorities. Id. at 3. ACC's 
concerns pertain solely to two limited aspects of the transparency 
provisions, which it recommends be clarified or modified. After 
consideration of ACC's comments, the United States is of the view 
that neither of the modifications recommended by ACC are necessary 
to achieve the competitive purposes of the proposed Final Judgment.

A. Provision of Information Directly to Competitors

    First, ACC contends that the information to be disclosed by 
defendants under Section II.A should be provided by defendants 
simultaneously both to competitors and to the Department of Justice, 
rather than being submitted first to the Department and then being 
furnished by the Department to qualified competitors, as the 
proposed Final Judgment now specifies. Although ACC recognizes that 
it is qualified to receive the information from the Department, and 
does not suggest that it would be refused access, it believes that 
for the defendants to provide the information directly to the 
competitors would involve only a ``slight incremental burden,'' 
would facilitate monitoring by competitors, and would relieve the 
Department of the ``burden of handling the distribution function.'' 
ACC Comments at 3.
    The procedure for providing information from defendants to their 
competitor through the Department, as described in Section IV.E of 
the proposed Final Judgment and the Stipulation, was developed in 
response to the concerns of defendants that they not be required to 
disclose to the public at large, or to competitors for use in the 
marketing and sales of their services, information that may be 
competitively sensitive. The provision of this information to 
competitors, as ACC appreciates, is intended to aid in detecting 
discriminatory or other anticompetitive conduct and making 
appropriate complaints to government authorities.
    While the United States, in the circumstances of this case, 
accepted that some protection against general public disclosure of 
the defendants' information should be provided, it opposed allowing 
the defendants to have any role in screening their competitors and 
determining which ones would have accress to the information, or 
being able to influence the timing of such access. The United States 
was reasonably concerned that the defendants would have incentives 
to frustrate and delay access to their information by competitors, 
and might impose unreasonable confidentiality restrictions that 
would discourage competitors from availing themselves of access to 
the information, were they assigned the responsibility of 
disseminating the information to competitors directly.
    ACC's proposal, if adopted, could have the unintended 
consequence of impairing rather than facilitating monitoring of 
defendants by their competitors, and could impose the additional 
burden on the Department of refereeing disputes over access 
procedures between defendants and firms such as ACC. There is no 
reason for ACC to be concerned that the Department will postpone 
dissemination of the information that it receives from defendants. 
Rather, qualified competitors such as ACC that enter into a simple 
form confidentiality agreement with the Department and abide by the 
agreement will be sent promptly copies of any information furnished 
by defendants pursuant to Section II.A of the Final Judgment, 
following the Department's receipt of the information.
    B. Waiver of Transparency Requirements by the United States
    Second, ACC objects to the provision in Section II.A that would 
allow the United States to waive compliance with the transparency 
requirements, in whole or in part, through written notice to 
defendants and the Court. ACC believes that giving the United States 
discretion to waive the transparency requirements without prior 
public notice and comment and approval by the Court would ``defeat 
the purpose of the Tunney Act,'' ACC Comments at 4, and could lead 
to the United States vitiating the decree, whether intentionally or 
unwittingly due to lack of the knowledge of the industry possessed 
by defendant's competitors.
    The transparency requirements are the most detailed and complex 
substantive provisions of the proposed Final Judgment, and therefore 
the most likely to be affected by regulatory changes in the United 
States and the United Kingdom as well as marketplace developments. 
They have been designed to be consistent with existing regulatory 
requirements in both countries, and they do not conflict in any way 
with the additional obligations recently imposed by the Federal 
Communications Commission as a precondition to its approval of the 
transactions between BT and MCI, following the filing of the 
proposed Final Judgment with the Court.\2\
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    \2\In re Request of MCI Communications Corporation [and] British 
Telecommunications plc Joint Petition for declaratory Ruling 
Concerning Section 310(b)(4) and (d) of the Communications Act of 
1934, as amended, File No. I-S-P-93-013, FCC 94-188 (released July 
25, 1994).
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    It remains possible, however, that future actions by 
telecommunications regulatory authorities in the United States or 
the United Kingdom could give rise to conflicts with the Final 
Judgment, or that some of the transparency provisions could become 
unnecessary as the result of regulatory decisions or significant 
changes in the competitive environment in the United Kingdom 
affecting international telecommunications. Accordingly, the 
proposed Final Judgment was drafted to provide some flexibility for 
limited adjustments without unduly burdening the Court. The United 
States agreed to include in the proposed Final Judgment language 
giving it authority, upon express written notice to defendants and 
to the Court, to waive the transparency requirements in whole or in 
part without a prior public comment process or formal approval by 
the Court. This will enable the United States to respond rapidly to 
changing conditions that affect the enforcement and usefulness of 
these requirements.
    The United States would not, of course, be obliged to waive any 
of the transparency requirements merely because a regulatory agency 
adopted similar obligations for defendants, or took action giving 
rise to a conflict with the defendants' decree obligations. Nor 
would a decline in BT's market shares or other changes in its 
competitive position necessarily warrant modification.\3\ The United 
States would, however, be able to modify the transparency 
requirements where desirable to further the public interest, without 
the need for lengthy comment filing periods or delays engendered 
from crowded court dockets. Often it will be useful, as ACC 
suggests, for the United States to obtain information from 
competitors as well as defendants before agreeing to modify any of 
the transparency requirements. There is nothing in the proposed 
Final Judgment that precludes the United States from soliciting the 
views of affected competitors on a case-by-case basis before 
reaching a decision, and indeed the United States expects that it 
would frequently do so.
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    \3\Information disclosed in BT's most recent public report for 
1994, which the United States obtained after the filing of the 
Complaint and proposed Final Judgment, indicates that BT's current 
market shares are no more than one to three percentage points below 
those stated in the Complaint and the Competitive Impact Statement. 
This report also acknowledges that there are signs that the rate of 
attrition of BT's market share for business customers is declining.
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    ACC is incorrect in suggesting that this authority for the 
United States to waive the transparency requirements is somehow 
improper under the Tunney Act. The APPA requires that any proposal 
for a consent judgment submitted by the United States in a civil 
antitrust proceeding be filed with the district court, and directs 
that the consent judgment only be entered after the district court 
has found that it is in the public interest. 15 U.S.C. 16(b), (e). 
It nowhere precludes the district court, however, from concluding 
that it would be in the public interest to permit the United States 
to waive compliance with certain specified provisions of a consent 
judgment after its entry, so as to respond to regulatory or 
marketplace changes. ACC cites no authority to the contrary.
    Were the United States and the defendants to agree to a 
modification of this consent judgment after its entry, this Court 
would in any event be ``bound to accept any modification that the 
Department * * * reasonably regarded as advancing the public 
interest.'' United States v. Western Electric Co., 993 F.2d 1572, 
1576 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993). Section VII 
of the proposed Final Judgment, with which ACC does not quarrel, 
specifies that ``[i]f 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.'' The 
discretionary waiver authority in Section II.A of the proposed Final 
Judgment simply averts the risk of prolonged litigation over every 
change to the transparency requirements, litigation that would in 
the great majority if not all cases result in no public benefit, but 
would simply confirm that the modification agreed to by the United 
States and the defendants was within the reaches of the public 
interest.

IV

Standard of Review

    Pursuant to 15 U.S.C. Sec. 16(e), the proposed Final Judgment 
cannot be entered unless the court determines that it is in the 
public interest. The focus of this determination is whether the 
relief provided by the proposed Final Judgment is adequate to remedy 
the antitrust violations alleged in the Complaint. United States v. 
Bechtel Corp., 1979-1 Trade Cas. (CCH) 62,430, at 76,565 (N.D. Cal. 
1979), aff'd, 648 F.2d 660, 665-66 (9th Cir.), cert. denied, 454 
U.S. 1083 (1981).

    Absent a showing of corrupt failure of the government to 
discharge its duty, the Court, in making its public interest 
finding, should * * * carefully consider the explanations of the 
government in the competitive impact statement and its response 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). The court may reject the 
agreement of the parties as to how the public interest is best 
served only if it has ``exceptional confidence that adverse 
antitrust consequences will result * * *.'' United States v. Western 
Electric Co., 993 F.2d at 1577.

V

Conclusion

    After careful consideration of the comments, the United States 
continues to believe that, for the reason stated herein and in the 
Competitive Impact Statement, the proposed Final Judgment is 
adequate to remedy the antitrust violations alleged in the 
Complaint. There has been no showing that the proposed settlement 
constitutes an abuse of the United States' discretion or that it is 
not within the zone of settlements consistent with the public 
interest. Therefore, entry of the proposed Final Judgment should be 
found to be in the pubic interest.

    Dated: September 8, 1994.
      Respectfully submitted,
Carl Willner,
Attorney, U.S. Department of Justice, Antitrust Division.

Certificate of Service

    I hereby certify that on this date I have caused to be served by 
first class mail, postage prepaid, or by hand, if so indicated, a 
copy of the foregoing Response to Public Comment upon the following 
persons, counsel for defendants in the matter of United States of 
America v. MCI Communications Corporation:

Michael H. Salsbury, Esquire, Jenner & Block, 601 13th Street, NW., 
Washington, D.C. 20005
Counsel for Defendant, MCI  BY HAND
Janet L. McDavid, Esquire, Hogan & Hartson, 555 13th Street, NW., 
Washington, D.C. 20004
Counsel for Defendant, BT Forty-Eight Company  BY HAND

    Dated: September 8, 1994.
Carl Willner,
Attorney, Communications & Finance Section, Antitrust Division.

Exhibit A

Richard L. Rosen, Esq.,
Chief, Communication and Finance Section, Antitrust Division, Room 
8104, 555 Fourth Street, NW., Washington, DC 20001

Re: United States v. MCI Comm. Corp. and BT Forty-Eight Co., Civil 
Action No. 94 1317 (TFH) (D.D.C.)--Comments of ACC Global Corp.
August 26, 1994.
    Dear Mr. Rosen: On behalf of ACC Global Corp. (``ACC''), we 
respectfully submit these comments on the Proposed Final Judgment in 
the above captioned case. ACC, a wholly-owned subsidiary of ACC 
Corp., headquartered in Rochester, New York, is an international 
resale interexchange carrier that is an applicant for authority to 
provide international private line resale service between the United 
States and the United Kingdom. Another ACC Corp. subsidiary, ACC 
Long Distance UK Limited, received the first U.K. license to provide 
international simple resale service. ACC is one of only seven 
entities which the parties have stipulated are ``qualified United 
States international telecommunications providers'' 
(``Competitors''), as defined in Section II.E. of the proposed Final 
Judgment. As such, ACC competes with BT Forty-Eight Co. and its 
parent firms, MCI Communications Corp. (``MCI'') and British 
Telecommunications plc (``BT'') (collectively ``Defendants'').
    ACC does not oppose prompt resolution of this matter through 
entry of a consent decree. ACC strongly recommends, however, that 
``the transparency'' requirements of the proposed Final Judgment be 
clarified and modified so as to ensure that they achieve the 
intended effect of minimizing the potential anticompetitive effects 
of the Defendants' concerted activities. Specifically, ACC's 
comments address two respects in which ACC believes that the 
``transparency'' provisions of the proposed Final Judgment are 
deficient or unclear. First, ACC believes that the proposed decree 
should be clarified to ensure that the Competitors as well as the 
Department of Justice (``DOJ'') receive copies of the information 
required to be furnished under the transparency requirements. 
Second, ACC is seriously concerned about the adverse impact of the 
provision permitting the DOJ to waive the transparency requirements 
of the decree without notice or comment by the beneficiaries of 
those requirements and without Court approval.

I. Importance of Transparency Requirements

    ACC considers the transparency requirements of the Proposed 
Final Judgment (Section II.A) to be of vital importance in 
ameliorating the potential anticompetitive impact of the agreements 
that gave rise to the complaint by the DOJ in this matter.
    As the DOJ alleges in its Complaints, the challenged agreements 
between BT and MCI will provide BT with an ``increased incentive'' 
as well as the ``ability'' to

use its market power in the provision of local and domestic and 
international long distance telecommunications services in the UK to 
discriminate in favor of MCI and NewCo against other US 
international telecommunications and enhanced telecommunications 
providers.\1\
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    \1\Complaint, 30(a).

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and

favor MCI over its competitors in the allocation of international 
telecommunications traffic from the UK, substantially lessening 
competition in the US.\2\
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    \2\Complaint, 30(c).

ACC is, of course, one of the potentially disfavored Competitors.
    The proposed Final Judgment provides ACC and others subject to 
this discrimination with important protection against such 
discrimination in the Section II.A. transparency requirements. Under 
Section II.A., NewCo and MCI would be required to ``disclose'' a 
broad array of information regarding their dealings with BT. Under 
Section IV.E., such ``disclosure'' would be made to the DOJ which 
may, in turn, disclose such information to any U.S. corporation that 
holds or has applied for a license to provide international 
telecommunication services between the U.S. and the U.K. (This would 
include ACC.)
    As the DOJ recognizes in its Competitive Impact Statement, the 
benefit of this requirement is that it:

    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.

    This provision provides substantial protection to Competitors 
such as ACC because it ensures the availability of evidence relevant 
to enforcement proceedings under the consent decree. Moreover, such 
evidence would be significant in complaint and licensing proceedings 
before the Federal Communications Commission, which has enforcement 
and oversight authority over the U.S. common carrier Defendants. 
Similarly, such evidence would be relevant to oversight proceedings 
in the U.K. before Oftel and other supervisory agencies.

II. Necessary Clarification and Modifications of the Transparency 
Requirement

    Competitors should not have to rely on the DOJ to provide them, 
in timely fashion, with copies of information required to be 
furnished under the transparency provisions. Rather, the information 
should be provided promptly and simultaneously to both the DOJ and 
Competitors. Without such information, Competitors cannot provide a 
monitoring function contemplated by the Competitive Impact Statement 
as a check on potential anticompetitive activity. Particularly in 
light of the unusually short term of the proposed decree, any slight 
incremental burden on the Defendants by providing additional copies 
of the required information to the small number of identified 
Competitors is more than justified by the greater protection of the 
public afforded by facilitating Competitors' monitoring activities, 
and by relieving the Plaintiff DOJ from the burden of handling the 
distribution function. (The DOJ could, however, be required to 
modify the class of Competitors entitled to receive the information 
from time to time as additional potential class members request 
inclusion in it, and to notify the Defendants accordingly.)
    Similarly, ACC is also concerned that Section II.A. of the 
Proposal Final Judgment permits, without either public notice or 
comment or Court approval, the waiver of ``such disclosure * * * by 
plaintiff through written notice to defendants and the Court.'' The 
only explanation offered by the DOJ for this waiver provision is 
that the ``transparency requirements may be affected by changes in 
regulation or other circumstances.3''
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    \3\Id.
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    In ACC's view, providing the DOJ unfettered discretion to waive 
this critical provision of the decree without Court approval or 
public notice or comment would defeat the purpose of the Tunney Act. 
As Judge Harold Greene recognized in United States v. American Tel. 
& Tel. Co., 552 F. Supp. 131, 148 (D.D.C. (1982), aff'd sub nom. 
Maryland v. United States, 460 U.S. 1001 (1983), Congress enacted 
the Tunney Act because ``prior practice, which gave the Department 
almost total control of the consent decree process,'' failed to 
``fully promote the goals of the antitrust laws and foster public 
confidence in their fair enforcement.'' Judge Greene went on to 
observe that:

    The legislative history shows that Congress was particularly 
concerned that the ``excessive secrecy'' of the consent decree 
process deprived the public of the opportunity to scrutinize and 
comment upon proposed decrees, thereby undermining confidence in the 
legal system. In addition, the legislators found that consent 
decrees often failed to provide appropriate relief, either because 
of miscalculations by the Justice Department or because of the 
``great influence and economic power'' wielded by antitrust 
violators. The history, indeed, contains references to a number of 
antitrust settlements deemed ``blatantly inequitable and improper'' 
on these bases.

Id. (footnote omitted). Judge Greene also quoted the following 
statement of Senator Tunney, the bill's chief sponsor:

    Regardless of the ability and negotiating skill of the 
Government's attorneys, they are neither omniscient nor infallible. 
The increasing expertise of so-called public interest advocates and 
for that matter the more immediate concern of a defendant's 
competitors, employees, or antitrust victims may well serve to 
provide additional data, analysis, or alternatives which would 
improve the outcome.

Id. at 148 n. 70.
    As Judge Greene and Senator Tunney recognized, ``mandating an 
opportunity for public comment'' (id. at 148-49), including comment 
from the defendants' competitors, can play a major role in ensuring 
that a consent decree fully promotes the goals of the antitrust 
laws.4 Moreover, as Judge Greene went on to observe: ``It is 
clear that Congress wanted the courts to act as an independent check 
upon the terms of decrees negotiated by the Department of Justice.'' 
Id. at 149.
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    \4\See also United States v. Airline Tariff Pub. Co., 1993-2 
Trade Cas. 70,409 (D.D.C. 1993).
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    The blanket waiver authority conferred on the DOJ by the 
proposed Final Judgment, however, is not limited by any standards or 
guidelines and is totally at odds with this reasoning. Through its 
unfettered discretion to waive a critical requirement of the decree, 
absent judicial approval or the comment of the public or Defendants' 
competitors, the DOJ could, either unwittingly or intentionally, 
vitiate the decree. No adequate explanation has been offered why, if 
modification of the decree becomes necessary because of changed 
circumstances, the modification could not be submitted for public 
comment and Court approval in accordance with the Tunney Act, as is 
usually done.5 Such a requirement could avert the clearly 
undesirable possibility of the DOJ's inadvertently, because of its 
lack of the intimate knowledge of the industry possessed by 
Defendants' competitors, authorizing the Defendants to engage in 
anticompetitive conduct. Thus, at a minimum, the DOJ should be 
required, prior to waiving any Section II.A. requiring, to provide 
notice and an opportunity to comment to the Competitors to whom 
information is to be provided pursuant to Section IV.E.
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    \5\E.g., United States v. American Tel. & Tel. Co., supra; 
United States v. Motor Vehicle Mfrs. Ass'n., 1981-2 Trade Cas. 
64,370 (C.D. Cal. 1981).
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    In sum, ACC believes that the transparency provisions are 
critical to the efficacy of the proposed decree. In order to ensure 
their implementation in an effective manner, however, they should be 
clarified or modified to ensure automatic and timely disclosure also 
to Competitors of the information required to be furnished to the 
DOJ, and to ensure that they cannot be waived unilaterally by the 
DOJ without judicial approval following notice to and an opportunity 
for comment by the Competitors.
      Very truly yours,
Helen E. Disenhaus,
Counsel for ACC Global Corp.

Of Counsel
Francis D.R. Coleman,
ACC Long Distance Corp.
[FR Doc. 94-23472 Filed 9-21-94; 8:45 am]
BILLING CODE 4410-01-M