[IP] more on Judge Orders Review of Telecom Mergers
Begin forwarded message:
From: Michael Slavitch <slavitch@xxxxxxxxx>
Date: July 11, 2006 2:35:57 PM EDT
To: dave@xxxxxxxxxx
Cc: ip@xxxxxxxxxxxxxx
Subject: Re: [IP] Judge Orders Review of Telecom Mergers
Here are Judge Emmet G. Sullivan's points, courtesy the Voluntary
Trade Council.
The questions raised are non-trivial, and have far reaching
implications no matter the final answer:
My comments start with ">"
(1) What authority, if any, does the Court have to question the scope
of the government's Complaints in these two cases?
> Does the court have any say or is it in the hands of the king?
(2) What authority, if any, does the Court have to inquire of the
government as to what other alternative remedies it (and the
defendants) considered and why those alternatives were rejected in
view of the remedies suggested?
> Again, the same question: Court or King?
(3) What weight should the Court give to the legislative history of
the amended Tunney Act, 15 U.S.C. §16, in its determination of what
the appropriate standard of review is under the 2004 amended Tunney Act?
> Again, a fundemental point of law. Does precedent cease as an
arbiter and hence do common-law principles still apply?
(4) The government and the defendants contend that the Court should
continue to be deferential to the government in its Tunney Act
review. Is that consistent with the legislative history of the
amended Tunney Act, which purport to overturn this Circuit's
precedents that employed what Congress considered to be too
deferential a standard in evaluating consent decrees?
> Again, who decides? The courts or the government? An interesting
question to eventually drop on Chief Justice Roberts:
"do you still matter?"
(5) What specific evidence is the government relying on for its
assertion that its proposed remedies would replace the competition
that would be lost as a result of the two mergers?
> That "reality based thinking" interferes again.
(6) Has the government provided the Court with sufficient information
for it to make an independent determination as to whether entry of
the proposed consent decrees is in the public interest? If not, what
other information should the government have provided to the Court?
> "Show me!"
(7) What weight, if any, should the Court give to the findings of the
FCC as related to these two mergers?
> >Which< government department is the important one? Please let the
judge know.
(8) Through the eyes of a layperson, the mergers, in and of
themselves, appear to be against public interest given the apparent
loss in competition. In layperson's terms, why isn't that the case?
> An interesting question. Is "the public's interest" for the
public to decide, in their own terms, or is it decided for them?
This could be considered more theological than legal, going back to
the beginning of the enlightenment. Who decides what's best for us? Us?
(9) Why isn't the government's selected remedy broader in time - i.e.
IRUs longer than ten years - and in substance - i.e. focus on the
transport as well as the last-mile connections?
> Another "show me" question.
(10) What consideration should the Court give the arguments of the
Attorney General of New York, Elliot Spitzer, that the mergers will
adversely affect digital subscriber lines ("DSL") and the Internet
backbone?
> This is the elephant in the room.
On 7/10/06, David Farber <dave@xxxxxxxxxx> wrote:
Begin forwarded message:
From: David Bolduc <dbolduc@xxxxxxxxxxxxx >
Date: July 10, 2006 2:43:01 PM EDT
To: Dave Farber <dave@xxxxxxxxxx>
Subject: Fwd: [CYBERTEL] Fwd: Judge Orders Review of Telecom Mergers
For IP, if you like. Forwarded from the Cybertelecom-L list.
Begin forwarded message:
>
>
> Anyone have any comments on this?
>
>> Interesting twist
>>
>> http://www.betanews.com/article/
>> Judge_Orders_Review_of_Telecom_Mergers/1152547014
>
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