*1 McGOWAN, Circuit Judge: narrow, presents case albeit impor-
tant, statutory issue of construction: Does Act of 1970 make it unlawful to enter a joint newspaper operating agreement with- prior approval out the of the Attorney Gen- eral, require prior it rather or does only parties seeking exemp- agreement? tion for such an The District (1968) (separate passing opin- 404 F.2d in a conscientious manner dark, ion). U.S.App.D.C. Davis v. the merits.” *2 756 regu- broadly Supreme more than had the Department Court enjoined a Justice
Court
interpreta-
Publishing.1
in Citizen
the latter
implementing
lation
below, we
set forth
the reasons
tion. For
provided:
Section
reverse.
(a) It shall
any
not
unlawful under
any person
antitrust
law
to propose,
I
into,
enforce, renew,
perform,
enter
or
Act of
Newspaper
The
any joint newspaper operating
amend
congres-
1801-04
was
§§
U.S.C.
if,
rangement
at the time at
such
a successful anti-
against
reaction
sional
into,
arrangement
is or was first entered
of
brought by
trust suit
not more
newspaper pub-
than one of the
Tucson
a combination of
against
Justice
performance
involved in the
lications
of
since 1940. See
newspapers in existence
such arrangement
publication
was a
.other
States,
v. United
Publishing
Citizen
Co.
than a failing newspaper.
from the context of the whole
and that
3. The
bill also limited the
Government asked the District Court to
2. The House Committee
that,
existing joint operat-
pointed
4(a) exemption
reconsider
its decision and
out
section
contrary
by requiring
opinion,
ing arrangements
terms of a re-
in the trial court
all
amendment
to be filed with the De-
were not
newal or
entered
language, along
newspapers.
page-
partment
competing
into
of Justice.
clarifying
U.S.App.D.C.,
of 176
page
additional
floor amendment
of 539 F.2d
759
infra.
amendments
not add addi-
The court denied this motion and reaf-
joint operation, ap-
plain language
firmed its reliance on
tional
legislative history
adopted.
pears
F.Supp.
in
Act as
section
at 53-54.
approval.
eral for his
interpret
really
in
This is not
responsibility
our
fulfilling
situation,
guided by
Depart-
not be
an unusual
since the
‘we must
ing legislation,
sentence,
ment of Justice now
member of a
receives
notice
single sentence' or
provisions
many impending mergers by
par-
look to
but [should]
”
ties,
law,
object
policy.’
seeking
its
who themselves are
‘release’
and to
whole
States,
1, 11,
procedures
letters.
I envision the
v.
U.S.
Richards United
585, 592,
(1962), quoting
to be akin
7 L.Ed.2d
to the ‘release’
S.Ct.
NLRB,
Corp.
technique
employed by
letter
now
Mastro Plastics
U.S.
270, 285,
(1956)
Department.
There has been some concern statement that Senator Dirksen did not in- regarding possibility of new op- tend the result reached by the District erating arrangements being established Court, for declaring it unlawful proceed to under the terms of as introduced. Department without Justice consent does are still some 36 or 37 cities where There not resemble in the slightest the release competing are papers two or more com- letter technique employed by the Depart- And, mercially editorially. as well as ment of Justice.4 genuine expressed there has been a fear unions, papers, newspaper suburban Even if purposes Senator Dirksen’s were segments public and some [sic] visible, not already enlightenment further dangers inherent if some of these is to be obtained from a proviso which he improperly were to enter papers other originally proposed part 4(b): joint operating arrangements into “Provided, however, that any publisher —re- sulting might stronger be a com- in what time, may, any into, at propose, per- enter force, and, jobs, the loss of petitive form, agreement or enforce an eventually independent a maybe, loss person agreement if such prohibit- was not viewpoints. ed law to the effective date of this proposing This is what I had in mind in Act.” explained Senator Dirksen the thrust oper- proviso: Before new of that “The Section at the end of' ating arrangements just could come into be- section is to make sure that we papers involved would be re- ing, inadvertently illegal, have made in fact come before the or quired implication, arrangements to Gen- which are bring procedure, proceeding free to Under that release codified at 28 whatever action or it Justice, subsequently required by 50.6 comes to § C.F.R. believe is public request parties, present can state its interest. As a to stated present respect bring action, intention with enforcement intention not however, an enforcement proposed merger acquisition. resulting the Division has never exercised its only right bring review letter “states the enforce- business criminal action where there has intention of the Division as of the date of been full and true disclosure at the time of the letter, completely request.” the Division remains D.C., (em- at 765 of 539 F.2d. Hearings Judge at 9 Tamm Senate lawful.” now reaches that conclusion based on a review added). phasis of the floor discussion in the Senate con- con- directly position Dirksen’s amendments, cerning noting the House that of the District interpretation trary to proponents opponents of the bill the latter’s view certain Court, since granted version recognized that lawful under the that were a more than had the limited violate nevertheless laws would agree bill. We floor discus- Senate example, 4(b). For suggests sion of the House amendments “approve” be unable would General awareness that the House version Senate’s two agreement between “tighten[ed] respect the standards” with newspapers since non-competitive healthy, “failing” whether a grant approval by statute required he is eligible for the antitrust exemp- therefore than one of that no more he finds only if nothing But there is tion. indicates is “other than involved thought Senate 15 U.S.C. failing newspaper.” illegal made what had amendments been 1802(5) (definition fail- (1970); see id. § lawful under the version. Surely Senate if under the Consequently, ing newspaper). concluded that amended is unlaw- interpretation, District Court’s accomplished House version such a major otherwise lawful ar- enter into an ful to change, the issue would have been discussed simply because the rangement directly rather than couched in terms of not— indeed could did not —and General *5 “tightening” availability the standards for consent. give prior written exemption. itself sheds proviso the history The The various reports point committee 4(b). The purpose of section light on the the same direction as did Dirksen. proviso, the version contained initial Senate setting think it worth out in full the above, We which, was inserted to as we noted Report’s “analysis” 4(b): had been lawful making illegal what avoid Act. Newspaper Preservation prior 4(b) applies joint newspaper to Section dropped when the House was proviso operating arrangements that come into the Commit- reported bill was being after enactment of the bill. Such report in the tee, is no indication but there joint newspaper operating arrangements, was deleted. why exemption as to to have benefit of an from page-of U.S.App.D.C., p. laws, 756 of 539 prior the antitrust must have the urged by was supra. The Sen- F.2d Senate Attorney written consent of the General Hruska, manager of the ator granting of the United Prior to States. floor go version rather than the House adopt approval, re- General is conference, that specifically and he noted quired to determine that not more than “modified the two amendments newspaper publications one of the in- amendments and effected other somewhat was a publication volved other than a go substance of 'the bill.” which did not “failing newspaper” as defined in the (1970) (emphasis add- Cong.Ree. 24434 Act. The General also is re- alone, fail- ed). that evidence Based on quired approval to find that of the ar- sup- proviso provides some ure to enact the rangement policy would effectuate the slight, position for the that port, however purposes of the Act. Section make ille- not intended to contemplates General prior to the Act. had been lawful gal promulgate regulations what will as are such appropriate discharge for the of these concludes that dissent nevertheless responsibilities. quo proviso points of the status “deletion 91-1193, Cong., H.R.Rep. No. 91st 2d Sess. requirement of reasonably to a broad more Cong. & Admin.News arrange- U.S.Code for all future prior approval added). We (emphasis U.S.App. pp. at-of ments.” Dissent one inter- Other Report only suggest factors give the House the District can interpretation to have the benefit of an Court’s namely, does not reflect pretation, Congress. written consent intent of exemption, thing, antitrust For one Con- simply put oper- gress provided required; but neither civil nor criminal effect, penalties arrangement into consent is to enforce the new ating substantive required, though purports absent standard it to find in the statute. fully subject to the The dissent argues remains that this “does not rebut the clear directive that must obtain written consent implementing before Report There is Senate joint operating arrangement,” Dissent at supports interpretation 10; if, think, as we that “directive” is far Court, but when read in the context District “clear,” the absence of an enforce- Report interpreta- entire Senate ment scheme cuts the other way. discussing appears tion strained. Re- legislation Senate purposes Furthermore, earlier, as we noted many that the was intended “to port indicates bill anticompetitive without im- grant exemptions past limited antitrust pact qualify do not for Attorney General . and to make this agreements approval given the statutory standard, and insuring newspaper stability method of that as a result the District Court’s inter- danger of finan- available pretation makes unlawful certain op- collapse passage cial after of the bill.” erating agreements to the News- 91-535, Cong., 1st S.Rep. No. Sess. paper Preservation Act were lawful within (1969) added). it (emphasis Surely is some- meaning of the antitrust laws. See what odd to claim that has made page-of of 539 p. U.S.App.D.C., by declaring “available” supra. F.2d We find such a result anoma- proceed “exemp- without unlawful lous in an Act clearly designed to create an Report, tion.” The like the House exemption to the antitrust- laws. Report, imposition nowhere mentions the brings us to the core of our disagree- liability. a new standard of substantive ment with the District Court’s interpreta- *6 debates, respect to the floor we interpretation
With tion. That necessarily im- only reemphasize point plies need the made that Congress sought to limit respect reports above with to the committee arrangements in newspaper the industry by and Dirksen’s statements. There adding the prior approval obstacle of to the are statements effect that new those that would prohibit- otherwise not be come agreements Attorney must before the ed by the antitrust a view Such approval. General for But such statements suggests Congress perceived special a are consistent with the in, Government’s inter- reason to fear special combinations or a 4(b); indeed, pretation legislators difficulty applying in to, laws the normally expected constantly would not newspaper industry. But we have found no magic or, to reiterate the words “in order to evidence in the matter, for that record — exemption” obtain an antitrust while dis- in any public indicating that such debate — cussing very purpose. to that Rather, a bill directed concerns existed. the record re- have been unable to locate statements purpose We veals that just of the Act was indicating proceed it is unlawful opposite permit in combinations —to Attorney without the General’s written con- industry that would otherwise contrary, sent. To the be prohibited by Government’s the antitrust laws. H.R. Rep. 91-1193, brief collects numerous citations to the floor No. Cong., 2d Sess. 3 indicating (1970), debates the purpose Cong. 1970, of the & Admin.News U.S..Code availability p. bill was well understood —the of (purpose 3547 of the provide Act is a “[t]o an antitrust appropriate in cir- limited exemption from the antitrust laws cumstances voluntary application newspaper operating arrange- therefor. ments entered into in the future with the
761 might of the Gen- have been wiser prior written consent to select this method optional of approval, statute eral and my reading history convince is, terms, Congress’s in This statute own this me that is not choice Congress laws exempt from the antitrust “An Act to made. actually combinations certain failing majority survival of news necessary opinion for the concludes that 466; indeed, very regulation sec papers,” 84 promulgated by Stat. Justice De- captioned partment at issue here accurately tion of the Act is interprets See, Lan Jen exemption.” g., Although great e. “Antitrust is due deference an inter- Commissioner, (1st 696, pretation 486 F.2d 700 Chu v. agency statute 1973) caption department charged used in stat- (language enforcement, Cir. with its of in- provides Co., ute least some evidence Red Broadcasting FCC, Lion Inc. v. 395 367, 381, scheme); 1794, White v. congressional tended U.S. 89 23 L.Ed.2d 371 R., Burlington 417 Chicago, Quincy yield & R. deference patent must 941, 1969) (title act can (8th disregard plain F.2d Cir. and unambiguous construing act). The Act of a e.g., be considered statute. Campbell Brown, self-proclaimed response 662, (5th v. speedy was F.2d 1957); Cir. and, Co., Publishing supra, Gardner, Santiago to Citizen v. F.Supp. 156, such, help failing newspa- designed (D.P.R. 1968). additional
pers, place burdens Similarly, a change interpretation healthy ones. the department, while entitled to some def draftsmanship un- Careful would have erence, granted weight is less than long lan- provision whose doubtedly produced standing policy dating passage the in- guage ambiguously indicates less United Healey, statute. States v. 160 U.S. tended result. But the fact that 16 S.Ct. L.Ed. (1895); with less than desired swiftly acted Tallman, 1, 16, cf. Udall 380 U.S. 85 S.Ct. argue rigid does not degree precision 616, rehearing denied, 13 L.Ed.2d reliance literal text of the statute. upon the 85 S.Ct. L.Ed.2d 283 the court need for It rather alerts challenged While regulation delving deeply congressional into the more promulgated by the first Gen- purpose. Legislative history is a contextual response eral in Preserva- textual of con- purely rather than a tool Act, the interpretation appears tion to con- interpreta- that the struction. We conclude flict with the initial determination of As- Court is at with the tion of the District odds sistant General Richard W. “object Congress. policy” See McLaren, Division, repre- Antitrust who States, supra, 369 U.S. Richards v. United sented of Justice in the *7 585. The decision of the 82 S.Ct. hearings before the Senate. therefore reversed. District Court is expressed disapproval Having Justice’s proposed he noted the Depart- also It is so ordered. ment’s dissatisfaction with Dirksen TAMM, Judge (dissenting): Circuit amendments: bill, as I Senator Dirksen’s read it section The issue in this case is whether give would immunity agree- antitrust Act of effect, but already ments would make rule law re- a substantive creates unlawful, prospective agreements unless newspaper agreements en- quiring all approved by Attorney first General approv- 1970 to obtain tered into after finding failing newspaper on a that a majority al of the General. The involved. requires opinion the Act holds instead oppose this the same rea- those We bill for only for ex- that we and for the advantage oppose of an antitrust sons S. wish to take that, as a matter agree I reason emption. additional While regulatory years governmental without oppose vesting disapproval we principle, and, by General. authority deterring arrangements, new would compel failing papers of the future to sell conduct vio- particular or not Whether think, competitors, to their law, depriving should be decided thus we metro- lates the by prosecutor. a politan and not areas of the benefits of competing the courts policies. editorial staffs and The concept of Before the Hearings on Subcomm. a limited newspaper exemption from anti- Monopoly of the Senate on Antitrust and clearly pervades trust law the Act and the Comm., Cong., 1st Sess. history of its enactment. Hearings”) (emphasis add- (1969)(“Senate ed). again stressed this aver- Mr. McLaren itself, Within the statute this antitrust for Justice in regulatory a function sion to milieu is evident. “Antitrust law” is one of hearings. Hearings on H.R. 279 major defined, 1802(1) terms 15 U.S.C. § Before the Antitrust and Related Bills Sub- legislative and the annulment Comm, on the Judici- comm. of the House holding Publishing of Citizen and similar (1969)(“House Cong., 1st ary, 91st Sess. cases pending on the Act’s effective date testimony this Hearings”). Although may refers to alleging actions antitrust law vio- appear equivocal specific as it relates lations, 1804(a),(b). id. at Even the lan- Department issue of whether the Justice guage (section Act) 4 of the arrangements, approve had to all new emphasizes this relationship. Under sub- interpretation given in pall casts a over the (a), existing section certain particularly true regulation. are declared not “unlawful under any anti- original proposed regulation since did law,” (c) trust while subsection assures that filing requirements not limit the the Act will not “exempt any anti- pers seeking immunity. antitrust any trust law predatory pricing, any preda- Fed.Reg. supra. Regard- discussed tory practice, other conduct . challenged regulation less of whether the which be unlawful under anti- change depart- of heart represents trust engaged law if single entity.” reluctantly exercising its unwanted interpretation issue before us arises responsibility or a belated concern with a because this “unlawful under antitrust law” problem interpretation directly faced language before, appear (b). does not in subsection it does not come to us armed with Instead, provision contemporaneous interpreta- simply the force of a states department. tion of the enforcement Fur- shall be unlawful” to enter into new “[i]t thermore, particularly I am hesitant to ac- arrangements without cept interpretation since it conflicts consent of the General. Custom- language my of the Act and ary rules of statutory construction alone reading legislative history. lend credence to the conclusion that use of the term “unlawful under antitrust laws” in out, majority opinion points
As the there (b) all except subsections evidences Con- question is no that the Newspaper Preser- gressional distinguish intent to passed type vation Act was in an new atmosphere of of violation. The late-blooming history, concern that prose- more- over, cution of Justice convinces me that would the broad unfairly penalize existing joint operating employed in exactly means arrangements which had functioned for says:1 what it all new operating ar- *8 end, language rejected plain meaning aids, 1. This circuit has rule and external each accorded authority which forbids consideration of histo- circumstances, deserved in the ry language when the of the statute is clear and weighed must be judicial the balance of unambiguous. e.g., March v. United judgment.” Frankfurter, Some Reñections on States, U.S.App.D.C. 506 F.2d Reading Statutes, 47 Colum.L.Rev. (1974). Murphy, 1313-15 also Old Maxims (1947). See also Train v. Colorado Public “Plain-Meaning Never Die: The Rule” and - Interest Group, Research -, Statutory Interpretation in the “Modern” Fed- (1976). L.Ed.2d 434 Courts, (1975). eral 75 Colum.L.Rev. 1299 As stated, Frankfurter once “In the Justice Felix There has been rangements prior ap- which do not receive some concern expressed regarding the illegal, regardless possibility joint are of whether of new proval op- erating arrangements being otherwise violate antitrust they would established under the terms of S. as introduced. history compro- of the bill reveals a There are still some 36 or 37 cities where protecting mise measure aimed at labor and two papers or more competing are com- financially competing papers pre- as well as mercially as well editorially. And, as serving competition. editorial Senator there has genuine been a fear expressed Dirksen, proposed his explaining amend- papers, newspaper unions, suburban Act, to section 4 of the stated: segments public some and [sic ] pro- a new which is Sec. dangers inherent if some <5fthese joint any vides that future ar- papers other were improperly enter rangements must have Justice De- joint into operating arrangements —re- partment way, consent. In this the inter- sulting in what might be a stronger com- papers est of the suburban and the unions petitive force, jobs, and, loss of Depart- the Justice will be considered maybe, eventually a loss of independent arrangements new are ment before viewpoints. authorized. This is what I had in mind in proposing 4(a) (b) These two new subsections Section Before new oper- compromise for all provide a reasonable ating arrangements could come into be- parties equities involved. The ing, papers involved would be re- present joint oper- situation in the 22 quired to come before the Gen- maintained; cities will be ating sub- eral for his approval. . Before newspapers pro- and unions will be authorizing urban such in the fu- ture, future; Department excep- and a broad could hear tected other interested parties competing laws has pa- tion to been avoid- — unions, pers, etc.—as well as make its ed. investigation, own in order to be certain Hearings (emphasis added). at 5 He the new is essential expanded upon compromise later justified. and is theme: Further, Section will act as a new designed to offer brake other newspapers which protection a means of to the small subur- might prematurely otherwise turn to weekly newspapers, ban and and to news- joint operating arrangements, without unions, employees paper and their while testing maintaining other means of full preserving separate editorial voices commercial and competition. editorial flourishing now in the 22 cities with at (emphasis added). Id. 8-9 See also Re- It operating arrangements. offers a Hruska, marks of Cong.Rec. which should compromise solution meet 2005-06 the immediate needs of all involved: sponsor As of the amendment and a papers joint operating now in those strong supporter Senator Dirk- rangements, some sen was well aware competing inter- day operations have to turn to ests that proposed would be affected survival; only chance for suburban their legislation. Both the of Jus- compete with the met- tice and the Federal Trade Commission revenue; papers advertising ropolitan strongly opposed fragmen- were to further employed by who are workers tation of the antitrust laws. See Senate significantly, pers; public and most 294-312; Hearings Hearings at interest. 357-403,475-96. addition, the American adopted Bar Association echo- a resolution *9 the 23143 19123 Related Bills Before Anti- Cong.Rec. opposition. ing this Comm, Subcomm. the on unions associated trust of House the a few local (1970). While arrangements Judiciary, Cong., Sess., ser. 90th 2d at existing joint operating with 357-64, Newspaper (1968); Hearings 367-422 on American the supported Ty- 1312 Before the on AFL-CIO, International Subcomm. Antitrust and Guild, Comm, Monopoly Press of Union, England New on the Judi- Senate pographical Sess., 105-72; newspaper ciary, Cong., pt. 1, in the 90th at and others Association 1022-34; 2545-68, 2615-23, at strong disapproval. pt. pt. at registered industry 42-43, 2625-52, Hearings at 56- 2673-97. The Dirksen House amendment Compare 427-28; 404-13, Hearings response with Senate to section was a clear to these 238-49, also House Hear- concerns. at 287-90. See 427; 414-20, Cong.Rec. 23175 ings at majority opinion heavily relies on the publishing Both proviso to the Dirksen amendment which allowing fu- expressed fear that employees maintained the legal status of activi- anti- arrangements unduly ture would be illegal ties not existing under antitrust laws jobs. cause competitive and would loss of provision at that time. if this Even would England Press Association The New against require- have militated absolute legislation “designed was claimed that approval suggested change from central prevent to this natural 4(b),2 rejected remainder of was section strong newspapers” to suburban city dailies and, upon reconsideration, by damage great “do to individual and would Senate. The House Commit- Hearings at owners.” House favorably reported tee the bill in the form Loeb, publisher of the Man- 427. William which section now appears. No indi- Leader, cautioned the com- chester Union cation in the report explains why Dirk- mittee that sen amendment only partially was accepted. [tjhere weekly papers are thousands Hruska, Senator floor manager for the bill States, United throughout whole its House, return from the urged newspapers, small adopting [Commit- of the House version without hav- heard, are tee have not who go ing members] conference. As for violently opposed legislation. Un- to this changes, he only: stated fortunately neither the means they have just week, The other body, last modified bring effectively nor association to so the two amendments somewhat and ef- larger their views as have the to bear fected other amendments which did not impor- this is the newspapers, BUT—and go the substance of the bill. thing to read- tant remember —their total Cong.Rec. (1970) (emphasis add- very large indeed. ership is ed). While the statement intimates that Hearings at 510. The House minor, the House amendments were jobs loss while the Interna- Guild claimed supporters opponents of the bill recog- hor- Typographical tional Union recounted major changes nized the substantive creat- problems ror stories labor encoun- ed House. One minimally alteration existing arrangements. acknowledged tered by Senator Hruska was the problems 289-90. These Hearings fact the House bill created far more greater articulated in detail in the exemption been limited than had had the Senate ver- hearings newspaper pres- on sion.3 Since change 1967-68 this substantial Hearings H.R. e.g. Hruska, brushed off lightly bills. re- ervation ing arrangements might requiring have that this terms of a It is conceivable re- expand Gener- newal or to be amendment filed with the intended De- been arrangements partment approve language, along not con- power Justice. with al’s principles general clarifying rather additional flicting floor amendment types amendments not add addi- to limit than joint operation, tional ap- approval. obtain must pears adopted. in the Act as bill also limited the Committee operat- existing joint 4(a)
765 price fixing the Dirksen to come into on his statement existence. liance Any “somewhat” agreements approved had been modified new must be amendment agree rather with the I would in risky. advance General. seems the district court evaluation thoughtful quo of the status deletion
that deliberate
that,
I
compro-
Id.
believe
in this
reasonably to a broad
points more
setting,
pro-
mise
the House deletion of the
all
approval for
future
requirement
protect
viso reflects a desire to
even more
particularly
seems
arrangements.
completely
groups
labor
and suburban
since,
arguments
spite
in
of vociferous
true
sparked
whose interests had
the Tucson case
settlement
final
Senator Dirksen’s amendment.
law allowed
that current antitrust
proved
majority
argues
The
also
that if
all,
most,
joint operating
of the
if not
liability
had intended
new standard
for
failing papers, pro-
rangements needed for
all future
operating arrangements
upon
insisted
of the bill still
ponents
provided
would have
penal-
civil or criminal
See,
in section 4.
e.
provided
exemptions
ties,
whereas the
(1970).
1802-03
In order
Cong.Rec.
116
g.,
penalty
Act has no
section. Although I
believe,
I
exemptions,
these
to maintain
readily agree that
this omission may indi-
accepted further
limitations in
proponents
thorough
cate a lack of
planning by Con-
4(a)
strengthened
prior ap-
gress, it does not rebut
the clear directive
assuage
the fears
proval
must obtain written con-
Excerpts
opposed
those who
the bill.
implementing
sent before
quid
illustrate the
debate
arrangement.
Act, applying
The
as it does
pro quo nature of section
law,
to federal
may
have created a
addition,
...
Mr. McCulloch.
specific
new
subject
antitrust violation
prospective application
excep-
of this
penalty
provisions
enforcement
carefully
circumscribed
tion now
Act,
the Federal Trade Commission
requiring the consent of
Act,
Clayton
Sherman Anti-Trust
and the
joint newspaper
General for
future
See, e.g.,
3-4,
Act.
15 U.S.C. §§
15-15a,
arrangements.
21, 25,
(1970);
1-2,45, 50,
as amended
§§
(1970).
Cong.Rec. 23148
(Supp.
1974).
IV
violation
form
Recognizing
Mr. Railsback.
.
.
the basis for
implying right for the Attor-
part
of the
inactivity
the historic
injunctive
ney General
seek
relief. Per-
agencies and the reliance
enforcement
remedies,
haps civil
as suggested by appel-
inactivity by
such
various
lee,
18,
Appellee’s Br. at
are appropriate.
existing
pers
effecting
currently
noted,
As the trial court properly
this suit
joint newspaper operating arrangements,
challenging
regulation
the interim
does not
provides
relatively
more liberal
the bill
what,
present
any,
the issue of
if
remedy is
determining
for
whether the an-
standard
applied.
F.Supp.
at 52-53.
If
exemption applies to such ar-
titrust
arises,
and when
question
the court
Nevertheless,
rangements.
prospective will
apply
guidelines
be able to
the recent
availability
of the
has been
Supreme
implied
as to
Court
reme
sharply
by requiring
restricted
the con-
Ash,
e.g.,
66,
dies.
Cort
General
sent
2080,
(1975);
S.Ct.
improve
Borak,
for new
377 U.S.
84 S.Ct.
making it more difficult
Comment,
sharing
agreements providing
profit
L.Ed.2d
See also
Pri-
Amtrak and more than one
newspaper publica-
Action Under
Rights of
vate
*11
Implication,
for
tions
Implications
arrangement
pub-
involved in the
is a
Ash: Some
Comment,
(1975);
failing
lication other than a
newspaper,
123 U.Pa.L.Rev.
and
Private Ac-
Implied
approval
arrangement
of such
The Phenomenon
would
Judicial In-
effectuate
policy
purpose
Federal Statutes:
tions Under
of this
Oversight
Legislation
chapter.”
1803(b) (1970).
or
15 U.S.C.
sight, Legislative
§
Department argues
43 Fordham L.Rev.
Justice
that since
Judiciary?,
many
Congress
when
(1974).
only
non-anticompetitive
arrangements
I observe
could
test,
illegal
approved
conduct
not be
Congress
declared
under this
past
has in the
remedy,
possibly
the courts
could not
have intended this
prescribing
result.
without
capable
fashion-
have shown themselves
The compromise
measure selected
carry
to
out the
ing
procedures
enforcement
legislature
acknowledged
is an
deviation
See, e.g.,
v.
legislative scheme.
Sullivan
principles.
from basic antitrust
It is not
229, 238,
Park, Inc.,
Hunting
396 U.S.
Little
that, just
Congress exempt-
unthinkable
(1969);
400, 24
Jones v.
L.Ed.2d
ed
newspaper profit
certain
pooling and
Co.,
414 n.
Mayer
Alfred H.
392 U.S.
price fixing arrangements
from the anti-
(1968)
20 L.Ed.2d
88 S.Ct.
laws,
subjected
trust
it
industry
also
remedy from 42
(implying equitable
U.S.C. more stringent
requirements for any coop-
(1970)
guarantees
to all citi-
erative
pointed
ventures. As
out frequent-
right “enjoyed by
zens the
white citizens”
ly during
discussion of the
Congress
There is no
dispose
property).4
to own or
already
had
special
carved out
antitrust
judiciary
would
reason
believe
banks,
rules
agricultural cooperatives,
for
carry-
this same skill in
apply
be unable to
professional
sports.
e.g., 116
ing
policies
out the dual
Cong.Rec. 1789
Preservation Act.
course,
equally possible
Of
it is
majority opinion
points
also
out that
subjecting
arrangements
all
approval,
joint
definition of a
very
the Act’s
broad
protecting
thus
unions and other
operating agreement5
many
covers
ar-
results,
pers from adverse
Congress simply
rangements which would not have been ille-
which,
protect
failed to
another interest
if
laws,
gal
e.g., using
antitrust
considered
pressing
under less
time stric-
fixing
joint production
tures,
facilities without
ad-
it might decide to foster. Our func-
vertising or circulation rates. The standard
statute, however,
tion in interpreting the
is
gauge
which the
General must
guess
not to second
what
would
submitted for his
today
problem
decide
if this
of the industry
stringent:
presented
he must “determine that not were
resolution.
many
We note also the
instances where
or other
entered into
two or
private
courts have fashioned
remedies
publication
more
owners for the
regulatory legislation
only govern-
prescribing
newspaper publications, pur-
of two or more
See, e.g.,
mental
J. I.
v.
enforcement.
Case Co.
production
suant
or
common
Borak,
377 U.S.
84 S.Ct.
12 L.Ed.2d
operated
facilities are established or
(1964) (private right
of action under sec-
agreed
or unified action is taken or
to be
14(a)
Exchange
tion
of the Securities
Act of
respect
taken with
one or more of the
1934); Fitzgerald v. Pan American World Air-
time, method,
following: printing;
and field
Inc.,
ways,
(2d
1956) (private
Cardozo whether pause consider a statute dif- AMERICAN TELEPHONE AND TELE- ferently conceived and framed would COMPANY, Appellant, GRAPH results more consonant with fair- yield take this ness and reason. We statute as we find it.” . . An omission at the FEDERAL COMMUNICATIONS enactment, time of whether careless or COMMISSION, calculated, judicially supplied cannot be
however much later wisdom recom- Corporation MCI Telecommunications *12 mend the inclusion. Systems, United States Transmission Frankfurter, Inc., supra note at 534. The Intervenors. interpret according court must the Act No. 74-1953. history, relying its terms and its on Con- gress legislation to remedy is overin- United States Appeals, Court of clusive under-reflective. District of Columbia Circuit. passing Argued Sept. Act, Congress attempted to balance the perceived of what it competing interests Decided July industry against threatened dangers anticompetitive practices. highly opposed by controversial organizations unions and national of subur- newspapers,
ban was amended numerous allay the fears of its opponents times few newspapers that a would be benefited expense industry. at the of the entire prior approval concept, presented first amendment,
the Dirksen introduced an ele- governmental supervision ment of to limit arrangements. use of future not have considered all the ramifica- imposing requirement tions of on every agreement regardless compli- future of its laws, legisla- ance with other antitrust eager prevent private litigation tors against existing arrangements may have provide adequately
failed to for enforce- compromise ment of the measure. These however, possibilities, unfortunate do not change Congress appears the fact that agree- have selected a wherein all scheme subject prior approval. ments would I must conclude with the district court that expansive language 4(b), calculated,”
“whether careless or is clear supported history. For respectfully these reasons I dissent.