Judicial policymaking: The greeneing of US telecommunications

Abstract

The reconfiguration of the US telecommunications industry since 1982 is to an important extent the result of judicial activity.’ Judge Harold H. Greene of the Federal District Court of Columbia, in a series of decisions made under US antitrust law, has been the major catalyst in the transformation of this formerly monolithic industry. Before 1982, the American Telegraph and Telephone Company (AT&T) was the US telecommunications industry. Today, following its break-up or divestiture, AT&T operates in a fast-moving environment where it must compete with new market entrants. How this transformation came about has been extensively documented.2 One of the lengthiest antitrust actions in US history ended in a settlement or Consent Decree. AT&T agreed to divest itself of the bulk of its operations. It retained its long-distance service and its manufacturing operations, but would now face competition in both those markets. As a quid pro quo, it would be permitted to enter the lucrative computer and electronics enhanced service market segment. The largest corporation in the world, “Ma Bell,” was thus effectively “unbundled.” Since these momentous events, the US telecommunications industry has been in turmoil. In particular, policy-making and policy objectives have become diffused and, in the view of some critics, confused. At the centre of this policy maelstrom is the figure of Judge Harold H. Greene. In an increasingly disjointed policy arena, his role has been essentially synoptic. He, more than any other person or institution, provides the focus for major policy issues in US telecommunications. Unquestionably, Judge Greene is widely perceived as making, or at least influencing, industrial policy in this field.