Judge in Baby Bells case does his duty, but won't take the blame


WASHINGTON -- For years, Harold H. Greene has lived, good-naturedly, with a reputation as the man who caused America's telephones to stop working.

Judge Greene, a genuinely funny man in private (and sometimes in public, too), can appreciate the sarcastic humor behind that complaint.

He is a federal judge with a thick skin, who comfortably hears and tells jokes on himself about the decision nine years ago to break up the telephone company -- in fact, the entire Bell System. That decision brought competition -- and sometimes chaos, static, malfunction or maddening silence -- to telephone service.

Last week, he issued another bold decision affecting that industry, one that could start another revolution in America's telephone habits. Again, he complained sharply of the bad behavior he finds among telephone managers and expressed his faith that competition would be the cure.

This time, though, there were very big differences. For one: He ruled for the industry, not against it. He did not want to rule as he did, and in fact gave more reasons against than for his decision. Moreover, he predicted that it all will come out wrong, in practical terms. Finally, however, he made it very clear that, if the outcome is bad, America won't have Harold Greene to blame this time.

Backing down on two of his prior orders, "with considerable reluctance," he ruled that the regional telephone companies -- the so-called "Baby Bells" -- could be set legally free to become peddlers through the telephone of all kinds of consumer and other information: everything from store bargains to personal medical records.

The ruling, if it becomes effective after an expected appeal, might play a role in a new style of modern living: People could manage much of their personal affairs, or satisfy personal appetites, needs or curiosity, through the home telephone and a computer linked to it. Telephone companies could become vast new publishing enterprises, no longer just the messengers of others' messages.

But Judge Greene, in a near-classic "devil-made-me-do-it" court opinion, predicted corporate mayhem in the industry as a result of his ruling, then put all the blame, if that does occur, on the court that sits three floors above him in the U.S. Courthouse here: the U.S. Circuit Court of Appeals.

Mr. Greene is a judge whose power is often viewed as awesome by the telephone industry. But he is a judge on a trial court -- the first level -- and he does not always have the last word. On legal points, he can be overruled by the Circuit Court.

Last year, the Circuit Court did just that, ruling that Judge Greene had imposed too strict a test on the Baby Bells' option of selling information and that he had not taken seriously enough the Justice Department's views. That court virtually dictated a new ruling that Judge Greene made abundantly clear he would rather not have to make. But, seeing it as his duty to obey, he

decided to grant the Baby Bell companies permission to start distributing information that they themselves will generate -- permission he had denied twice before, in the original Bell breakup order in 1982 and again in 1987 after a review.

If consumers don't get the great things the regional telephone companies are now promising in the information field, the judge indicated, it will be because the Court of Appeals essentially denied him the usual authority of a judge to examine the evidence and make the decision that he saw fit.

For 53 pages, he cataloged the evidence that, he said, had convinced him that the Baby Bells should be kept out of this new line in the information business. Then, for a mere 15 pages, he said why he was going to allow them into it -- "in view of the requirements imposed" upon him by the Circuit Court.

In his 53 pages of anti-Baby Bell declarations, the judge argued ++ that a ruling in their favor would lead the Baby Bells to resort to trickery and questionable corporate manipulation to drive out their remaining competitors, then offer consumers only cheaper-to-produce services at inflated profits.

If the Circuit Court had left him free to make up his own mind, Judge Greene said, he would deny the regional companies the (( chance to get such a "stranglehold on information."

He dismissed as "preposterous" the Baby Bells' claim that those companies had to get into the information-generating business if it was going to be made better. He rejected as "so much hype" a claim that their entry into that line "would usher in an era of sophisticated information services available to all."

The judge said it was "far more probable . . . that, once they [the Baby Bells] are allowed to enter the information services market, many of those who now provide such services and which currently make the market so robust and rapidly expanding will be driven out of business by the anti-competitive strategies which, on the basis of past experience, the regional companies will likely adopt.

"As a consequence, competition in the market will suffer or be extinguished."

And, he added, "experience suggests that, once these companies have achieved the removal of [the bar to their entry into] information services, ample reasons will be found and cited why the more expensive promises could not be fulfilled."

Judge Greene was just as hard on the Justice Department, which had sided this time with the Baby Bells, as he was on those companies. None of the department's key arguments, the judge ruled, was supported by any "credible evidence" before him.

But, he said, the Circuit Court required him to defer to the department's "current conclusions." (He noted in a footnote dripping with implied ridicule that the department itself previously had wanted the Baby Bells kept out of the information-generating business.

Then, saying that he would be a good soldier-judge (contrasting himself with lower court judges who had refused to carry out faithfully the Supreme Court's school desegregation ruling), Judge Greene gave in and ruled for the Baby Bells.

But, in the concluding 2 1/2 pages of his opinion, the judge postponed the Baby Bells' enjoyment of his ruling, and gave even more reasons why readers of the decision should understand that the Circuit Court was calling the shots.

He said he might have misread what the Circuit Court had demanded he do, so he formally delayed his ruling until after it could be reviewed by that court in an appeal. The final blame, it was clear, would lie there.

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