Judge Stays Order in SBC Case

(February 11, 1998)  U.S. District Court Judge Joe Kendall granted the defendants' motion for a stay of his December 31 order, pending disposition of defendants' appeal.  Kendall ruled on the last day of 1997 that Sections 271-275 of the Telecommunications Act of 1996 are unconstitutional.  These sections bar Bell Operating Companies (BOCs) from offering long distance telephone services until the FCC agrees that they have opened their local markets to competition.

However, Kendall refused to go a step further and bar the plaintiffs from preparing to, or actually selling, long distance service to customers.

Kendall's December 31 "Memorandum Order and Opinion" ruled that the Telecom Act's barring of BOCs from providing long distance services violated the principle of separation of powers, and more specifically, the Bill of Attainder clause of the Constitution.

In a commentary rare in judicial order, Judge Kendall wrote that "... this case isn't so much about Milt Friedman vs. Kenneth Galbraith as it is about James Madison."  Friedman is an opponent of government regulation of markets, while Galbraith is a widely published proponent.  James Madison was one of the leading delegates in the Constitutional Convention in 1787 which drafted the Constitution, and one of three authors of the Federalist Papers, advocating ratification of the Constitution.   He authored Federalists Numbers 47-51, regarding separation of powers, and Number 44, regarding Bills of Attainder.