[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Notices]
[Pages 67448-67461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26886]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Media General, Inc. and Lin Media LLC; Proposed
Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Asset Preservation Stipulation, and Competitive Impact Statement have
been filed with the United States District Court for the District of
Columbia in United States of America v. Media General, Inc. and LIN
Media LLC, Civil Action No. CV-14-01823. On October 30, 2014, the
United States filed a Complaint alleging that the proposed acquisition
by Media General, Inc. of LIN Media LLC would likely substantially
lessen competition for broadcast television spot advertising in certain
Designated Market Areas (DMAs) in the United States, in
[[Page 67449]]
violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed
Final Judgment, filed on the same day as the Complaint, resolves the
case by requiring Media General to divest WVTM-TV(NBC), located in the
Birmingham, Alabama DMA; WJCL (ABC) and WTGS (FOX), both located in the
Savannah, Georgia DMA; WALA-TV (FOX), located in the Mobile, Alabama/
Pensacola, Florida DMA; WJAR (NBC), located in the Providence, Rhode
Island/New Bedford, Massachusetts DMA; and WLUK-TV(FOX) and WCWF (CW),
both located in the Green Bay/Appleton, Wisconsin DMA. A Competitive
Impact Statement filed by the United States describes the Complaint,
the proposed Final Judgment, and the industry.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection at the Department of
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481),
on the Department of Justice's Web site at http://www.usdoj.gov/atr,
and at the Office of the Clerk of the United States District Court for
the District of Columbia. Copies of these materials may be obtained
from the Antitrust Division upon request and payment of the copying fee
set by Department of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments, including the name of the submitter, and
responses thereto, will be posted on the U.S. Department of Justice,
Antitrust Division's internet Web site, filed with the Court and, under
certain circumstances, published in the Federal Register and filed with
the Court. Comments should be directed to David Kully, Chief,
Litigation III, Antitrust Division, Department of Justice, Washington,
DC 20530, (telephone: 202-305-9969).
Patricia A. Brink,
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America, Department of Justice, Antitrust
Division, 450 Fifth Street NW., Suite 4000, Washington, DC 20530,
Plaintiff, v. Media General, Inc., 333 E. Franklin Street, Richmond,
VA 23219 and LIN Media LLC, 701 Brazos Street, Suite 800, Austin, TX
78701, Defendants.
Case No. 1:14-cv-01823
Judge: Hon. Emmet G. Sullivan
Filed: 10/30/2014
Complaint
The United States of America, acting under the direction of the
Attorney General of the United States brings this civil action to
enjoin the proposed acquisition by Media General, Inc. (``Media
General'') of LIN Media LLC (``LIN'') (collectively, ``Defendants'')
and to obtain other equitable relief. The proposed acquisition likely
would substantially lessen competition in the sale of broadcast
television spot advertising in the following Designated Market Areas
(``DMAs''): Mobile, Alabama/Pensacola, Florida; Birmingham, Alabama;
Savannah, Georgia; Providence, Rhode Island/New Bedford, Massachusetts;
and Green Bay/Appleton, Wisconsin (collectively ``the DMA Markets''),
in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. Plaintiff
alleges as follows:
I. Nature of the Action
1. Pursuant to a Purchase Agreement dated March 21, 2014, Media
General agreed to purchase LIN whereby LIN shareholders would receive
aggregate consideration valued at approximately $1.5 billion in a
combination of stock and cash.
2. Media General and LIN both own and operate broadcast television
stations in each of the DMA Markets. Media General's and LIN's
broadcast television stations compete head-to-head for the business of
local and national companies that advertise on broadcast television
stations in each of the DMA Markets.
3. If consummated, the proposed acquisition would eliminate the
head-to-head competition between Media General and LIN in each of the
DMA Markets. Unless enjoined, the acquisition is likely to lead to
higher prices and will substantially lessen competition for broadcast
television spot advertising in each of the DMA Markets in violation of
Section 7 of the Clayton Act, 15 U.S.C. 18.
II. Jurisdiction and Venue
4. The United States brings this action pursuant to Section 15 of
the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain
Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
5. Defendants sell broadcast television spot advertising, a
commercial activity that substantially affects, and is in the flow of,
interstate commerce. The Court has subject-matter jurisdiction over
this action pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25,
and 28 U.S.C. 1331, 1337(a), and 1345.
6. Defendants transact business and are found in the District of
Columbia, and are subject to the personal jurisdiction of this Court.
Defendants have consented to venue and personal jurisdiction in this
District. Therefore, venue is proper in this District under Section 12
of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(c).
III. The Defendants
7. Media General is incorporated in the Commonwealth of Virginia,
with its headquarters in Richmond, Virginia. Media General reported
operating revenues of over $270 million in 2013. Media General owns and
operates 31 broadcast television stations in 29 metropolitan areas. It
owns and operates broadcast television stations in each of the DMA
Markets.
8. LIN is a Delaware corporation, with its headquarters in Austin,
Texas. LIN owns and operates, or provides programming, operating, or
sales services to more than 50 stations in 23 metropolitan areas. It
also owns and operates, or provides programming, operating, or sales
services to broadcast television stations in each of the DMA Markets.
IV. Trade and Commerce
A. Broadcast Television Spot Advertising Is a Relevant Product Market
9. Broadcast television stations attract viewers through their
programming, which is delivered for free over the air or retransmitted
to viewers, mainly through wired cable or other terrestrial television
systems and through satellite television systems. Broadcast television
stations then sell advertising time to businesses that want to
advertise their products to television viewers. Broadcast television
``spot'' advertising, which comprises the majority of a television
station's revenues, is sold directly by the station itself or through
its national representative on a localized basis and is purchased by
advertisers who want to target potential customers in specific
geographic areas. Spot advertising differs from network and syndicated
television advertising, which are sold by television networks and
producers of syndicated programs on a nationwide basis and broadcast in
every market where the network or syndicated program is aired.
10. Broadcast television spot advertising possesses a unique
combination of attributes that set it apart from advertising using
other types of media. Television combines sight, sound, and motion,
thereby creating a more memorable advertisement. Moreover, of all
media, broadcast television spot advertising generally
[[Page 67450]]
reaches the largest percentage of all potential customers in a
particular target geographic area and is therefore especially effective
in introducing, establishing, and maintaining the image of a product.
For a significant number of advertisers, broadcast television spot
advertising, because of its unique combination of attributes, is an
advertising medium for which there is no close substitute. Other media,
such as radio, newspapers, or outdoor billboards, are not desirable
substitutes for broadcast television advertising. None of these media
can provide the important combination of sight, sound, and motion that
makes television unique and impactful as a medium for advertising.
11. Like broadcast television, subscription television channels,
such as those carried over cable or satellite television, combine
elements of sight, sound, and motion, but they are not a desirable
substitute for broadcast television spot advertising for two important
reasons. First, satellite, cable, and other subscription content
delivery systems do not have the ``reach'' of broadcast television.
Typically, broadcast television can reach well-over 90% of homes in a
DMA, while cable television often reaches many fewer homes. Even when
several subscription television companies within a DMA jointly offer
cable television spot advertising through a consortium called an
interconnect, cable spot advertising does not match the reach of
broadcast television spot advertising. As a result, an advertiser can
achieve greater audience penetration through broadcast television spot
advertising than through advertising on a subscription television
channel. Second, because subscription services may offer more than 100
channels, they fragment the audience into small demographic segments.
Because broadcast television programming typically has higher rating
points than subscription television programming, broadcast television
provides a much easier and more efficient means for an advertiser to
reach a high proportion of its target demographic. Media buyers often
buy time on subscription television channels not so much as a
substitute for broadcast television, but rather to supplement a
broadcast television message, to reach a narrow demographic (e.g., 18-
24 year olds) with greater frequency, or to target narrow geographic
areas within a DMA. A small but significant price increase by broadcast
television spot advertising providers would not be made unprofitable by
advertisers switching to advertising on subscription television
channels.
12. Internet-based media is not currently a substitute for
broadcast television spot advertising. Although Online Video
Distributors (``OVDs'') such as Netflix and Hulu are important sources
of video programming, as with cable television advertising, the local
video advertising of OVDs lacks the reach of broadcast television spot
advertising. Non-video internet advertising, e.g., Web site banner
advertising, lacks the important combination of sight, sound, and
motion that gives television its impact. Consequently, local media
buyers currently purchase internet-based advertising primarily as a
supplement to broadcast television spot advertising, and a small but
significant price increase by broadcast television spot advertising
providers would not be made unprofitable by advertisers switching to
internet-based advertising.
13. Broadcast television stations generally can identify
advertisers with strong preferences for using broadcast television
advertising. Broadcast television stations negotiate prices
individually with advertisers and consequently can charge different
advertisers different prices. During the individualized negotiations on
price and available advertising slots that commonly occur between
advertisers and broadcast television stations, advertisers provide
stations with information about their advertising needs, including
their target audience. Broadcast television stations could profitably
raise prices to those advertisers who view broadcast television as a
necessary advertising medium, either as their sole means of advertising
or as a necessary part of a total advertising plan.
14. Accordingly, the sale of broadcast television spot advertising
is a line of commerce under Section 7 of the Clayton Act and a relevant
product market for purposes of analyzing the proposed acquisition under
Section 7 of the Clayton Act.
B. Each of the Divestiture Markets Is a Relevant Geographic Market
15. DMAs are geographic units defined by the A.C. Nielsen Company,
a firm that surveys television viewers and furnishes broadcast
television stations, advertisers, and advertising agencies in a
particular area with data to aid in evaluating audience size and
composition. DMAs are ranked according to the number of households they
contain. Signals from broadcast television stations located in a DMA
Market reach viewers located throughout the DMA, but signals from
broadcast television stations located outside the DMA reach few viewers
within the DMA. DMAs are used to analyze revenues and shares of
broadcast television stations in the Investing in Television BIA Market
Report 2014 (1st edition), a standard industry reference.
16. Advertisers use broadcast television stations within each of
the DMA Markets to reach the largest possible number of viewers across
the DMA. Some of these advertisers are located in each of the DMA
Markets and need to reach customers there; others are regional or
national businesses that want to target consumers across each of the
DMA Markets. Advertising on television stations outside each of the DMA
Markets is not an alternative for these advertisers because such
stations cannot be viewed by a significant number of potential
customers within each of the DMAs. Thus, if there were a small but
significant increase in broadcast television spot advertising prices
within a specific DMA Market, an insufficient number of advertisers
would switch advertising purchases to television stations outside that
DMA to render the price increase unprofitable.
17. Accordingly, each of the DMA Markets is a section of the
country under Section 7 of the Clayton Act and a relevant geographic
market for the sale of broadcast television spot advertising for
purposes of analyzing the proposed acquisition under Section 7 of the
Clayton Act.
C. The Proposed Acquisition Would Harm Competition in Each of the DMA
Markets
18. Broadcast television stations compete for advertisers through
programming that attracts viewers to their stations. In developing
their own programming and in considering the programming of the
networks with which they may be affiliated, broadcast television
stations try to select programs that appeal to the greatest number of
viewers and to differentiate their stations from others in the same DMA
by appealing to specific demographic groups. Advertisers, in turn, are
interested in using broadcast television spot advertising to reach both
a large audience and a high proportion of the type of viewers that are
most likely to buy their products.
19. Broadcast station ownership in each of the DMA Markets is
already significantly concentrated. In each of these markets, four
stations, each affiliated with a major network, had more than 90
percent of gross advertising revenues in 2013. In the
[[Page 67451]]
Mobile, Alabama/Pensacola, Florida DMA, the three stations that Media
General and LIN operate have approximately 54 percent of all television
station gross advertising revenues in that DMA. In the Birmingham,
Alabama DMA, the two stations that Media General and LIN operate have
approximately 34 percent of all television station gross advertising
revenues in that DMA. In the Savannah, Georgia DMA, the three stations
that Media General and LIN operate have approximately 55 percent of all
television station gross advertising revenues in that DMA. In the
Providence, Rhode Island/New Bedford, Massachusetts DMA, the three
stations that Media General and LIN operate have approximately 83
percent of all television station gross advertising revenues in that
DMA. In the Green Bay/Appleton, Wisconsin DMA, the three stations that
Media General and LIN operate have approximately 59 percent of all
television station gross advertising revenues in that DMA.
20. Using the Herfindahl-Hirschman Index (``HHI''), a standard
measure of market concentration (defined and explained in Appendix A),
a combination of Media General's and LIN's broadcast television
stations in each of the DMA markets would result in both a large change
in concentration and a highly concentrated market. The post-acquisition
HHI in each of the DMA Markets would be over 2500 with an increase in
the HHI of more than 500 points. Under the Horizontal Merger Guidelines
issued by the Department of Justice and the Federal Trade Commission,
mergers resulting in highly concentrated markets (with an HHI in excess
of 2500) and with an increase in the HHI of more than 200 points are
presumed to be likely to enhance market power.
21. In addition to increasing concentration in the DMA Markets, the
proposed transaction combines stations that are close substitutes and
vigorous competitors in markets with limited alternatives. In each of
the DMA Markets, Defendants have broadcast stations that are affiliated
with the major national television networks, ABC, CBS, NBC, and FOX.
Their respective affiliations with those networks, and their local news
operations, provide Defendants' stations with a variety of competing
programming options that are often each other's next-best or second-
best substitutes for many viewers and advertisers.
22. Advertisers benefit from Defendants' head-to-head competition
in the sale of broadcast television spot advertising in each of the DMA
Markets. Advertisers purposefully spread their advertising dollars
across numerous spot advertising suppliers to reach their marketing
goals most efficiently. After the proposed acquisition, advertisers in
each of the DMA Markets would likely find it more difficult to ``buy
around'' the Defendants' combined stations in response to higher
advertising rates, than to ``buy around'' Media General's stations or
LIN's stations, as separate entities, as they could have done before
the proposed acquisition. Because a significant number of advertisers
would likely be unable to reach their desired audiences as effectively
unless they advertise on at least one station that Media General would
control after the proposed acquisition, those advertisers' bargaining
positions would be weaker, and the advertising rates they pay would
likely increase.
23. Accordingly, the proposed acquisition is likely to
substantially reduce competition and will restrain trade in the sale of
broadcast television spot advertising in each of the DMA Markets.
D. Lack of Countervailing Factors
1. Entry and Expansion Are Unlikely
24. De novo entry into each of the DMA Markets is unlikely. The FCC
regulates entry through the issuance of broadcast television licenses,
which are difficult to obtain because the availability of spectrum is
limited and the regulatory process associated with obtaining a license
is lengthy. Even if a new signal became available, commercial success
would come, at best, over a period of many years. In each of the DMA
Markets, all of the major broadcast networks (CBS, NBC, ABC, FOX) are
already affiliated with a licensee, the contracts last for many years,
and the broadcast networks rarely switch licensees when the contracts
expire. Thus, entry into each DMA Market's broadcast television spot
advertising market would not be timely, likely, or sufficient to deter
Media General from engaging in anticompetitive price increases or other
anticompetitive conduct after the proposed acquisition occurs.
25. Other broadcast television stations in each of the DMA Markets
could not readily increase their advertising capacity or change their
programming sufficiently in response to a price increase by Defendants.
The number of 30-second spots in a DMA is largely fixed by programming
and time constraints. This fact makes the pricing of spots very
responsive to changes in demand. During so-called political years, for
example, political advertisements crowd out commercial advertising and
make the spots available for commercial advertisers more expensive than
they would be in nonpolitical years. Adjusting programming in response
to a pricing change is risky, difficult, and time-consuming. Network
affiliates are often committed to the programming provided by the
network with which they are affiliated, and it often takes years for a
station to build its audience. Programming schedules are complex and
carefully constructed, taking many factors into account, such as
audience flow, station identity, and program popularity. In addition,
stations typically have multi-year contractual commitments for
individual shows. Accordingly, a television station is unlikely to
change its programming sufficiently or with sufficient rapidity to
overcome a small but significant price increase imposed by Defendants.
2. The Alleged Efficiencies Do Not Offset the Harm
26. Although Defendants assert that the proposed acquisition would
produce efficiencies, they cannot demonstrate acquisition-specific and
cognizable efficiencies that would be sufficient to offset the proposed
acquisition's anticompetitive effects.
V. Violations Alleged
27. Plaintiff hereby repeats and realleges the allegations of
paragraphs 1 through 26 as if fully set forth herein.
28. The proposed acquisition likely would lessen competition
substantially in interstate trade and commerce, in violation of Section
7 of the Clayton Act, 15 U.S.C. 18. The proposed acquisition likely
would have the following effects, among others:
a. Competition in the sale of broadcast television spot advertising
in each of the DMA Markets would be lessened substantially;
b. competition among Media General and LIN in the sale of broadcast
television spot advertising in each of the DMA Markets would be
eliminated; and
c. the prices for spot advertising time on broadcast television
stations in each of the DMA Markets would likely increase.
29. Unless restrained, the proposed acquisition would violate
Section 7 of the Clayton Act, 15 U.S.C. 18.
VI. Request for Relief
30. Plaintiff requests:
d. That the Court adjudge the proposed merger to violate Section 7
of the Clayton Act, 15 U.S.C. 18;
e. that the Court permanently enjoin and restrain Defendants from
carrying
[[Page 67452]]
out the transaction, or entering into any other agreement,
understanding, or plan by which Media General would acquire LIN, unless
Defendants divest the broadcast television stations in accordance with
the proposed Final Judgment and Hold Separate Stipulation and Order
filed concurrently with this Complaint;
f. that the proposed Final Judgment giving effect to the
divestitures be entered by the Court after compliance with the
Antitrust Procedures and Penalties Act, 15 U.S.C. 16;
g. that the Court award Plaintiff the costs of this action; and
h. that the Court award such other relief to Plaintiff as the Court
may deem just and proper.
Respectfully submitted,
For Plaintiff United States:
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William J. Baer (D.C. Bar #324723)
Assistant Attorney General
/s/--------------------------------------------------------------------
David I. Gelfand (D.C. Bar #416596)
Deputy Assistant Attorney General
/s/--------------------------------------------------------------------
Patricia A. Brink
Director of Civil Enforcement
/s/--------------------------------------------------------------------
David C. Kully
Chief, Litigation III Section
Mark A. Merva* (D.C. Bar #451743)
Anupama Sawkar
Trial Attorneys, United States Department of Justice, Antitrust
Division, Litigation III Section, 450 Fifth Street NW., Suite 4000,
Washington, DC 20530, Phone: 202-616-1398, Facsimile: 202-514-7308
Email: [email protected]
*Attorney of Record
Dated: October 30, 2014
Appendix A--Herfindahl-Hirschman Index
The term ``HHI'' means the Herfindahl-Hirschman Index, a
commonly accepted measure of market concentration. The HHI is
calculated by squaring the market share of each firm competing in
the market and then summing the resulting numbers. For example, for
a market consisting of four firms with shares of 30, 30, 20, and 20
percent, the HHI is 2,600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600).
The HHI takes into account the relative size distribution of the
firms in a market. It approaches zero when a market is occupied by a
large number of firms of relatively equal size and reaches its
maximum of 10,000 points when a market is controlled by a single
firm. The HHI increases both as the number of firms in the market
decreases and as the disparity in size between those firms
increases. Markets in which the HHI is between 1,500 and 2,500
points are considered to be moderately concentrated, and markets in
which the HHI is in excess of 2,500 points are considered to be
highly concentrated. See U.S. Department of Justice & FTC,
Horizontal Merger Guidelines Sec. 5.3 (2010). Transactions that
increase the HHI by more than 200 points in highly concentrated
markets presumptively raise antitrust concerns under the Horizontal
Merger Guidelines issued by the Department of Justice and the
Federal Trade Commission. See id.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America, Plaintiff, v. Media General, Inc., and
LIN Media LLC, Defendants.
Case No. 1:14-cv-01823
Judge: Hon. Emmet G. Sullivan
Filed: 10/30/2014
Competitive Impact Statement
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), plaintiff United
States of America (``United States'') files this Competitive Impact
Statement relating to the proposed Final Judgment submitted for entry
in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
Defendants Media General, Inc. (``Media General'') and LIN Media
LLC (``LIN'') entered into a Purchase Agreement, dated March 21, 2014,
pursuant to which Media General would acquire LIN. Under the Purchase
Agreement, LIN shareholders would receive approximately $1.5 billion in
a combination of stock and cash. Defendants compete head-to-head in the
sale of broadcast television spot advertising in the following
Designated Market Areas (``DMAs''): Mobile, Alabama/Pensacola, Florida;
Birmingham, Alabama; Savannah, Georgia; Providence, Rhode Island/New
Bedford, Massachusetts; and Green Bay/Appleton, Wisconsin (collectively
``the DMA Markets'').
The United States filed a civil antitrust Complaint on October 30,
2014, seeking to enjoin the proposed acquisition. The Complaint alleges
that the likely effect of the acquisition would be to lessen
competition substantially and increase broadcast television spot
advertising prices in each of the DMA Markets in violation of Section 7
of the Clayton Act, 15 U.S.C. 18.
At the same time the Complaint was filed, the United States also
filed a Hold Separate Stipulation and Order (``Hold Separate'') and
proposed Final Judgment, which are designed to eliminate the
anticompetitive effects of the proposed acquisition. Under the proposed
Final Judgment, which is explained more fully below, Defendants are
required to divest the Divestiture Assets (collectively, the
``Divestiture Stations'') to Acquirers approved by the United States in
a manner that preserves competition in each of the DMA Markets: WVTM-
TV, located in the Birmingham, Alabama DMA; WJCL and WTGS, both located
in the Savannah, Georgia DMA; WALA-TV, located in the Mobile, Alabama/
Pensacola, Florida DMA; WJAR, located in the Providence, Rhode Island/
New Bedford, Massachusetts DMA; and WLUK-TV and WCWF, both located in
the Green Bay/Appleton, Wisconsin DMA. The Hold Separate requires
Defendants to take certain steps to ensure that the Divestiture
Stations are operated as competitively independent, economically
viable, and ongoing businesses that will remain independent and
uninfluenced by the consummation of the acquisition that competition is
maintained during the pendency of the ordered divestitures.
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment would terminate this action, except that
the Court would retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof.
II. Description of the Events Giving Rise to the Alleged Violation
A. The Defendants and the Proposed Acquisition
Media General is incorporated in the Commonwealth of Virginia, with
its headquarters in Richmond, Virginia. Media General owns and operates
31 broadcast television stations in 29 metropolitan areas. It owns and
operates broadcast television stations in each of the DMA Markets.
LIN is a Delaware corporation, with its headquarters in Austin,
Texas. LIN owns and operates, or provides programming, operating, or
sales services to more than 50 stations in 23 metropolitan areas. It
also owns and operates, or provides programming, operating, or sales
services to broadcast television stations in each of the DMA Markets.
The proposed acquisition would lessen competition substantially in
the sale of broadcast television spot advertising in each of the DMA
Markets. This acquisition is the subject of the Complaint and proposed
Final Judgment filed by the United States on October 30, 2014.
[[Page 67453]]
B. Anticompetitive Consequences of the Transaction
1. The Relevant Product
The Complaint alleges that the sale of broadcast television spot
advertising constitutes a relevant product market for analyzing this
acquisition under Section 7 of the Clayton Act. Television stations
attract viewers through their programming and then sell advertising
time to businesses wanting to advertise their products to those
television viewers. Advertisers purchase broadcast television spot
advertising to target potential customers in specific DMAs. Spot
advertising differs from network and syndicated television advertising,
which are sold on a nationwide basis by major television networks and
by producers of syndicated programs and are broadcast in every market
area in which the network or syndicated program is aired.
Broadcast television spot advertising possesses a unique
combination of attributes that sets it apart from advertising using
other types of media. Television combines sight, sound, and motion,
thereby creating a more memorable advertisement. Broadcast television
spot advertising generally reaches the largest percentage of potential
customers in a targeted geographic area and is therefore especially
effective in introducing, establishing, and maintaining a product's
image.
Because of this unique combination of attributes, broadcast
television spot advertising has no close substitute for a significant
number of advertisers. Spot advertising on subscription television
channels and internet-based video advertising lack the same reach;
radio spots lack the visual impact; and newspaper and billboard ads
lack sound and motion, as do many internet search engine and Web site
banner ads. Through information provided during individualized price
negotiations, stations can readily identify advertisers with strong
preferences for using broadcast television spot advertising and
ultimately can charge different advertisers different prices.
Consequently, a small but significant price increase in broadcast
television spot advertising is unlikely to cause enough advertising
customers to switch advertising purchases to other media to make the
price increase unprofitable.
2. The Relevant Markets
The Complaint alleges that each of the DMA Markets constitutes a
relevant geographic market for purposes of analyzing this acquisition
under Section 7 of the Clayton Act. A.C. Nielsen Company defines DMAs
as specific geographic units for advertising purposes. Signals from
full-powered television stations in each of the DMA Markets reach
viewers throughout that DMA, so advertisers can use television stations
in each of the DMA Markets to target the largest possible number of
viewers within each of those markets. Some of these advertisers are
located in each of the DMA Markets and are trying to reach consumers
that live in that specific market; others are regional or national
businesses wanting to target consumers in a specific area. Advertising
on television stations outside each of the DMA Markets is not an
alternative for either local, regional, or national advertisers,
because signals from television stations outside each of the DMA
Markets reach relatively few viewers within each of those DMAs. Thus,
advertising on those stations outside a DMA does not reach a
significant number of potential customers within the DMA.
3. Harm to Competition in Each of the DMA Markets
The Complaint alleges that the proposed acquisition likely would
lessen competition substantially in interstate trade and commerce, in
violation of Section 7 of the Clayton Act, 15 U.S.C. 18, and likely
would have the following effects, among others:
(a) Competition in the sale of broadcast television spot
advertising in each of the DMA Markets would be lessened substantially;
(b) competition between Media General broadcast television stations
and LIN broadcast television stations in the sale of broadcast
television spot advertising in each of the DMA Markets would be
eliminated; and
(c) the prices for spot advertising time on broadcast television
stations in each of the DMA Markets likely would increase.
Both Defendants own and operate network-affiliated broadcast
television stations in each of the DMA Markets. The acquisition, by
eliminating LIN as a separate competitor and combining its operations
with Media General, would allow the combined entity to increase its
market share of the broadcast television spot advertising and revenues
in each of the DMA Markets. In the Mobile, Alabama/Pensacola, Florida
DMA, combining the three stations that Defendants operate would give
Media General approximately 54 percent of all television station gross
advertising revenues in that DMA. In the Birmingham, Alabama DMA,
combining the two stations that Defendants operate would give Media
General approximately 34 percent of all television station gross
advertising revenues in that DMA. In the Savannah, Georgia DMA,
combining the three stations that Defendants operate would give Media
General approximately 55 percent of all television station gross
advertising revenues in that DMA. In the Providence, Rhode Island/New
Bedford, Massachusetts DMA, combining the three stations that
Defendants operate would give Media General approximately 83 percent of
all television station gross advertising revenues in that DMA. Finally,
in the Green Bay/Appleton, Wisconsin DMA, combining the three stations
that Defendants operate would give Media General approximately 59
percent of all television station gross advertising revenues in that
DMA. In addition to increasing Media General's share of broadcast
television spot advertising revenue in each of the DMA Markets, the
proposed acquisition would increase substantially its concentration in
each of the DMA Markets.
Using the Herfindahl-Hirschman Index (``HHI''), a standard measure
of market concentration (defined and explained in Appendix A to the
Complaint), the post-acquisition HHI in each of the DMA Markets would
be over 2500 with an increase in the HHI of more than 500 points in
each of those markets. Under the Horizontal Merger Guidelines issued by
the Department of Justice and Federal Trade Commission, mergers
resulting in highly concentrated markets (with an HHI in excess of
2500) with an increase in the HHI of more than 200 points are presumed
to be likely to enhance market power.
The transaction also combines stations that are close substitutes
and vigorous competitors in a product market with limited alternatives.
In each of the DMA Markets, Defendants have broadcast stations that are
affiliated with the major national television networks, ABC, CBS, NBC,
and FOX. Their respective affiliations with those networks, and their
local news operations, provide Defendants' stations with a variety of
competing programming options that are often each other's next-best or
second-best substitutes for viewers and advertisers.
Currently, Defendants' stations that overlap in the same DMA Market
compete for the business of local, regional, and national firms seeking
to advertise on broadcast television stations. Advertisers benefit from
this competition. Thus, the proposed acquisition is likely to eliminate
this head-to-head competition and therefore, could enable Defendants to
raise prices for broadcast spot advertising.
[[Page 67454]]
4. Lack of Countervailing Factors
The Complaint alleges that entry or expansion in each of the DMA
Markets' television spot advertising market would not be timely,
likely, or sufficient to prevent any anticompetitive effects. New entry
is unlikely since any new station would require an FCC license, which
is difficult to obtain. Even if a new station became operational,
commercial success would come over a period of many years. The number
of 30-second spots available at a station is generally fixed, and
additional slots cannot be created. Adjusting programming in response
to a pricing change is difficult and time-consuming. Programming
schedules are complex and carefully constructed, and television
stations often have multi-year contractual commitments for individual
shows or are otherwise committed to programming provided by their
affiliated network. Accordingly, other television stations in each of
the DMA Markets could not readily increase their advertising capacity
or change their programming in response to a small but significant
price increase by Media General.
III. Explanation of the Proposed Final Judgment
The divestiture requirement of the proposed Final Judgment will
eliminate the anticompetitive effects of the transaction in each of the
DMA Markets by maintaining the Divestiture Stations as independent,
economically viable competitors.\1\ The proposed Final Judgment
requires Defendants to make the following divestitures: To Hearst
Television: WVTM-TV, located in Birmingham, Alabama and WJCL, located
in Savannah, Georgia; to Meredith Corporation: WALA-TV, located in
Mobile, Alabama; and to Sinclair Broadcast Group: WJAR, located in
Providence, Rhode Island, WLUK-TV and WCWF, both located in Green Bay,
Wisconsin, and WTGS, located in Savannah, Georgia.\2\ The United States
has approved each of these divestitures in order to provide greater
certainty and efficiency in the divestiture process. Defendants must
take all reasonable steps necessary to accomplish the divestiture
quickly. If Defendants do not sell the assets to the approved buyers,
they shall cooperate with prospective purchasers to accomplish the
divestiture expeditiously to other Acquirers in such a way as to
satisfy the United States in its sole discretion that the Divestiture
Stations can and will be operated by a purchaser as a viable, ongoing
business that can compete effectively in the relevant market.
---------------------------------------------------------------------------
\1\ The United States' evaluation of the merger of Media General
and LIN concerned the likely competitive effects of the merger, and
did not consider whether pre-existing agreements among participants
in the DMA Markets might restrain competition. For instance, the
United States is aware that, before Defendants entered their
agreement to merge, LIN had a pre-existing local marketing agreement
(LMA) in Providence with the owner of the Fox affiliate. Following
the divestitures required under the proposed Final Judgment, Media
General will replace LIN under the LMA. Because the United States
has not investigated the competitive effects of these agreements as
part of its evaluation of the merger, the proposed Final Judgment
does not address them. We understand, however, that LMAs or other
agreements in these markets may be subject to the requirements
established in the Federal Communications Commission's Report and
Order in its 2014 Quadrennial Regulatory Review--Review of the
Commission's Broadcast Ownership Rules and Other Rules Adopted
Pursuant to Section 202 of the Telecommunications Act of 1996, MB
Docket No. 14-50, FCC 14-28 (Apr. 15, 2014).
\2\ Vaughan Acquisition LLC owns certain equity interests in
WTGS, and Defendant LIN holds an option to purchase Vaughan's equity
interests in WTGS. LIN and Vaughan have entered into an Option
Exercise Agreement pursuant to which LIN will exercise its option
for Sinclair's benefit upon consummation of Media General's merger
with LIN.
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The ``Divestiture Assets'' are defined in Paragraph II.O of the
proposed Final Judgment to include all assets principally devoted to
and necessary for the operation of the Divestiture Stations. These
Divestiture Assets are essentially the same assets that Defendants
would have operated under the Asset Purchase Agreement. The assets
include real property, equipment, FCC licenses, contracts, intellectual
property rights, programming materials, and customer lists maintained
by Media General or LIN in connection with each of the Divestiture
Stations. These do not include assets that are not principally devoted
to or necessary for the operation of each of the Divestiture Stations,
but are used to support multiple stations. Thus, Media General will be
able to retain back-office systems or other assets and contracts used
to support multiple broadcast television stations, and which an
Acquirer with experience operating broadcast television stations can
supply for itself.
To ensure that each of the Divestiture Stations is operated as an
independent, economically viable competitor after the divestitures,
Section XI of the proposed Final Judgment prohibit Defendants from
entering into any agreements during the term of the Final Judgment that
create a long-term relationship with any of the Acquirers of the
Divestiture Stations after the divestitures are completed. Examples of
prohibited agreements include options to repurchase or assign interests
in any of the Divestiture Stations; agreements to provide financing or
guarantees for financing; local marketing agreements, joint sales
agreements, or any other cooperative selling arrangements; shared
services agreements; and agreements to jointly conduct any business
negotiations with the Acquirers with respect to any of the Divestiture
Stations. This shared services prohibition does not preclude agreements
limited to helicopter sharing and stock video pooling in the forms that
are customary in the industry. It also does not preclude other non-
sales-related agreements approved in advance by the United States in
its sole discretion. These limited exceptions do not permit Defendants
to enter into broad news-sharing agreements with respect to any of the
Divestiture Stations. The United States in its sole discretion may
approve in writing of any transition services agreement that may be
necessary to facilitate the continuous operations of the Divestiture
Assets until the Acquirers can provide such capabilities independently.
The terms and conditions of any such transition services agreement
shall be subject to the approval of the United States, in its sole
discretion. These transition services agreements will allow each of the
Divestiture Stations to continue its operations as an independent,
ongoing, economically viable, and active competitor in the broadcast
television spot advertising business.
Defendants are required to take all steps reasonably necessary to
accomplish the divestitures quickly and to cooperate with prospective
purchasers. Because transferring the broadcast license for each of the
Divestiture Stations requires FCC approval, Defendants are specifically
required to use their best efforts to obtain all necessary FCC
approvals as expeditiously as possible. The divestiture of each of the
Divestiture Stations must occur within ninety (90) calendar days after
the filing of the Hold Separate in this matter or five (5) calendar
days after notice that the Court has entered the Final Judgment,
whichever is later, subject to Defendants' receipt of any necessary FCC
order pertaining to the divestiture. The United States, in its sole
discretion, may agree to one or more extensions of this time period not
to exceed sixty (60) calendar days in total, and shall notify the Court
in such circumstances. If FCC applications to assign or transfer
licenses to the Acquirers of the Divestiture Stations have been filed
within the period permitted for divestiture, but an order or other
[[Page 67455]]
dispositive action by FCC on such applications has not been issued
before the end of the period permitted for divestiture, the period
shall be extended with respect to divestiture of the Divestiture
Stations for which no FCC order has issued until five (5) days after
such order is issued.
If the divestitures do not occur within the prescribed timeframe in
Section VI (A) of the proposed Final Judgment, the proposed Final
Judgment provides that the Court, upon application of the United
States, will appoint a Divestiture Trustee selected by the United
States to sell any of the Divestiture Stations that have not been
divested. The Defendants will pay all costs and expenses of the
Divestiture Trustee. The Divestiture Trustee's commission will be
structured to provide an incentive for the Divestiture Trustee based on
the price obtained and the speed with which the divestiture is
accomplished. The Divestiture Trustee would file monthly reports with
the Court and the United States describing efforts to divest the
remaining stations. If the divestiture has not been accomplished after
six (6) months, the Divestiture Trustee and the United States will make
recommendations to the Court, which shall enter such orders as
appropriate, to carry out the purpose of the trust.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against Defendants.
V. Procedures Available for Modification of the Proposed Final Judgment
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least sixty (60) days preceding
the effective date of the proposed Final Judgment within which any
person may submit to the United States written comments regarding the
proposed Final Judgment. Any person who wishes to comment should do so
within sixty (60) days of the date of publication of this Competitive
Impact Statement in the Federal Register, or the last date of
publication in a newspaper of the summary of this Competitive Impact
Statement, whichever is later. All comments received during this period
will be considered by the U.S. Department of Justice, which remains
free to withdraw its consent to the proposed Final Judgment at any time
prior to the Court's entry of judgment. The comments and the response
of the United States will be filed with the Court. In addition,
comments will be posted on the United States Department of Justice,
Antitrust Division's internet Web site and, under certain
circumstances, published in the Federal Register.
Written comments should be submitted to: David C. Kully, Chief,
Litigation III Section, Antitrust Division, United States Department of
Justice, 450 5th Street NW., Suite 4000, Washington, DC 20530. The
proposed Final Judgment provides that the Court retains jurisdiction
over this action, and Defendants may apply to the Court for any order
necessary or appropriate for the modification, interpretation, or
enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against Defendants. The
United States could have continued the litigation and sought
preliminary and permanent injunctions against Media General's
acquisition of LIN. The United States is satisfied, however, that the
divestiture of assets described in the proposed Final Judgment will
preserve competition for the sale of broadcast television spot
advertising in each of the DMA Markets. Thus, the proposed Final
Judgment would achieve all or substantially all of the relief the
United States would have obtained through litigation, but avoids the
time, expense, and uncertainty of a full trial on the merits of the
Complaint.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by the United States be
subject to a sixty-day comment period, after which the court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. 16(e)(1). In making that determination,
the court, in accordance with the statute as amended in 2004, is
required to consider:
(A) The competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors,
the court's inquiry is necessarily a limited one as the government is
entitled to ``broad discretion to settle with the defendant within the
reaches of the public interest.'' United States v. Microsoft Corp., 56
F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public
interest standard under the Tunney Act); United States v. InBev N.V./
S.A., 2009-2 Trade Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787,
No. 08-1965 (JR), at *3, InBev N.V./S.A., 2009-2 Trade Cas. (CCH) ]
76,736, 2009 U.S. Dist. LEXIS 84787, No. 08-1965 (JR), at *3, (D.D.C.
Aug. 11, 2009) (noting that the court's review of a consent judgment is
limited and only inquires ``into whether the government's determination
that the proposed remedies will cure the antitrust violations alleged
in the complaint was reasonable, and whether the mechanism to enforce
the final judgment are clear and manageable.'').\3\
---------------------------------------------------------------------------
\3\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for court to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
16(e) (2004) with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns,
489 F. Supp. 2d at 11 (concluding that the 2004 amendments
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------
As the United States Court of Appeals for the District of Columbia
Circuit has held, under the APPA a court considers, among other things,
the relationship between the remedy secured and the specific
allegations set forth in the government's complaint, whether the decree
is sufficiently clear, whether enforcement mechanisms are sufficient,
[[Page 67456]]
and whether the decree may positively harm third parties. See
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the
relief secured by the decree, a court may not ``engage in an
unrestricted evaluation of what relief would best serve the public.''
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787,
---------------------------------------------------------------------------
at *3. Courts have held that:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\4\ In
determining whether a proposed settlement is in the public interest, a
district court ``must accord deference to the government's predictions
about the efficacy of its remedies, and may not require that the
remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F.
Supp. 2d at 17; see also U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at
*16 (noting that a court should not reject the proposed remedies
because it believes others are preferable); Microsoft, 56 F.3d at 1461
(noting the need for courts to be ``deferential to the government's
predictions as to the effect of the proposed remedies''); United States
v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003)
(noting that the court should grant due respect to the United States'
prediction as to the effect of proposed remedies, its perception of the
market structure, and its views of the nature of the case).
---------------------------------------------------------------------------
\4\ Cf. BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); United States v. Gillette Co.,
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the
court is constrained to ``look at the overall picture not
hypercritically, nor with a microscope, but with an artist's
reducing glass''). See generally Microsoft, 56 F.3d at 1461
(discussing whether ``the remedies [obtained in the decree are] so
inconsonant with the allegations charged as to fall outside of the
`reaches of the public interest' '').
---------------------------------------------------------------------------
Courts have greater flexibility in approving proposed consent
decrees than in crafting their own decrees following a finding of
liability in a litigated matter. ``[A] proposed decree must be approved
even if it falls short of the remedy the court would impose on its own,
as long as it falls within the range of acceptability or is `within the
reaches of public interest.' '' United States v. Am. Tel. & Tel. Co.,
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also U.S.
Airways, 2014 U.S. Dist. LEXIS 57801, at *8 (noting that room must be
made for the government to grant concessions in the negotiation process
for settlements (citing Microsoft, 56 F.3d at 1461); United States v.
Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving
the consent decree even though the court would have imposed a greater
remedy). To meet this standard, the United States ``need only provide a
factual basis for concluding that the settlements are reasonably
adequate remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp.
2d at 17.
Moreover, the court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its Complaint, and does not authorize the court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways,
2014 U.S. Dist. LEXIS 57801, at *9 (noting that the court must simply
determine whether there is a factual foundation for the government's
decisions such that its conclusions regarding the proposed settlements
are reasonable; InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged''). Because the ``court's authority
to review the decree depends entirely on the government's exercising
its prosecutorial discretion by bringing a case in the first place,''
it follows that ``the court is only authorized to review the decree
itself,'' and not to ``effectively redraft the complaint'' to inquire
into other matters that the United States did not pursue. Microsoft, 56
F.3d at 1459-60. As this Court recently confirmed in SBC
Communications, courts ``cannot look beyond the complaint in making the
public interest determination unless the complaint is drafted so
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F.
Supp. 2d at 15.
In its 2004 amendments, Congress made clear its intent to preserve
the practical benefits of utilizing consent decrees in antitrust
enforcement, adding the unambiguous instruction that ``[n]othing in
this section shall be construed to require the court to conduct an
evidentiary hearing or to require the court to permit anyone to
intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 2014 U.S. Dist.
LEXIS 57801, at *9 (indicating that a court is not required to hold an
evidentiary hearing or to permit intervenors as part of its review
under the Tunney Act). The language wrote into the statute what
Congress intended when it enacted the Tunney Act in 1974, as Senator
Tunney explained: ``[t]he court is nowhere compelled to go to trial or
to engage in extended proceedings which might have the effect of
vitiating the benefits of prompt and less costly settlement through the
consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of
Sen. Tunney). Rather, the procedure for the public interest
determination is left to the discretion of the court, with the
recognition that the court's ``scope of review remains sharply
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC
Commc'ns, 489 F. Supp. 2d at 11.\5\ A court can make its public
interest determination based on the competitive impact statement and
response to public comments alone. U.S. Airways, 2014 U.S. Dist. LEXIS
57801, at *9.
---------------------------------------------------------------------------
\5\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the
court to make its public interest determination on the basis of the
competitive impact statement and response to comments alone'');
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt
failure of the government to discharge its duty, the Court, in
making its public interest finding, should . . . carefully consider
the explanations of the government in the competitive impact
statement and its responses to comments in order to determine
whether those explanations are reasonable under the
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6
(1973) (``Where the public interest can be meaningfully evaluated
simply on the basis of briefs and oral arguments, that is the
approach that should be utilized.'').
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VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: October 30, 2014
Respectfully submitted,
/s/--------------------------------------------------------------------
Mark A. Merva * (D.C. Bar #451743)
Anupama Sawkar, Trial Attorneys, United States Department of Justice,
Antitrust Division, Litigation III Section,
[[Page 67457]]
450 Fifth Street NW., Suite 4000, Washington, DC 20530, Phone: 202-616-
1398, Facsimile: 202-514-7308, E-mail: [email protected]
* Attorney of Record
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America, Plaintiff, v. Media General, Inc., and
LIN Media LLC, Defendants.
Case No. 1:14-cv-01823
Judge: Hon. Emmet G. Sullivan
Filed: 10/30/2014
Certificate of Service
I, Mark A. Merva, hereby certify that on October 30, 2014, I caused
copies of the Complaint, Competitive Impact Statement, Hold Separate
Stipulation and Order, Proposed Final Judgment, and Plaintiff's
Explanation of Consent Decree Procedures to be served upon Defendants
Media General, Inc. and LIN Media LLC. by mailing the documents
electronically to the duly authorized legal representatives of
Defendants as follows: Counsel for Defendant Media General, Inc.:
Richard C. Park (D.C. Bar #458426), Fried, Frank, Harris, Shriver &
Jacobson LLP, 801 17th Street NW., Washington, DC 20006, Telephone:
202-639-7064, Facsimile: 202-639-7003, Email:
[email protected].
Counsel for LIN Media LLC: Deborah A. Garza (D.C. Bar #359259),
Covington & Burling LLP, 1201 Pennsylvania Avenue NW., Washington, DC
20004, Telephone: 202-662-5146, Facsimile: 202-778-5146, Email:
[email protected].
Respectfully submitted,
Mark A. Merva * (D.C. Bar #451743), Trial Attorney, United States
Department of Justice, Antitrust Division, Litigation III Section, 450
Fifth Street NW., Suite 4000, Washington, DC 20530, Phone: 202-616-
1398, Facsimile: 202-514-7308, E-mail: [email protected]
* Attorney of Record
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America, Plaintiff, v. Media General, Inc., and
LIN Media LLC, Defendants.
Case No. 1:14-cv-01823
Judge: Hon. Emmet G. Sullivan
Filed: 10/30/2014
Proposed Final Judgment
WHEREAS, plaintiff, the United States of America filed its
Complaint on October 30, 2014, and Defendant Media General, Inc.
(``Media General'') and Defendant LIN Media LLC (``LIN''), by their
respective attorneys, have consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law, and
without this Final Judgment constituting any evidence against or
admission by any party regarding any issue of fact;
AND WHEREAS, Defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and
certain divestiture of certain rights or assets by the Defendants to
assure that competition is not substantially lessened;
AND WHEREAS, the United States requires Defendants to make certain
divestitures for the purpose of remedying the loss of competition
alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States that
the divestitures required below can and will be made and that
Defendants will later raise no claim of hardship or difficulty as
grounds for asking the Court to modify any of the divestiture
provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. Jurisdiction
This Court has jurisdiction over each of the parties hereto and
over the subject matter of this action. The Complaint states a claim
upon which relief may be granted against Defendants under Section 7 of
the Clayton Act, as amended, 15 U.S.C. 18.
II. Definitions
As used in this Final Judgment:
A. ``Media General'' means Defendant Media General, Inc., a
Virginia corporation headquartered in Richmond, Virginia, its
successors and assigns, and its subsidiaries, divisions, groups,
affiliates, partnerships, and joint ventures, and their directors,
officers, managers, agents, and employees.`
B. ``LIN'' means Defendant LIN Media LLC, a Delaware corporation
headquartered in Austin, Texas, its successors and assigns, and its
subsidiaries, divisions, groups, affiliates, partnerships, and joint
ventures, and their directors, officers, managers, agents, and
employees.
C. ``Acquirer'' means Hearst Television Inc., Meredith Corporation,
Sinclair Broadcast Group, Inc., or another entity to whom Defendants
divest any of the Divestiture Assets.
D. ``Hearst'' means Hearst Television Inc., a Delaware corporation
headquartered in New York, NY, its successor and assigns, and its
subsidiaries, divisions, groups, affiliates, partnerships, and joint
ventures, and their directors, officers, managers, agents, and
employees.
E. ``Meredith'' means Meredith Corporation, an Iowa corporation
headquartered in Des Moines, IA, its successor and assigns, and its
subsidiaries, divisions, groups, affiliates, partnerships, and joint
ventures, and their directors, officers, managers, agents, and
employees.
F. ``Sinclair'' means Sinclair Broadcast Group, Inc., a Maryland
corporation headquartered in Hunt Valley, Maryland, its successor and
assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships, and joint ventures, and their directors, officers,
managers, agents, and employees.
G. ``DMA'' means Designated Market Area as defined by A.C. Nielsen
Company based upon viewing patterns and used by the Investing in
Television BIA Market Report 2014 (1st edition). DMAs are ranked
according to the number of households therein and are used by
broadcasters, advertisers, and advertising agencies to aid in
evaluating television audience size and composition.
H. ``WVTM-TV'' means the NBC-affiliated broadcast television
station located in the Birmingham, Alabama DMA owned by Defendant Media
General.
I. ``WJCL'' means the ABC-affiliated broadcast television station
located in the Savannah, Georgia DMA owned by Defendant LIN.
J. ``WALA-TV'' means the Fox-affiliated broadcast television
station located in the Mobile, Alabama/Pensacola, Florida DMA owned by
Defendant LIN.
K. ``WJAR'' means the NBC-affiliated broadcast television station
located in the Providence, Rhode Island/New Bedford, Massachusetts DMA
owned by Defendant Media General.
L. ``WLUK-TV'' means the Fox-affiliated broadcast television
station located in the Green Bay/Appleton, Wisconsin DMA owned by
Defendant LIN.
M. ``WCWF'' means the CW-affiliated broadcast television station
located in the Green Bay/Appleton, Wisconsin DMA owned by Defendant
LIN.
N. ``WTGS'' means the Fox-affiliated broadcast television station
located in the Savannah, Georgia DMA.
O. ``Divestiture Assets'' means all assets, tangible or intangible,
principally devoted to and necessary for the
[[Page 67458]]
operations of WVTM-TV, WJCL, WALA-TV, WJAR, WLUK-TV, WCWF, and WTGS as
viable, ongoing commercial broadcast television stations, including,
but not limited to, all real property (owned or leased) principally
devoted to and necessary for the operation of the stations, all
broadcast equipment, office equipment, office furniture, fixtures,
materials, supplies, and other tangible property principally devoted to
and necessary for the operation of the stations; all licenses, permits,
authorizations, and applications therefore issued by the Federal
Communications Commission (``FCC'') and other government agencies
related to the stations; all contracts (including programming contracts
and rights), agreements, network affiliation agreements, leases, and
commitments and understandings of Defendants principally devoted to and
necessary for the operation of the stations; all trademarks, service
marks, trade names, copyrights, patents, slogans, programming
materials, and promotional materials relating to the stations; all
customer lists, contracts, accounts, and credit records; and all logs
and other records maintained by Defendants in connection with the
stations.
III. Applicability
A. This Final Judgment applies to Defendants, and all other persons
in active concert or participation with any of them who receive actual
notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Sections IV and V of this Final
Judgment, Defendants sell or otherwise dispose of all or substantially
all of their assets or of lesser business units that include the
Defendants' Divestiture Assets, they shall require the purchaser to be
bound by the provisions of this Final Judgment. Defendants need not
obtain such an agreement from the Acquirers of the assets divested
pursuant to this Final Judgment.
IV. Divestitures
A. Defendants are ordered and directed, within ninety (90) calendar
days after the filing of the Hold Separate Stipulation and Order in
this matter or five (5) calendar days after notice of the entry of this
Final Judgment by the Court, whichever is later, to divest the
Divestiture Assets to one or more Acquirers acceptable to the United
States, in its sole discretion. The United States, in its sole
discretion, may agree to one or more extensions of this time period not
to exceed sixty (60) calendar days in total, and shall notify the Court
in such circumstances. With respect to divestiture of the Divestiture
Assets by Defendants or a Divestiture Trustee appointed pursuant to
Section V of this Final Judgment, if applications have been filed with
the FCC within the period permitted for divestiture seeking approval to
assign or transfer licenses to the Acquirers of the Divestiture Assets,
but an order or other dispositive action by the FCC on such
applications has not been issued before the end of the period permitted
for divestiture, the period shall be extended with respect to
divestiture of the Divestiture Assets for which no FCC order has issued
until five (5) days after such order is issued. Defendants agree to use
their best efforts to divest the Divestiture Assets as expeditiously as
possible, including using their best efforts to obtain all necessary
FCC approvals as expeditiously as possible. This Final Judgment does
not limit the FCC's exercise of its regulatory powers and process with
respect to the Divestiture Assets. Authorization by the FCC to conduct
the divestiture of a Divestiture Asset in a particular manner will not
modify any of the requirements of this Final Judgment.
B. The United States in its sole discretion may approve in writing
of any transition services agreement that may be necessary to
facilitate the continuous operations of the Divestiture Assets until
the Acquirers can provide such capabilities independently. The terms
and conditions of any such transition services agreement shall be
subject to the approval of the United States, in its sole discretion.
C. In the event that Defendants are attempting to divest assets
related to WVTM-TV and WJCL to an Acquirer other than Hearst, assets
related to WALA-TV to an Acquirer other than Meredith, or assets
related to WJAR, WLUK-TV, WCWF, and WTGS to an Acquirer other than
Sinclair:
(1) Defendants, in accomplishing the divestitures ordered by this
Final Judgment, promptly shall make known, by usual and customary
means, the availability of the Divestiture Assets not yet divested;
(2) Defendants shall inform any person making inquiry regarding a
possible purchase of the applicable Divestiture Assets that they are
being divested pursuant to this Final Judgment and provide that person
with a copy of this Final Judgment;
(3) Defendants shall offer to furnish to all prospective Acquirers,
subject to customary confidentiality assurances, all information and
documents relating to the applicable Divestiture Assets customarily
provided in a due diligence process except such information or
documents subject to the attorney-client privilege or work-product
doctrine; and
(4) Defendants shall make available such information to the United
States at the same time that such information is made available to any
other person.
D. Defendants shall provide the Acquirers and the United States
information relating to the personnel involved in the operation and
management of the applicable Divestiture Assets to enable the Acquirers
to make offers of employment. Defendants shall not interfere with any
negotiations by the Acquirers to employ or contract with any employee
of any Defendant whose primary responsibility relates to the operation
or management of the applicable Divestiture Assets being sold by the
Acquirers.
E. Defendants shall permit the Acquirers of the Divestiture Assets
to have reasonable access to personnel and to make inspections of the
physical facilities of the applicable stations; access to any and all
environmental, zoning, and other permit documents and information; and
access to any and all financial, operational, or other documents and
information customarily provided as part of a due diligence process.
F. Defendants shall warrant to the Acquirers that each Divestiture
Asset will be operational on the date of sale.
G. Defendants shall not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Assets.
H. Defendants shall warrant to the Acquirers that there are no
material defects in the environmental, zoning, or other permits
pertaining to the operation of each asset, and that, following the sale
of the Divestiture Assets, Defendants will not undertake, directly or
indirectly, any challenges to the environmental, zoning, or other
permits relating to the operation of the Divestiture Assets.
I. Unless the United States otherwise consents in writing, the
divestitures pursuant to Section IV, or by trustee appointed pursuant
to Section V of this Final Judgment, shall include the entire
Divestiture Assets and be accomplished in such a way as to satisfy the
United States, in its sole discretion, that the Divestiture Assets can
and will be used by the Acquirers as part of a viable, ongoing
commercial television broadcasting business. Divestiture of the
Divestiture Assets may be made to one or more Acquirers, provided that
in each instance it is demonstrated to the sole satisfaction of the
United States that the Divestiture Assets will remain
[[Page 67459]]
viable, and the divestiture of such assets will achieve the purposes of
this Final Judgment and remedy the competitive harm alleged in the
Complaint. The divestitures, whether pursuant to Section IV or Section
V of this Final Judgment:
(1) Shall be made to Acquirers that, in the United States' sole
judgment, have the intent and capability (including the necessary
managerial, operational, technical, and financial capability) of
competing effectively in the commercial television broadcasting
business; and
(2) shall be accomplished so as to satisfy the United States, in
its sole discretion, that none of the terms of any agreement between
Acquirers and Defendants gives Defendants the ability unreasonably to
raise any of the Acquirers' costs, to lower any of the Acquirers'
efficiency, or otherwise to interfere in the ability of any of the
Acquirers to compete effectively.
V. Appointment of Trustee
A. If Defendants have not divested the Divestiture Assets within
the time period specified in Section IV(A), Defendants shall notify the
United States of that fact in writing, specifically identifying the
Divestiture Assets that have not been divested. Upon application of the
United States, the Court shall appoint a Divestiture Trustee selected
by the United States and approved by the Court to effect the
divestiture of the Divestiture Assets that have not yet been divested.
B. After the appointment of a Divestiture Trustee becomes
effective, only the Divestiture Trustee shall have the right to sell
the applicable Divestiture Assets. The Divestiture Trustee shall have
the power and authority to accomplish the divestiture to an Acquirer
acceptable to the United States at such price and on such terms as are
then obtainable upon reasonable effort by the trustee, subject to the
provisions of Sections IV, V, and VI of this Final Judgment, and shall
have such other powers as this Court deems appropriate. Subject to
Section V(D) of this Final Judgment, the Divestiture Trustee may hire
at the cost and expense of Defendants any investment bankers,
attorneys, or other agents, who shall be solely accountable to the
trustee, reasonably necessary in the trustee's judgment to assist in
the divestiture. Any such investment bankers, attorneys, or other
agents shall serve on such terms and conditions as the United States
approves, including confidentiality requirements and conflict of
interest certifications.
C. Defendants shall not object to a sale by the trustee on any
ground other than the trustee's malfeasance. Any such objections by
Defendants must be conveyed in writing to the United States and the
Divestiture Trustee within ten (10) calendar days after the trustee has
provided the notice required under Section VI.
D. The Divestiture Trustee shall serve at the cost and expense of
Defendants pursuant to a written agreement, on such terms and
conditions as the United States approves, including confidentiality
requirements and conflict of interest certifications. The trustee shall
account for all monies derived from the sale of the applicable
Divestiture Assets and all costs and expenses so incurred. After
approval by the Court of the trustee's accounting, including fees for
its services yet unpaid and those of any professionals and agents
retained by the trustee, all remaining money shall be paid to
Defendants and the trust shall then be terminated. The compensation of
the Divestiture Trustee and any professionals and agents retained by
the trustee shall be reasonable in light of the value of the
Divestiture Assets subject to sale by the Divestiture Trustee and based
on a fee arrangement providing the trustee with an incentive based on
the price and terms of the divestiture and the speed with which it is
accomplished, but timeliness is paramount. If the Divestiture Trustee
and Defendants are unable to reach agreement on the trustee's or any
agents' or consultants' compensation or other terms and conditions of
engagement within 14 calendar days of appointment of the trustee, the
United States may, in its sole discretion, take appropriate action,
including making a recommendation to the Court. The Divestiture Trustee
shall, within three (3) business days of hiring any other professionals
or agents, provide written notice of such hiring and the rate of
compensation to Defendants and the United States.
E. Defendants shall use their best efforts to assist the
Divestiture Trustee in accomplishing the required divestiture. The
Divestiture Trustee and any consultants, accountants, attorneys, and
other agents retained by the trustee shall have full and complete
access to the personnel, books, records, and facilities of the business
to be divested, and Defendants shall develop financial and other
information relevant to such business as the trustee may reasonably
request, subject to reasonable protection for trade secret or other
confidential research, development, or commercial information or any
applicable privileges. Defendants shall take no action to interfere
with or to impede the Divestiture Trustee's accomplishment of the
divestiture.
F. After its appointment, the Divestiture Trustee shall file
monthly reports with the United States and, as appropriate, the Court
setting forth the trustee's efforts to accomplish the applicable
divestiture ordered under this Final Judgment. To the extent such
reports contain information that the Divestiture Trustee deems
confidential, such report shall not be filed in the public docket of
the Court. Such report shall include the name, address, and telephone
number of each person who, during the preceding month, made an offer to
acquire, expressed an interest in acquiring, entered into negotiations
to acquire, or was contacted or made an inquiry about acquiring, any
interest in the Divestiture Assets, and shall describe in detail each
contact with any such person. The Divestiture Trustee shall maintain
full records of all efforts made to divest the applicable Divestiture
Assets.
G. If the Divestiture Trustee has not accomplished any applicable
divestiture ordered under this Final Judgment within six (6) months
after its appointment, the trustee shall promptly file with the Court a
report setting forth (1) the trustee's efforts to accomplish the
required divestiture, (2) the reasons, in the trustee's judgment, why
the required divestiture has not been accomplished, and (3) the
trustee's recommendations. To the extent such report contains
information that the Divestiture Trustee deems confidential, such
report shall not be filed in the public docket of the Court. The
Divestiture Trustee shall at the same time furnish such report to the
United States which shall have the right to make additional
recommendations consistent with the purpose of the trust. The Court
thereafter shall enter such orders as it shall deem appropriate to
carry out the purpose of the Final Judgment, which may, if necessary,
include extending the trust and the term of the Divestiture Trustee's
appointment by a period requested by the United States.
H. If the United States determines that the Divestiture Trustee has
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute
Divestiture Trustee.
VI. Notice of Proposed Divestiture
A. Within two (2) business days following execution of a definitive
divestiture agreement, Defendants or the Divestiture Trustee, whichever
is then responsible for effecting the divestitures required herein,
shall notify the United States of any proposed divestiture
[[Page 67460]]
required by Section IV or V of this Final Judgment. If the Divestiture
Trustee is responsible, it shall similarly notify Defendants. The
notice shall set forth the details of the proposed divestiture and list
the name, address, and telephone number of each person not previously
identified who offered or expressed an interest in or desire to acquire
any ownership interest in the Divestiture Assets, together with full
details of the same.
B. Within fifteen (15) calendar days of receipt by the United
States of such notice, the United States may request from Defendants,
the proposed Acquirer, any other third party, or the Divestiture
Trustee, if applicable, additional information concerning the proposed
divestiture, the proposed Acquirer, and any other potential Acquirers.
Defendants and the Divestiture Trustee shall furnish any additional
information requested within fifteen (15) calendar days of the receipt
of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or
within twenty (20) calendar days after the United States has been
provided the additional information requested from Defendants, the
proposed Acquirer, any third party, and the Divestiture Trustee,
whichever is later, the United States shall provide written notice to
Defendants and the Divestiture Trustee, if there is one, stating
whether or not it objects to the proposed divestiture. If the United
States provides written notice that it does not object, the divestiture
may be consummated, subject only to Defendants' limited right to object
to the sale under Section V(C) of this Final Judgment. Absent written
notice that the United States does not object to the proposed Acquirer
or upon objection by the United States, a divestiture proposed under
Section IV or Section V shall not be consummated. Upon objection by
Defendants under Section V(C), a divestiture proposed under Section V
shall not be consummated unless approved by the Court.
VII. Financing
Defendants shall not finance all or any part of any purchase made
pursuant to Section IV or V of this Final Judgment.
VIII. Hold Separate
Until the divestitures required by this Final Judgment has been
accomplished, Defendants shall take all steps necessary to comply with
the Hold Separate Stipulation and Order entered by this Court.
Defendants shall take no action that would jeopardize the divestiture
ordered by this Court.
IX. Affidavits
A. Within twenty (20) calendar days of the filing of the Complaint
in this matter, and every thirty (30) calendar days thereafter until
the divestiture has been completed under Section IV or V of this Final
Judgment, Defendants shall deliver to the United States an affidavit as
to the fact and manner of their compliance with Section IV or V of this
Final Judgment. Each such affidavit shall include the name, address,
and telephone number of each person who, during the preceding thirty
(30) calendar days, made an offer to acquire, expressed an interest in
acquiring, entered into negotiations to acquire, or was contacted or
made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person
during that period. Each such affidavit shall also include a
description of the efforts Defendants have taken to solicit buyers for
and complete the sale of the Divestiture Assets, including efforts to
secure FCC or other regulatory approvals, and to provide required
information to prospective Acquirers, including the limitations, if
any, on such information. Assuming the information set forth in the
affidavit is true and complete, any objection by the United States to
information provided by Defendants, including limitations on
information, shall be made within fourteen (14) calendar days of
receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, Defendants shall deliver to the United States an
affidavit that describes in reasonable detail all actions Defendants
have taken and all steps Defendants have implemented on an ongoing
basis to comply with Section VIII of this Final Judgment. Each such
affidavit shall also include a description of the efforts Defendants
have taken to complete the sale of the Divestiture Assets, including
efforts to secure FCC or other regulatory approvals. Defendants shall
deliver to the United States an affidavit describing any changes to the
efforts and actions outlined in Defendants' earlier affidavits filed
pursuant to this section within fifteen (15) calendar days after the
change is implemented.
C. Defendants shall keep all records of all efforts made to
preserve and divest the Divestiture Assets until one year after such
divestiture has been completed.
X. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of any related orders such as any Hold Separate
Stipulation and Order, or of determining whether the Final Judgment
should be modified or vacated, and subject to any legally recognized
privilege, from time to time authorized representatives of the United
States Department of Justice, including consultants and other persons
retained by the United States, shall, upon written request of an
authorized representative of the Assistant Attorney General in charge
of the Antitrust Division, and on reasonable notice to Defendants, be
permitted:
(1) Access during Defendants' office hours to inspect and copy, or
at the option of the United States, to require Defendants to provide
hard copies or electronic copy of, all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control of
Defendants, relating to any matters contained in this Final Judgment;
and
(2) to interview, either informally or on the record, Defendants'
officers, employees, or agents, who may have their individual counsel
present, regarding such matters. The interviews shall be subject to the
reasonable convenience of the interviewee and without restraint or
interference by Defendants.
B. Upon the written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division,
Defendants shall submit written reports or responses to written
interrogatories, under oath if requested, relating to any of the
matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in
this section shall be divulged by the United States to any person other
than an authorized representative of the executive branch of the United
States, except in the course of legal proceedings to which the United
States is a party (including grand jury proceedings), or for the
purpose of securing compliance with this Final Judgment, or as
otherwise required by law.
D. If at the time information or documents are furnished by
Defendants to the United States, Defendants represent and identify in
writing the material in any such information or documents to which a
claim of protection may be asserted under Rule 26(c)(1)(g) of the
Federal Rules of Civil Procedure, and Defendants mark each pertinent
page of such material, ``Subject to claim of protection under
[[Page 67461]]
Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,'' then the
United States shall give Defendants ten (10) calendar days notice prior
to divulging such material in any legal proceeding (other than a grand
jury proceeding).
XI. No Reacquisition or Other Prohibited Activities
Defendants may not (1) reacquire any part of the Divestiture
Assets, (2) acquire any option to reacquire any part of the Divestiture
Assets or to assign the Divestiture Assets to any other person, (3)
enter into any local marketing agreement, joint sales agreement, other
cooperative selling arrangement, or shared services agreement, or
conduct other business negotiations jointly with the Acquirers with
respect to the Divestiture Assets, or (4) provide financing or
guarantees of financing with respect to the Divestiture Assets, during
the term of this Final Judgment. The shared services prohibition does
not preclude Defendants from continuing or entering into agreements in
a form customarily used in the industry to (1) share news helicopters
or (2) pool generic video footage that does not include recording a
reporter or other on-air talent, and does not preclude Defendants from
entering into any non-sales-related shared services agreement or
transition services agreement that is approved in advance by the United
States in its sole discretion.
XII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIII. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall
expire ten years from the date of its entry.
XIV. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16, including making copies available to the
public of this Final Judgment, the Competitive Impact Statement, and
any comments thereon, and the United States' responses to comments.
Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and response to comments filed with
the Court, entry of this Final Judgment is in the public interest.
Date:
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Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
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United States District Judge
[FR Doc. 2014-26886 Filed 11-12-14; 8:45 am]
BILLING CODE P