[Federal Register Volume 63, Number 148 (Monday, August 3, 1998)] [Notices] [Pages 41292-41296] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-20578] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division Proposed Final Judgment and Competitive Impact Statement; United States v. City of Stilwell, OK, et al. Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation, and Competitive Impact Statement have been filed with the United States District Court for the Eastern District of Oklahoma in United States v. City of Stilwell, Oklahoma, et al., CIV 96-196B. The proposed Final Judgment is subject to approval by the Court after the expiration of the statutory sixty-day public comment period and compliance with the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h). On April 25, 1996, the United States filed a civil antitrust complaint under Section 4 of the Sherman Act, as amended, 15 U.S.C. 4, alleging that defendants City of Stilwell, Oklahoma and the Stilwell Area Development Authority adopted and enforced a policy by which defendants, the sole suppliers of public water and sewer services to customers within Stilwell city limits, refused to provide water or sewer services to those unless they agreed to purchase electric service from the City's Utility Department. The complaint alleged that this ``all-or-none'' utility policy violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1 and 2, and sought a judgment by the Court declaring the defendants' policy to be an unlawful restraint of trade. The complaint also sought an order by the Court to enjoin the defendants from requiring any consumer of electricity to purchase retail electric service from the City as a condition of receiving water and sewer service, or otherwise discriminating against any customer that purchases or may purchase electric service elsewhere. The United States and defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States withdraws its consent. The Court's entry of the proposed Final Judgment will terminate this civil action against the defendants, except that the Court will retain jurisdiction over the matter for possible further proceedings to construe, modify, terminate or enforce the judgment, or to punish violations of any of its provisions. The proposed Final Judgment contains three principal forms of relief. First, the defendants are enjoined from requiring any consumer of electricity to [[Page 41293]] purchase retail electric service from the defendants as a condition of receiving water or sewer service from the defendants. Second, defendants are required to include a disclaimer on any application for water or sewer service or other written materials distributed by defendants to prospective applicants for water and sewer that states that defendants do not require any applicants to purchase electric service from them as a condition of receiving water or sewer service. Third, the proposed Final Judgment requires defendants to implement an antitrust compliance program directed toward avoiding a repetition of their anticompetitive behavior. Public comment is invited within the sixty days of the publication of this notice. All comments, and responses thereto, will be published in the Federal Register and filed with the Court. Written comments should be directed to Roger W. Fones, Chief, Transportation, Energy and Agriculture Section, Antitrust Division, 325 Seventh Street, N.W., Suite 500, Washington, D.C. 20530 (telephone: (202) 307-6351). Copies of the Complaint, Stipulation, proposed Final Judgment and Competitive Impact Statement are available for inspection in Room 215 of the U.S. Department of Justice, Antitrust Division, 325 Seventh Street, N.W., Washington, D.C. 20530 (telephone: (202) 514-2481) and at the office of the Clerk of the United States District Court for the Eastern District of Oklahoma, United States Courthouse, 5th and Okmulgee Streets, Muskogee, Oklahoma 74401. Copies of any of these materials may be obtained upon request and payment of a copying fee. Constance K. Robinson, Acting Director of Civil Non-Merger Enforcement Antitrust Division. United States of America, Plaintiff, v. City of Stilwell, Oklahoma, et al., Defendants. [Case No. CIV 96-196B] Stipulation and Order It is hereby stipulated by and between the undersigned parties, by their respective attorneys, as follows: 1. The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the United States District Court for the Eastern District of Oklahoma. 2. The parties stipulated that a Final Judgment in the form hereto attached may be filed and entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedure and Penalties Act (15 U.S.C. 16), and without further notice to any party or other proceedings, provided that plaintiff has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court. 3. Each defendant shall abide by and comply with the provisions of the proposed Final Judgment pending entry of the Final Judgment by the Court and shall, from the date of the signing of this Stipulation by the parties, comply with all the terms and provisions of the proposed Final Judgment as though they were in full force and effect as an order of the Court. 4. In the event that plaintiff withdraws its consent, as provided in paragraph 2 above, then the parties are released from all further obligations under this Stipulation, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding. Respectfully submitted, For Plaintiff, United States of America: John R. Read, Michele B. Cano, Michael D. Billiel, Attorneys, Antitrust Division, U.S. Department of Justice, 325 Seventh Street, N.W., Washington, D.C. 20004, (202) 307-0468. For Defendants, City of Stilwell and Stilwell Area Development Authority: Lloyd E. Cole, Jr., Nason Morton, Cole Law Office, 120 W. Division Street, Stilwell, OK 74960, (918) 696- 7331. Order It is so ordered, this ____ day of ____, 1998. ---------------------------------------------------------------------- United States District Court Judge United States of America, Plaintiff, v. City of Stilwell, Oklahoma, et al. Defendants. Final Judgment [Case No. CIV 96-196-B] Plaintiff, United States of America, filed its Complaint on April 25, 1996. Plaintiff and defendants, by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law. This Final Judgment shall not be evidence against or an admission by any party with respect to any issue of fact or law. Therefore, without trial or adjudication of any issue of fact or law herein, and upon consent of the parties, it is hereby Ordered, Adjudged, and Decreed, as follows: I. Jurisdiction This Court has jurisdiction of the subject matter of this action and of each of the parties consenting hereto. Venue is proper in the Eastern District of Oklahoma. The Complaint states a claim upon which relief may be granted against the defendants under Sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1 & 2. II. Definitions As used herein: (A) the term ``defendants'' means the City of Stilwell, Oklahoma (``City'') and the Stilwell Area Development Authority; (B) the term ``document'' means all ``writing and recordings'' as that phrase is defined in Rule 1001(1) of the Federal Rules of Evidence; (C) two or more products are ``unbundled'' when available separately and priced such that the seller's charge for the combination is no less than the sum of the individual product prices; (D) the term ``person'' means any natural person, corporation, firm, company, sole proprietorship, partnership, association, institution, governmental unit, public trust, or other legal entity. III. Applicability (A) This Final Judgment applies to the defendants, jointly and severally, and to their respective successors, assigns, and to all other persons in active concert or participation with any of them who shall have received actual notice of the Final Judgment by personal service or otherwise. (B) Nothing herein contained shall suggest that any portion of this Final Judgment is or has been created for the benefit of any third party and nothing herein shall be construed to provide any rights to any third party. IV. Prohibited and Mandated Conduct (A) The defendants, and each of them, are enjoined and restrained from requiring any consumer of electric energy to purchase retail electric service from a defendant as a condition of receiving water or sewer service from a defendant. (B) Any application for water or sewer service or other written materials distributed by a defendant to prospective applicants for water or sewer service shall include, in a conspicuous manner, the following disclaimer: Although we provide electric service, as well as water and sewer services, we do not require you to purchase electric service from us as a condition of receiving water or sewer service and we will not discriminate against [[Page 41294]] you if you do not purchase electric service from us. (C) The defendants, and each of them, are enjoined and restrained from denying, withholding, or delaying any service, license or permit, or otherwise threatening, discriminating or retaliating against any person that has not agreed to purchase or does not purchase electric service from a defendant, unless defendants' reason for such conduct is unrelated to such person's choice of retail electric provider. V. Limiting Conditions Nothing in this Final Judgment shall prohibit a defendant from: (A) Exercising any valid right now or hereafter conferred by State law to expropriate facilities used by any retail electric supplier to furnish electric energy within the City's corporate boundaries; (B) Commencing or prosecuting, in good faith, litigation to ascertain or protect any right now or hereafter conferred by State law to restrict the furnishing of electric energy within the City's corporate boundaries to retail electric suppliers authorized by law to do so; and (C) Furnishing any premises with more than one utility service on an unbundled basis. VI. Compliance Program (A) Defendants are ordered to maintain an antitrust compliance program which shall include the following: (1) Designating, within 30 days of entry of this Final Judgment, an Antitrust Compliance Officer with responsibility for accomplishing the antitrust compliance program and with the purpose of achieving compliance with this Final Judgment. The Antitrust Compliance Officer shall, on a continuing basis, supervise the review of the current and proposed activities of defendants to ensure that they comply with this Final Judgment. (2) The Antitrust Compliance Officer shall be responsible for accomplishing the following activities: (a) providing copies of this Final Judgment to individuals currently serving on the governing boards, and to non-clerical employees of the Stilwell Utility Department and the Stilwell Area Development Authority, and to each individual hereafter assuming any such position, and obtaining a written certification from such individuals that they received, read, understand to the best of their ability, and agree to abide by this Final Judgment and that they have been advised that noncompliance with the Final Judgment may result in conviction for criminal contempt of court; and (b) briefing annually the governing boards and the non-clerical employees of the Stilwell Utility Department and the Stilwell Area Development Authority on this Final Judgment and the antitrust laws. VII. Certification (A) Within 75 days after the entry of this Final Judgment, the defendants shall certify to the plaintiff that they have complied with Section IV above, designated an Antitrust Compliance Officer, and distributed the Final Judgment in accordance with Section VI(A) above. (B) For each year of the term of this Final Judgment, the defendants shall file with the plaintiff, on or before the anniversary date of entry of this Final Judgment, a statement as to the fact and manner of their compliance with the provisions of Section IV and VI above. VIII. Plaintiff Access (A) To determine or secure compliance with this Final Judgment and for no other purpose, duly authorized representatives of the plaintiff shall, upon written request of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to a defendant made to its principal office, be permitted, subject to any legally recognized privilege: (1) Access during such defendant's office hours to inspect and copy all documents in the possession or under the control of the defendant, who may have counsel present, relating to any matters contained in this Final Judgment; and (2) Subject to the reasonable convenience of such defendant and without restraint or interference from it, to interview officers, employees or agents of the defendant, who may have counsel present, regarding such matters. (B) Upon the written request of the Assistant Attorney General in charge of the Antitrust Division made to a defendant's principal office, such defendant shall submit such written reports, under oath if requested, relating to any matters contained in this Final Judgment as may be reasonably requested, subject to any legally recognized privilege. (C) No information or documents obtained by the means provided in Section VIII shall be divulged by the plaintiff to any person other than a duly 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 to plaintiff, the defendant represents and identifies in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and the defendant marks each pertinent page of such material, ``Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,'' then 10 days notice shall be given by plaintiff to the defendant prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which that defendant is not a party. IX. Further Elements of the Final Judgment (A) This Final Judgment shall expire ten years from the date of entry. (B) Jurisdiction is retained by this Court for the purpose of enabling any of the parties 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 or terminate any or all of its provisions, to enforce compliance, and to punish violations of its provisions. (C) Each party shall bear their respective costs and attorneys fees. (D) Entry of this Final Judgment is in the public interest. Dated: ________. ---------------------------------------------------------------------- United States District Judge United States of America, Plaintiff, v. City of Stilwell, Oklahoma, et al., Defendants. [Case No. CIV 96-196 B] Competitive Impact Statement The United States, pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C. Sec. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding. I. Nature and Purpose of This Proceeding On April 25, 1996, the United States filed a Complaint alleging that the defendants City of Stilwell, Oklahoma (``City'') and Stilwell Area Development Authority (``ADA'') (collectively ``Defendants'') had violated the Sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1 and 2. The Complaint challenged a utility policy adopted and implemented by Defendants, the sole suppliers of public water and sewer services to [[Page 41295]] customers within the Stilwell city limits, by which Defendants refused to extend or connect water or sewer lines to customers unless the customers also agreed to purchase electric service from the City's Utility Department. The effect of this policy, commonly referred to as the ``all-or-none utility policy,'' has been to restrict competition in the provision of electric services in newly annexed areas of Stilwell. On July 15, 1998, the United States and Defendants filed a Stipulation and Order consenting to the entry of a proposed Final Judgment designed to eliminate the all-or-none utility policy and prevent Defendants from implementing any similar restriction in the future. Under the proposed Final Judgment, Defendants would be enjoined from requiring any consumer of electric energy to purchase retail electric service from Defendants as a condition of receiving water or sewer service from Defendants, and would be enjoined from taking actions to impose any similar restrictions on City residents in the future. The proposed Final Judgment also requires that any application for water or sewer service or other written materials distributed by Defendants to prospective applicants include a disclaimer stating that customers are not required to purchase City electricity as a condition of receiving water or sewer service. 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 the 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 The City of Stilwell is a charter municipality, organized and existing under the laws of the State of Oklahoma. Its Utility Department was established by Section 106 of the City's Charter as a business enterprise to provide electricity within and around the City's corporate boundaries. The Utility Department is governed by a Utility Board of five members appointed by the Mayor with the approval of the City Council and is subject to the Council's oversight. The Stilwell Area Development Authority (``ADA'') is a public trust, organized and existing under Oklahoma law, to provide water and sewer service for compensation within and around the City's corporate boundaries. It is governed by a Board of Trustees whose membership is identical to that of the City's Utility Board and which is likewise subject to the Council's oversight. Defendants provide water, sewer, and electric service in Stilwell. Within the pre-1961 boundaries of Stilwell, the City's Utility Department is the sole provider of electric service. But in areas of Stilwell annexed since that time, the City competes with Ozarks Rural Electric Cooperative (``Ozarks'') for sales to new electric service customers. In both pre-1961 Stilwell and areas subsequently annexed, Defendants have virtual monopoly on the sale of water and sewer services. Beginning as early as 1985, the Defendants adopted an all-or-none utility policy, refusing water and sewer services to any customer who did not agree to purchase electric service from the City. The purpose of the policy was to prevent Ozarks from obtaining new electric customers in the annexed areas. The Utility Department and ADA formalized the all-or-none utility policy in 1994, and the Stilwell City Council subsequently approved the policy. To enforce its all-or-none policy, the Defendants denied water and sewer connections, turned off already connected lines, and otherwise discriminated against those customers in annexed areas who tried to obtain electric service from Ozarks. Defendants' enforcement of the policy deprived customers of their right to choose freely among competing electric service providers on the basis of price and quality of service and eliminated competition in the provision of electric service in the annexed areas. III. Explanation of the Proposed Final Judgment The provisions of the proposed Final Judgment are designed to eliminate Defendants' all-or-none utility policy and to prevent future actions by Defendants to place similar restrictions on electric consumers. The proposed Final Judgment would enjoin Defendants from requiring any consumer of electricity to purchase the City's retail electric service as a condition of receiving water or sewer service from the City (Section IV(A)). In addition,the proposed Final Judgment would require defendants to include the following disclaimer in a conspicuous manner in any application for water or sewer service or in any other written materials they distribute to prospective applicants for water or sewer services: Although we provide electric service, as well as water and sewer services, we do not require you to purchase electric service from us as a condition of receiving water or sewer service and we will not discriminate against you if you do not purchase electric service from us. (Section IV(B)). Defendants would also be enjoined from threatening or discriminating or retaliating against any person because that person had not agreed to purchase or did not purchase electric service from Defendants (Section IV(C)). The proposed Final Judgment would further require Defendants to establish and maintain an antitrust compliance program (Section VI) and file an annual certificate of compliance with the United States (Section VII). It would also provide that the United States may obtain information from the Defendants concerning possible violations of the Final Judgment (Section VIII). The proposed Final Judgment would not prohibit Defendants from exercising any right under State law to expropriate facilities used by any retail electric supplier to furnish electricity within the City's corporate boundaries, or from commencing or prosecuting, in good faith, litigation to ascertain or protect any right they might have under State law to restrict the furnishing of electricity within the City's corporate boundaries to retail electric suppliers authorized by law to do so (Section V(A) and (B)). 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 days preceding the effective [[Page 41296]] 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 days of the date of publication of this Competitive Impact Statement in the Federal Register. The United States will evaluate and respond to the comments. All comments will be given due consideration by the Department of Justice, which remains free to withdraw its consent to the proposed Judgment at any time prior to entry. The comments and the responses of the United States will be filed with the Court and published in the Federal Register. Written comments should be submitted to: Roger W. Fones, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, N.W., Suite 500, Washington, D.C. 20004. The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment. The Proposed Final Judgment would expire ten (10) years from the date of its entry. 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. In the view of the Department of Justice, such a trial would involve substantial cost to the United States and is not warranted. The proposed Final Judgment provides relief that fully remedies the alleged violations of the Sherman Act set forth in the Complaint. VII. 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. For Plaintiff United States of America: Dated: July ______, 1998. Respectfully submitted, John R. Read, Michele B. Cano, Michael D. Billiel, Trial Attorneys, U.S. Department of Justice, Antitrust Division, 325 Seventh Street, N.W., Suite 500, Washington, D.C. 20004, 202-307-0468, 202-616-2441 (Facsimile). [FR Doc. 98-20578 Filed 7-31-98; 8:45 am] BILLING CODE 4410-11-M