[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 467 Reported in Senate (RS)]






                                                       Calendar No. 192
106th CONGRESS
  1st Session
                                 S. 467

  To restate and improve section 7A of the Clayton Act, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 25, 1999

 Mr. DeWine (for himself and Mr. Kohl) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                              July 1, 1999

 Reported by Mr. Hatch, with an amendment and an amendment to the title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
  To restate and improve section 7A of the Clayton Act, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Antitrust Merger Review 
Act''.</DELETED>

<DELETED>SEC. 2. RESTATEMENT AND IMPROVEMENT OF SECTION 7A OF THE 
              CLAYTON ACT.</DELETED>

<DELETED>    (a) In General.--Section 7A of the Clayton Act (15 U.S.C. 
18a) is amended to read as follows:</DELETED>
<DELETED>    ``Sec. 7A. (a) Except as exempted pursuant to subsection 
(c), no person shall acquire, directly or indirectly, any voting 
securities or assets of any other person, unless both persons (or in 
the case of a tender offer, the acquiring person) file notification 
pursuant to rules under subsection (d)(1) and the waiting period 
described in subsection (b)(1) has expired, if--</DELETED>
        <DELETED>    ``(1) the acquiring person, or the person whose 
        voting securities or assets are being acquired, is engaged in 
        commerce or in any activity affecting commerce;</DELETED>
        <DELETED>    ``(2)(A) any voting securities or assets of a 
        person engaged in manufacturing which has annual net sales or 
        total assets of $10,000,000 or more are being acquired by any 
        person which has total assets or annual net sales of 
        $100,000,000 or more;</DELETED>
        <DELETED>    ``(B) any voting securities or assets of a person 
        not engaged in manufacturing which has total assets of 
        $10,000,000 or more are being acquired by any person which has 
        total assets or annual net sales of $100,000,000 or more; 
        or</DELETED>
        <DELETED>    ``(C) any voting securities or assets of a person 
        with annual net sales or total assets of $100,000,000 or more 
        are being acquired by any person with total assets or annual 
        net sales of $10,000,000 or more; and</DELETED>
        <DELETED>    ``(3) as a result of such acquisition, the 
        acquiring person would hold--</DELETED>
                <DELETED>    ``(A) 15 per centum or more of the voting 
                securities or assets of the acquired person, 
                or</DELETED>
                <DELETED>    ``(B) an aggregate total amount of the 
                voting securities and assets of the acquired person in 
                excess of $15,000,000.</DELETED>
<DELETED>In the case of a tender offer, the person whose voting 
securities are sought to be acquired by a person required to file 
notification under this subsection shall file notification pursuant to 
rules under subsection (d).</DELETED>
<DELETED>    ``(b)(1) The waiting period required under subsection (a) 
shall--</DELETED>
        <DELETED>    ``(A) begin on the date of the receipt by the 
        Federal Trade Commission and the Assistant Attorney General in 
        charge of the Antitrust Division of the Department of Justice 
        (hereinafter referred to in this section as the `Assistant 
        Attorney General') of--</DELETED>
                <DELETED>    ``(i) the completed notification required 
                under subsection (a), or</DELETED>
                <DELETED>    ``(ii) if such notification is not 
                completed, the notification to the extent completed and 
                a statement of the reasons for such 
                noncompliance,</DELETED>
        <DELETED>from both persons, or, in the case of a tender offer, 
        the acquiring person; and</DELETED>
        <DELETED>    ``(B) end on the thirtieth day after the date of 
        such receipt (or in the case of a cash tender offer, the 
        fifteenth day), or on such later date as may be set under 
        subsection (e)(2) or (g)(2).</DELETED>
<DELETED>    ``(2) The Federal Trade Commission and the Assistant 
Attorney General may, in individual cases, terminate the waiting period 
specified in paragraph (1) and allow any person to proceed with any 
acquisition subject to this section, and promptly shall cause to be 
published in the Federal Register a notice that neither intends to take 
any action within such period with respect to such 
acquisition.</DELETED>
<DELETED>    ``(3) As used in this section--</DELETED>
        <DELETED>    ``(A) The term `voting securities' means any 
        securities which at present or upon conversion entitle the 
        owner or holder thereof to vote for the election of directors 
        of the issuer or, with respect to unincorporated issuers, 
        persons exercising similar functions.</DELETED>
        <DELETED>    ``(B) The amount or percentage of voting 
        securities or assets of a person which are acquired or held by 
        another person shall be determined by aggregating the amount or 
        percentage of such voting securities or assets held or acquired 
        by such other person and each affiliate thereof.</DELETED>
<DELETED>    ``(c) The following classes of transactions are exempt 
from the requirements of this section--</DELETED>
        <DELETED>    ``(1) acquisitions of goods or realty transferred 
        in the ordinary course of business;</DELETED>
        <DELETED>    ``(2) acquisitions of bonds, mortgages, deeds of 
        trust, or other obligations which are not voting 
        securities;</DELETED>
        <DELETED>    ``(3) acquisitions of voting securities of an 
        issuer at least 50 per centum of the voting securities of which 
        are owned by the acquiring person prior to such 
        acquisition;</DELETED>
        <DELETED>    ``(4) transfers to or from a Federal agency or a 
        State or political subdivision thereof;</DELETED>
        <DELETED>    ``(5) transactions specifically exempted from the 
        antitrust laws by Federal statute;</DELETED>
        <DELETED>    ``(6) transactions specifically exempted from the 
        antitrust laws by Federal statute if approved by a Federal 
        agency, if copies of all information and documentary material 
        filed with such agency are contemporaneously filed with the 
        Federal Trade Commission and the Assistant Attorney 
        General;</DELETED>
        <DELETED>    ``(7) transactions which require agency approval 
        under section 10(e) of the Home Owners' Loan Act (12 U.S.C. 
        1467a), section 18(c) of the Federal Deposit Insurance Act (12 
        U.S.C. 1828(c)), or section 3 of the Bank Holding Company Act 
        of 1956 (12 U.S.C. 1842);</DELETED>
        <DELETED>    ``(8) transactions which require agency approval 
        under section 4 of the Bank Holding Company Act of 1956 (12 
        U.S.C. 1843) or section 5 of the Home Owners' Loan Act (12 
        U.S.C. 1464), if copies of all information and documentary 
        material filed with any such agency are contemporaneously filed 
        with the Federal Trade Commission and the Assistant Attorney 
        General at least 30 days prior to consummation of the proposed 
        transaction;</DELETED>
        <DELETED>    ``(9) acquisitions, solely for the purpose of 
        investment, of voting securities, if, as a result of such 
        acquisition, the securities acquired or held do not exceed 10 
        per centum of the outstanding voting securities of the 
        issuer;</DELETED>
        <DELETED>    ``(10) acquisitions of voting securities, if, as a 
        result of such acquisition, the voting securities acquired do 
        not increase, directly or indirectly, the acquiring person's 
        per centum share of outstanding voting securities of the 
        issuer;</DELETED>
        <DELETED>    ``(11) acquisitions, solely for the purpose of 
        investment, by any bank, banking association, trust company, 
        investment company, or insurance company, of (A) voting 
        securities pursuant to a plan of reorganization or dissolution; 
        or (B) assets in the ordinary course of its business; 
        and</DELETED>
        <DELETED>    ``(12) such other acquisitions, transfers, or 
        transactions, as may be exempted under subsection 
        (d)(2)(B).</DELETED>
<DELETED>    ``(d) The Federal Trade Commission, with the concurrence 
of the Assistant Attorney General and by rule in accordance with 
section 553 of title 5, United States Code, consistent with the 
purposes of this section--</DELETED>
        <DELETED>    ``(1) shall require that the notification required 
        under subsection (a) be in such form and contain such 
        documentary material and information relevant to a proposed 
        acquisition as is necessary and appropriate to enable the 
        Federal Trade Commission and the Assistant Attorney General to 
        determine whether such acquisition may, if consummated, violate 
        the antitrust laws; and</DELETED>
        <DELETED>    ``(2) may--</DELETED>
                <DELETED>    ``(A) define the terms used in this 
                section;</DELETED>
                <DELETED>    ``(B) exempt, from the requirements of 
                this section, classes of persons, acquisitions, 
                transfers, or transactions which are not likely to 
                violate the antitrust laws; and</DELETED>
                <DELETED>    ``(C) prescribe such other rules as may be 
                necessary and appropriate to carry out the purposes of 
                this section.</DELETED>
<DELETED>    ``(e)(1) The Federal Trade Commission or the Assistant 
Attorney General may, prior to the expiration of the 30-day waiting 
period (or in the case of a cash tender offer, the 15-day waiting 
period) specified in subsection (b)(1), require the submission of 
additional information or documentary material relevant to the proposed 
acquisition, from a person required to file notification with respect 
to such acquisition under subsection (a) prior to the expiration of the 
waiting period specified in subsection (b)(1), or from any officer, 
director, partner, agent, or employee of such person.</DELETED>
<DELETED>    ``(2) The Federal Trade Commission or the Assistant 
Attorney General, in its or his discretion, may extend the 30-day 
waiting period (or in the case of a cash tender offer, the 15-day 
waiting period) specified in subsection (b)(1) for an additional period 
of not more than 20 days (or in the case of a cash tender offer, 10 
days) after the date on which the Federal Trade Commission or the 
Assistant Attorney General, as the case may be, receives from any 
person to whom a request is made under paragraph (1), or in the case of 
tender offers, the acquiring person, (A) all the information and 
documentary material required to be submitted pursuant to such a 
request, or (B) if such request is not fully complied with, the 
information and documentary material submitted and a statement of the 
reasons for such noncompliance. Such additional period may be further 
extended only by the United States district court, upon an application 
by the Federal Trade Commission or the Assistant Attorney General 
pursuant to subsection (g)(2).</DELETED>
<DELETED>    ``(f) If a proceeding is instituted or an action is filed 
by the Federal Trade Commission, alleging that a proposed acquisition 
violates section 7 of this Act or section 5 of the Federal Trade 
Commission Act, or an action is filed by the United States, alleging 
that a proposed acquisition violates such section 7 or section 1 or 2 
of the Sherman Act, and the Federal Trade Commission or the Assistant 
Attorney General (1) files a motion for a preliminary injunction 
against consummation of such acquisition pendente lite, and (2) 
certifies the United States district court for the judicial district 
within which the respondent resides or carries on business, or in which 
the action is brought, that it or he believes that the public interest 
requires relief pendente lite pursuant to this subsection, then upon 
the filing of such motion and certification, the chief judge of such 
district court shall immediately notify the chief judge of the United 
States court of appeals for the circuit in which such district court is 
located, who shall designate a United States district judge to whom 
such action shall be assigned for all purposes.</DELETED>
<DELETED>    ``(g)(1) Any person, or any officer, director, or partner 
thereof, who fails to comply with any provision of this section shall 
be liable to the United States for a civil penalty of not more than 
$10,000 for each day during which such person is in violation of this 
section. Such penalty may be recovered in a civil action brought by the 
United States.</DELETED>
<DELETED>    ``(2) If any person, or any officer, director, partner, 
agent, or employee thereof, fails substantially to comply with the 
notification requirement under subsection (a) or any request for the 
submission of additional information or documentary material under 
subsection (e)(1) within the waiting period specified in subsection 
(b)(1) and as may be extended under subsection (e)(2), the United 
States district court--</DELETED>
        <DELETED>    ``(A) may order compliance;</DELETED>
        <DELETED>    ``(B) shall extend the waiting period specified in 
        subsection (b)(1) and as may have been extended under 
        subsection (e)(2) until there has been substantial compliance, 
        except that, in the case of a tender offer, the court may not 
        extend such waiting period on the basis of a failure, by the 
        person whose stock is sought to be acquired, to comply 
        substantially with such notification requirement or any such 
        request; and</DELETED>
        <DELETED>    ``(C) may grant such other equitable relief as the 
        court in its discretion determines necessary or 
        appropriate,</DELETED>
<DELETED>upon application of the Federal Trade Commission or the 
Assistant Attorney General.</DELETED>
<DELETED>    ``(h) Any information or documentary material filed with 
the Assistant Attorney General or the Federal Trade Commission pursuant 
to this section shall be exempt from disclosure under section 552 of 
title 5, United States Code, and no such information or documentary 
material may be made public, except as may be relevant to any 
administrative or judicial action or proceeding. Nothing in this 
section is intended to prevent disclosure to either body of Congress or 
to any duly authorized committee or subcommittee of Congress.</DELETED>
<DELETED>    ``(i)(1) Any action taken by the Federal Trade Commission 
or the Assistant Attorney General or any failure of the Federal Trade 
Commission or the Assistant Attorney General to take any action under 
this section shall not bar any proceeding or any action with respect to 
such acquisition at any time under any other section of this Act or any 
other provision of law.</DELETED>
<DELETED>    ``(2) Nothing contained in this section shall limit the 
authority of the Assistant Attorney General or the Federal Trade 
Commission to secure at any time from any person documentary material, 
oral testimony, or other information under the Antitrust Civil Process 
Act, the Federal Trade Commission Act, or any other provision of 
law.</DELETED>
<DELETED>    ``(j) Beginning not later than January 1, 1978, the 
Federal Trade Commission, with the concurrence of the Assistant 
Attorney General, shall annually report to Congress on the operation of 
this section. Such report shall include an assessment of the effects of 
this section, of the effects, purpose, and need for any rules 
promulgated pursuant thereto, and any recommendations for revisions of 
this section.</DELETED>
<DELETED>    ``(k)(1) The consideration by the Federal Communications 
Commission of any application for a transfer of license, or the 
acquisition and operation of lines, that is associated with an 
acquisition subject to this section shall be governed by the procedures 
set forth in this subsection.</DELETED>
<DELETED>    ``(2)(A) Upon receipt of an application referred to in 
paragraph (1), the Federal Communications Commission may submit to the 
party or parties covered by the application a request for any documents 
and information necessary for consideration of the transfer of license, 
or acquisition and operation of lines, addressed in the 
application.</DELETED>
<DELETED>    ``(B) The Federal Communications Commission shall submit a 
request under subparagraph (A), if at all, not later than 30 days after 
receipt of the application in question.</DELETED>
<DELETED>    ``(3)(A) A party subject to a request from the Federal 
Communications Commission under paragraph (2) shall submit to the 
Federal Communications Commission the documents and information 
identified in the request.</DELETED>
<DELETED>    ``(B) At the completion of the submission to the Federal 
Communications Commission of documents and information pursuant to a 
request under subparagraph (A), the party submitting such documents and 
information shall certify to the Federal Communications Commission 
whether or not such party has complied substantially with the 
request.</DELETED>
<DELETED>    ``(4) Whenever consideration of an application referred to 
in paragraph (1) includes one or more requests for documents and 
information under paragraph (2), the Federal Communications Commission 
shall complete the consideration of the application not later than 180 
days after the date on which all parties covered by such requests have 
certified to the Federal Communications Commission under paragraph 
(3)(B) that such parties have complied substantially with such 
requests.</DELETED>
<DELETED>    ``(5)(A) In any case in which the Federal Communications 
Commission does not request under paragraph (2) any documents and 
information for the consideration of an application referred to in 
paragraph (1), the Federal Communications Commission shall approve or 
deny the transfer of license, or the acquisition and operation of 
lines, covered by the application not later than 30 days after the date 
of the submittal of the application to the Federal Communications 
Commission.</DELETED>
<DELETED>    ``(B) In any case in which the Federal Communications 
Commission requests under paragraph (2) documents and information for 
the consideration of an application referred to in paragraph (1), the 
Federal Communications Commission shall approve or deny the transfer of 
license, or the acquisition and operation of lines, covered by the 
application on the date of the completion of consideration of the 
application under paragraph (4).</DELETED>
<DELETED>    ``(C) If the Federal Communications Commission does not 
approve or deny an application for a transfer of license, or for the 
acquisition and operation of lines, by the date set forth in 
subparagraph (A) or (B), whichever applies, the application shall be 
deemed approved by the Federal Communications Commission as of such 
date. Approval under this subparagraph shall be without 
conditions.</DELETED>
<DELETED>    ``(6)(A) Any party seeking to challenge the reasonableness 
of a request of the Federal Communications Commission under paragraph 
(2) shall bring an action in the United States District Court of the 
District of Columbia seeking a declaratory judgment or injunctive 
relief with respect to that challenge.</DELETED>
<DELETED>    ``(B) In seeking to challenge the compliance under 
paragraph (3) of a party with a request under paragraph (2), the 
Federal Communications Commission shall bring an action in the United 
States District Court of the District of Columbia seeking a declaratory 
judgment or injunctive relief with respect to that challenge.</DELETED>
<DELETED>    ``(C) The period of an action under this paragraph may not 
be taken into account in determining the passage of time under a 
deadline under this subsection.</DELETED>
<DELETED>    ``(7) No provision of this subsection may be construed to 
limit or modify--</DELETED>
        <DELETED>    ``(A) the standards utilized by the Federal 
        Communications Commission under the Communications Act of 1934 
        (47 U.S.C. 151 et seq.) in considering or approving transfers 
        of licenses, or the acquisition and operation of lines, covered 
        by an application referred to in paragraph (1); or</DELETED>
        <DELETED>    ``(2) the authority of the Federal Communications 
        Commission under that Act to impose conditions upon the 
        transfer of licenses, or the acquisition and operation of 
        lines, pursuant to such consideration or approval.</DELETED>
<DELETED>    ``(8) Subsection (g)(1) shall not apply with respect to 
the activities of a party under this subsection.''.</DELETED>
<DELETED>    (b) Effective Date.--(1) Except as provided in paragraph 
(2), the amendment made by subsection (a) shall take effect on the date 
of the enactment of this Act.</DELETED>
<DELETED>    (2) Subsection (k) of section 7A of the Clayton Act, as 
amended by subsection (a) of this section, shall take effect 30 days 
after the date of the enactment of this Act, and shall apply with 
respect to applications referred to in such subsection (k) that are 
submitted to the Federal Communications Commission on or after that 
date.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Expeditious Action on 
Telecommunications Merger Act''.

SEC. 2. SCHEDULE FOR CONSIDERATION BY FEDERAL COMMUNICATIONS COMMISSION 
              OF CERTAIN APPLICATIONS FOR TRANSFERS OF LICENSES OR 
              LINES.

    (a) In General.--The consideration by the Federal Communications 
Commission of any application for a transfer of license, or for the 
acquisition and operation of lines, that is associated with an 
acquisition, whether direct or indirect, of voting securities or assets 
shall be governed by the schedule set forth in this section.
    (b) Deadline for Consideration.--
            (1) Certain applications.--
                    (A) In general.--In the case of an application 
                described in subparagraph (B), the Commission shall 
                complete the consideration of the application not later 
                than 180 days after the date of the receipt of the 
                application by the Commission unless the Commission, by 
                majority vote of the members of the Commission, extends 
                the period of consideration of the application by not 
                more than 60 additional days.
                    (B) Covered applications.--An application described 
                in this subparagraph is an application referred to in 
                subsection (a) as a result of which the acquiring 
                person would hold--
                            (i) 15 percent or more of the voting 
                        securities or assets of the acquired person; or
                            (ii) an aggregate total amount of the 
                        voting securities and assets of the acquired 
                        person in excess of $15,000,000.
            (2) Other applications.--In the case of any application 
        referred to in subsection (a) other than an application covered 
        by paragraph (1), the Commission shall complete the 
        consideration of the application not later than 90 days after 
        the date of the receipt of the application by the Commission 
        unless the Commission, by majority vote of the members of the 
        Commission, extends the period of consideration of the 
        application by not more than 30 additional days.
    (c) Failure To Act.--If the Commission does not approve, approve 
with modifications, or deny an application for a transfer of license, 
or for the acquisition and operation of lines, by the date provided for 
the consideration of the application under paragraph (1) or (2) of 
subsection (b), whichever applies, the application shall be deemed 
approved by the Commission as of such date. Approval under this 
subsection shall be without modifications.
    (d) Construction.--No provision of this section may be construed to 
enhance, limit, or modify in any way--
            (1) the standards utilized by the Commission under the 
        Communications Act of 1934 (47 U.S.C. 151 et seq.) in 
        considering or approving transfers of licenses, or the 
        acquisition and operation of lines, covered by an application 
        referred to in subsection (a); or
            (2) the authority of the Commission under that Act to 
        impose conditions upon the transfer of licenses, or the 
        acquisition and operation of lines, pursuant to such 
        consideration or approval.
    (e) Applicability.--
            (1) In general.--Except as provided in paragraph (2), this 
        section shall take effect 30 days after the date of the 
        enactment of this Act, and shall apply with respect to 
        applications referred to in such subsection (a) that are 
        submitted to the Commission on or after that date.
            (2) Pending applications.--If an application described by 
        subsection (a) is pending before the Commission as of the date 
        of the enactment of this Act, subsections (c) and (d) shall 
        apply with respect to the application as if the application had 
        been submitted to the Commission on the date of the enactment 
        of this Act.
            Amend the title so as to read: ``A bill to establish a 
        schedule for the review by the Federal Communications 
        Commission of certain applications for transfers of licenses, 
        or for the acquisition and operation of lines, and for other 
        purposes.''.
                                     

                                                       Calendar No. 192

106th CONGRESS

  1st Session

                                 S. 467

_______________________________________________________________________

                                 A BILL

  To restate and improve section 7A of the Clayton Act, and for other 
                               purposes.

_______________________________________________________________________

                              July 1, 1999

        Reported with an amendment and an amendment to the title