[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Notices]
[Pages 9847-9852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4280]
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FEDERAL TRADE COMMISSION
[File No. 941 0132]
Tele-Communication, Inc.; Proposed Consent Agreement With
Analysis To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
permit, among other things, Tele-Communication, Inc. (TCI) to complete
its acquisition of TeleCable, on the condition that it divest either
its own Columbus cable TV assets, or those of TeleCable, within twelve
months. If the divestitures were not completed on time, the consent
agreement would permit the Commission to appoint a trustee to complete
the transaction. In addition, TCI, for ten years, would be required to
obtain Commission approval before acquiring any cable TV system in the
Columbus, GA., area.
DATES: Comments must be received on or before April 24, 1995.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Ronald Rowe, FTC/S-2105, Washington, DC 20580, (202) 326-2610.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby
given that the following consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of sixty (60) days. Public comment is invited. Such
comments or views will be considered by the Commission and will be
available for inspection and copying at its principal office in
accordance with Section 4.9(b)(6)(ii) of the Commission's rules of
Practice (16 CFR 4.9(b)(6)(ii)).
Agreement Containing Consent Order
The Federal Trade Commission (``Commission''), having initiated an
investigation of the proposed acquisition of the common stock of
TeleCable Corporation by Tele-Communications, Inc. and the proposed
merger of TeleCable Corporation into TCI Communications, Inc., an
entity within Tele-Communications, Inc., and it now appearing that
Tele-Communications, Inc., hereinafter sometimes referred to as
``proposed respondent,'' is willing to enter into an agreement
containing an order to divest certain assets, and to cease and desist
from making certain acquisitions, and providing for other relief:
It is hereby agreed by and between proposed respondent, by its duly
authorized officer and attorney, and counsel for the Commission that:
1. Proposed respondent Tele-Communications, Inc. is a corporation
organized, existing, and doing business under and by virtue of the laws
of the State of Delaware, with its principal office and place of
business at 5619 DTC Parkway, Englewood, Colorado 80111.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft of complaint.
3. Proposed respondent waives:
a. any further procedural steps;
b. the requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law;
c. all rights to seek judicial review or otherwise to challenge or
contest the validity of the order entered pursuant to this agreement;
and
d. any claim under the Equal Access to Justice Act.
4. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
agreement is accepted by the Commission it, together with the draft of
complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance
of this agreement and so notify the proposed respondent, in which event
it will take such action as it may consider appropriate, or issue and
serve its complaint (in such form as the circumstances may require) and
decision, in disposition of the proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondent that the law has been
violated as alleged in the draft of complaint, or that the facts as
alleged in the draft complaint, other than jurisdictional facts, are
true.
6. This agreement contemplates that, if it is accepted by the
Commission, and if such acceptance is not subsequently withdrawn by the
Commission pursuant to the provisions of Sec. 2.34 of the Commission's
Rules, the Commission may, without further notice to the proposed
respondent, (1) issue its complaint corresponding in form and substance
with the draft of complaint and its decision containing the following
order to divest and to cease and desist in disposition of the
proceeding and (2) make information public with respect thereto. When
so entered, the order to divest and to cease and desist shall have the
same force and effect and may be altered, modified or set aside in the
same manner and within the same time provided by statute for other
orders. The order shall become final upon service. Delivery by the U.S.
Postal Service of the complaint and decision containing the agreed-to
order to proposed respondent's address as [[Page 9848]] stated in this
agreement shall constitute service. Proposed respondent waives any
right it may have to any other manner of service. The complaint may be
used in construing the terms of the order, and no agreement,
understanding, representation, or interpretation not contained in the
order or the agreement may be used to vary or contradict the terms of
the order.
7. Proposed respondent has read the proposed complaint and order
contemplated hereby. Proposed respondent understands that once the
order has been issued, it will be required to file one or more
compliance reports showing that it has fully complied with the order.
Proposed respondent further understands that it may be liable for civil
penalties in the amount provided by law for each violation of the order
after it becomes final.
Order
I
It is ordered that, as used in this order, the following
definitions shall apply:
A. ``Respondent'' or ``TCI'' means (1) Tele-Communications, Inc.
and its predecessors, successors and assigns, subsidiaries, and
divisions, and their respective directors, officers, agents, and
representatives; and (2) partnerships, joint ventures, groups and
affiliates that Tele-Communications, Inc. controls, directly or
indirectly, and their successors and assigns, and their respective
directors, officers, agents, and representatives.
B. ``Control'' means (i) the ability or right, contractual or
otherwise, to direct the management decisions of an entity, or (ii) an
ownership interest of 50% or greater unless a person or entity other
than Respondent has the right to direct the management decisions of
such entity.
C. ``Commission'' means the Federal Trade Commission.
D. ``Columbus Cable Television System Assets'' means either TCI's
Cable Television System or TeleCable's Cable Television System now
operating in Muscogee and Harris Counties, Georgia, including all
properties, privileges, rights, interests and claims, real and
personal, tangible and intangible, of every type and description that
are owned, leased, held or used principally in the provision of Cable
Television Service in Muscogee and Harris Counties, including the
governmental permits, franchises, intangibles, equipment and real
property.
E. ``Designated Columbus Cable Television System'' means the Cable
Television System chosen by TCI pursuant to Paragraph III B. 2. or if
TCI fails to designate a Cable Television System pursuant to, and
within the time limits of, Paragraph III B. 2., the Columbus Cable
Television System Assets.
F. ``Cable Television Service'' means the delivery of various video
entertainment and informational programming via a cable television
system.
G. ``Cable Television System'' means a facility, consisting of a
set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide cable
television service, which includes video programming and which is
provided to multiple subscribers within a community.
H. ``The Relevant Geographic Area'' means the counties of Muscogee
and Harris in the State of Georgia.
I. ``Competitiveness, viability and marketability'' of the Columbus
Cable Television System Assets means the Respondent shall continue the
operation of TCI's and TeleCable's Cable Television Systems in the
ordinary course of business without material change or alteration that
would adversely affect the value or goodwill of such Cable Television
Systems and the Columbus Cable Television System Assets.
II
It is further ordered that:
A. Respondent shall divest, absolutely and in good faith, within
twelve months of the date this order becomes final, one of the Cable
Television Systems constituting the Columbus Cable Television System
Assets. Respondent shall also divest such additional ancillary assets
and businesses and effect such arrangements as are necessary to assure
the competitiveness, viability and marketability of the Columbus Cable
Television System Assets. Respondent shall undertake its best efforts
to facilitate any governmental approvals required to effect divestiture
of the Columbus Cable Television System Assets and their continued use
in Cable Television Service in the Relevant Geographic Area. To ensure
the availability of programming to the divested Columbus Cable
Television System Assets, Respondent shall waive any exclusive rights
to distribute programming by means of Cable Television Systems in the
Relevant Geographic Area.
B. Respondent shall divest the Columbus Cable Television System
Assets only to an acquirer or acquirers that receive the prior approval
of the Commission and only in a manner that receives the prior approval
of the Commission. The purpose of the divestiture of the Columbus Cable
Television System Assets is to ensure the continued use of the Columbus
Cable Television System Assets as an ongoing, viable deliverer of Cable
Television Service in the Relevant Geographic Area, and to remedy the
lessening of competition resulting from the proposed acquisition of
TeleCable Corporation by TCI as alleged in the Commission's complaint.
C. Pending divestiture of the Columbus Cable Television System
Assets, respondent shall take such actions as are necessary to maintain
the competitiveness, viability and marketability of the Columbus Cable
Television System Assets and to prevent the destruction, removal,
wasting, deterioration, or impairment of any of the Columbus Cable
Television System Assets except for ordinary wear and tear.
III
It is further ordered that:
A. If TCI has not divested, absolutely and in good faith and with
the Commission's prior approval, the Columbus Cable Television System
Assets within twelve months of the date this order becomes final, the
Commission may appoint a trustee to divest the Columbus Cable
Television System Assets, provided, however, that if the Commission has
not approved a proposed divestiture within 120 days of the date the
application for such divestiture has been put on the public record, the
running of the divestiture period shall be tolled until the Commission
approves or disapproves the divestiture. In the event that the
Commission or the Attorney General brings an action pursuant to
Sec. 5(l) of the Federal Trade Commission Act, 15 U.S.C. Sec. 45(l), or
any other statute enforced by the Commission, TCI shall consent to the
appointment of a trustee in such action. Neither the appointment of a
trustee nor a decision not to appoint a trustee under this Paragraph
shall preclude the Commission or the Attorney General from seeking
civil penalties or any other relief available to it, including a court-
appointed trustee, pursuant to Sec. 5(l) of the Federal Trade
Commission Act, or any other statute enforced by the Commission, for
any failure by the respondent to comply with this order.
B. If a trustee is appointed by the Commission or a court pursuant
to Paragraph III A. of this order, [[Page 9849]] respondent shall
consent to the following terms and conditions regarding the trustee's
powers, duties, authority, and responsibilities:
1. The Commission shall select the trustee, subject to the consent
of respondent, which consent shall not be unreasonably withheld. The
trustee shall be a person with experience and expertise in acquisitions
and divestitures in the cable television industry. If respondent has
not opposed, in writing, including the reasons for opposing, the
selection of any proposed trustee within ten (10) days after notice by
the staff of the Commission to respondent of the identity of any
proposed trustee, respondent shall be deemed to have consented to the
selection of the proposed trustee.
2. Within ten (10) days after appointment of the trustee,
respondent shall (1) execute a trust agreement that, subject to the
prior approval of the Commission and, in the case of a court-appointed
trustee, of the court, transfers to the trustee all rights and powers
necessary to permit the trustee to effect the divestiture required by
this order; and (2) notify the trustee in writing whether TCI chooses
to divest the TCI Columbus Cable Television System or the TeleCable
Columbus Cable Television System; provided that if TCI fails to make
this designation within the specified time period, the trustee is
authorized to divest either the TCI or TeleCable Columbus Cable
Television System.
3. Subject to the prior approval of the Commission, the trustee
shall have the exclusive power and authority to divest the Designated
Columbus Cable Television System Assets.
4. The trustee shall have twelve (12) months from the date the
Commission approves the trust agreement described in Paragraph III B.
2. to accomplish the divestiture, which shall be subject to the prior
approval of the Commission. If, however, at the end of the twelve-month
period, the trustee has submitted a plan of divestiture or believes
that divestiture can be achieved within a reasonable time, the
divestiture period may be extended by the Commission, or, in the case
of a court-appointed trustee, by the court; provided, however, the
Commission may extend this period only two (2) times.
5. The trustee shall have full and complete access to the
personnel, books, records and facilities related to the Designated
Columbus Cable Television System Assets or to any other relevant
information as the trustee may reasonably request. Respondent shall
develop such financial or other information as such trustee may
reasonably request and shall cooperate with the trustee. Respondent
shall take no action to interfere with or impede the trustee's
accomplishment of the divestitures. Any delays in divestiture caused by
respondent shall extend the time for divestiture under this Paragraph
in an amount equal to the delay, as determined by the Commission or,
for a court-appointed trustee, by the court.
6. The trustee shall use his or her best efforts to negotiate the
most favorable price and terms available in each contract that is
submitted to the Commission, subject to respondent's absolute and
unconditional obligation to divest at no minimum price. The divestiture
shall be made in the manner and to the acquirer or acquirers as set out
in Paragraph II of this order; provided, however, if the trustee
receives bona fide offers from more than one acquiring entity, and if
the Commission determines to approve more than one such acquiring
entity, the trustee shall divest to the acquiring entity or entities
selected by respondent from among those approved by the Commission.
7. The trustee shall serve, without bond or other security, at the
cost and expense of respondent, on such reasonable and customary terms
and conditions as the Commission or a court may set. The trustee shall
have the authority to employ, at the cost and expense of respondent,
such consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
necessary to carry out the trustee's duties and responsibilities. The
trustee shall account for all monies derived from the divestiture and
all expenses incurred. After approval by the Commission and, in the
case of a court-appointed trustee, by the court, of the account of the
trustee, including fees for his or her services, all remaining monies
shall be paid at the direction of the respondent, and the trustee's
power shall be terminated. The trustee's compensation shall be based at
least in significant part on a commission arrangement contingent on the
trustee's divesting the Designated Columbus Cable Television System
Assets.
8. Respondent shall indemnify the trustee and hold the trustee
harmless against any losses, claims, damages, liabilities, or expenses
arising out of, or in connection with, the performance of the trustee's
duties, including all reasonable fees of counsel and other expenses
incurred in connection with the preparation for, or defense of any
claim, whether or not resulting in any liability, except to the extent
that such liabilities, losses, damages, claims, or expenses result from
misfeasance, gross negligence, willful or wanton acts, or bad faith by
the trustee.
9. If the trustee ceases to act or fails to act diligently, a
substitute trustee shall be appointed in the same manner as provided in
Paragraph III A. of this order.
10. The Commission or, in the case of a court-appointed trustee,
the court, may on its own initiative or at the request of the trustee
issue such additional orders or directions as may be necessary or
appropriate to accomplish the divestiture required by this order.
11. The trustee shall have no obligation or authority to operate or
maintain the Designated Columbus Cable Television System Assets.
12. The trustee shall report in writing to respondent and the
Commission every sixty (60) days concerning the trustee's efforts to
accomplish divestiture.
IV
It is further ordered that respondent shall comply with all terms
of the Hold Separate Agreement, attached to this Order and made a part
hereof as Appendix I. The Hold Separate Agreement shall continue in
effect until such time as the Columbus Cable Television System Assets
shall have been divested as required by this order.
V
It is further ordered that, for a period of ten (10) years from the
date this order becomes final, respondent shall not, without the prior
approval of the Commission, directly or indirectly:
A. Acquire any stock, share capital, equity, or other interest in
any concern, corporate or non-corporate, engaged in at the time of such
acquisition, or within the two years preceding such acquisition engage
in Cable Television Service within the Relevant Geographic Area; or
B. Acquire any assets used for or previously used for (and still
suitable for use for) Cable Television Service within the Relevant
Geographic Area.
Provided, however, that this Paragraph V shall not apply to the
acquisition of products or services in the ordinary course of business;
and provided further, that this Paragraph V shall not apply to the
acquisition of any interest in a concern that is not at the time of the
acquisition engaged in Cable Television Service within the Relevant
Geographic Area due to the sale within the preceding two years of all
assets used for Cable Television Service within [[Page 9850]] the
Relevant Geographic Area to another party who intended to operate said
assets for Cable Television Service within the Relevant Geographic
Area.
VI
It is further ordered that:
A. Within sixty (60) days after the date this order becomes final
and every sixty (60) days thereafter until respondent has fully
complied with the provisions of Paragraphs II and III of this order,
respondent shall submit to the Commission a verified written report
setting forth in detail the manner and form in which it intends to
comply, is complying, and has complied with Paragraphs II and III of
this order. Respondent shall include in its compliance reports, among
other things that are required from time to time, a full description of
the efforts being made to comply with Paragraphs II and III of the
order, including a description of all substantive contacts or
negotiations for the divestiture and the identity of all parties
contacted. Respondent shall include in its compliance reports copies of
all written communications to and from such parties, all internal
memoranda, and all reports and recommendations concerning divestiture.
B. One (1) year from the date this order becomes final, annually
for the next nine (9) years on the anniversary of the date this order
becomes final, and at other times as the Commission may require,
respondent shall file a verified written report with the Commission
setting forth in detail the manner and form in which it has complied
and is complying with this order.
VII
It is further ordered that respondent shall notify the Commission
at least thirty (30) days prior to any proposed change in the
respondent such as dissolution, assignment, sale resulting in the
emergence of a successor corporation, or the creation or dissolution of
subsidiaries or any other change that affect compliance obligations
arising out of the order.
VIII
It is further ordered that, for the purpose of determining or
securing compliance with this order, and subject to any legally
recognized privilege, upon written request and on reasonable notice to
respondent, respondent shall permit any duly authorized representative
of the Commission:
A. Access, during office hours and in the presence of counsel, to
inspect and copy all books, ledgers, accounts, correspondence,
memoranda and other records and documents in the possession or under
the control of respondent relating to any matters contained in this
order; and
B. Upon five days' notice to respondent and without restraint of
interference from it, to interview officers, directors, or employees of
respondent, who may have counsel present, relating to any matters
contained in this order.
Agreement to Hold Separate
This Agreement To Hold Separate (``Agreement'') is by and between
Tele-Communications, Inc. (``respondent'' or ``TCI''), a corporation
organized, existing, and doing business under and by virtue of the laws
of the State of Delaware, with its principal office and place of
business at 5619 DTC Parkway, Englewood, Colorado 80111; and the
Federal Trade Commission (``Commission''), an independent agency of the
United States Government, established under the Federal Trade
Commission Act of 1914, 15 U.S.C. Sec. 41, et seq.
Whereas, respondent entered into an agreement with TeleCable
Corporation (``TeleCable''), a Virginia corporation, whereby respondent
will acquire the stock of TeleCable and merge TeleCable into TCI
Communications, Inc., an entity within TCI (hereinafter the
``Acquisition''); and
Whereas, the Commission is now investigating the Acquisition to
determine if it would violate any of the statutes enforced by the
Commission; and
Whereas, if the Commission accepts the attached Agreement
Containing Consent Order (``Consent Agreement''), which would require
the divestiture of either the TCI or TeleCable Cable Television System
Assets in Columbus, Georgia, the Commission must place the Consent
Agreement on the public record for a period of at least sixty (60) days
and may subsequently withdraw such acceptance pursuant to the
provisions of Section 2.34 of the Commission's Rules; and
Whereas, the Commission is concerned that if an understanding is
not reached, preserving the status quo ante of the TeleCable Columbus
Cable Television System Assets during the period prior to the final
acceptance and issuance of the Consent Agreement by the Commission
(after the 60-day public comment period), divestiture resulting from
any proceeding challenging the legality of the Acquisition might not be
possible, or might be less than an effective remedy; and
Whereas, the Commission is concerned that if the Acquisition is
consummated, it will be necessary to preserve the Commission's ability
to require the divestiture of the assets described in Paragraph II of
the Consent Agreement and the Commission's right to have the TeleCable
Columbus Cable Television System Assets continue as a viable
independent entity; and
Whereas, the purpose of this Agreement and the Consent Agreement is
to:
(i) preserve the TeleCable Columbus Cable Television System Assets
as a viable independent cable television system pending possible
divestiture, and
(ii) remedy any anticompetitive effects of the Acquisition; and
Whereas, respondent's entering into this Agreement shall in no way
be construed as an admission by respondent that the Acquisition is
illegal; and
Whereas, respondent understands that no act or transaction
contemplated by this Agreement shall be deemed immune or exempt from
the provisions of the antitrust laws or the Federal Trade Commission
Act by reason of anything contained in this Agreement.
Now, therefore, the parties agree, upon understanding that the
Commission has not yet determined whether the Acquisition will be
challenged, and in consideration of the Commission's agreement that,
unless the Commission determines to reject the Consent Agreement, it
will not seek further relief from respondent with respect to the
Acquisition, except that the Commission may exercise any and all rights
to enforce this Agreement and the Consent Agreement to which it is
annexed and made a part thereof, and in the event the required
divestiture is not accomplished, to appoint a trustee to seek
divestiture pursuant to the Consent Agreement and to seek civil
penalties or a court-appointed trustee or other equitable relief, as
follows:
1. Respondent agrees to execute and be bound by the attached
Consent Agreement.
2. Respondent agrees that from the date this Agreement is accepted
until the earliest of the dates listed in subparagraphs 2.a-2.b, it
will comply with the provisions of paragraph 3 of this Agreement:
a. three (3) business days after the Commission withdraws its
acceptance of the Consent Agreement pursuant to the provisions of
Section 2.34 of the Commission's Rules; or
b. the day after the divestiture required by the Consent Agreement
has been completed.
3. To ensure the independence and viability of the TeleCable
Columbus [[Page 9851]] Cable Television System Assets and to assure
that no competitive information is exchanged between the TeleCable
Columbus Cable Television System and the TCI Columbus Cable Television
System, TCI shall operate the TeleCable Columbus Cable Television
System separate and apart on the following terms and conditions:
a. To the maximum extent possible, TCI will retain current
TeleCable Columbus Cable Television System management and employees
(``the management team'') to manage and maintain the TeleCable Columbus
Cable Television System. The individuals on the management team shall
manage the TeleCable Columbus Cable Television System independently of
the management of TCI's other businesses, including the TCI Columbus
Cable Television System. The individuals on the management team shall
not be involved in any way in the operation or management of any other
TCI Cable Television System. If any member of the management team is
unable or unwilling to continue to serve in his or her current position
(or becomes unable to do so during the term of this Agreement) that
position will be filled by an individual not involved in any way in the
operation or management of any other TCI Cable Television System.
b. The management team, in its capacity as such, shall report
directly and exclusively to an individual to be designated by TCI who
has no direct responsibilities for Cable Television System operations
and who is competent to assure the continued viability and
competitiveness of the TeleCable Columbus Cable Television System
(``TCI Contact'').
c. TCI shall not exercise direction or control over, or influence
directly or indirectly the management team or any of its activities
relating to the operations of the TeleCable Columbus Cable Television
System; provided, however, that TCI may exercise such direction and
control over the management team and the TeleCable Columbus Cable
Television System Assets as is necessary to ensure compliance with this
Agreement and with the Consent Agreement and with all applicable laws.
d. TCI shall maintain the marketability, viability, and
competitiveness of the TeleCable Columbus Cable Television System
assets and shall not sell, transfer, encumber (other than in the
ordinary course of business), or otherwise impair their marketability,
viability or competitiveness.
e. Except for the TCI Contact and the management team, TCI shall
not permit any other TCI employee, officer, or director to be involved
in the management of the TeleCable Columbus Cable Television System;
provided, however, that TCI employees involved in engineering,
construction, customer service, data processing, training, human
resources, finance, legal services, tax, accounting, insurance,
internal audit, payroll, programming, purchasing, real estate, risk
management, telephony, compliance with FCC regulations, contract
administration, and similar services (``support service employees'')
may provide such services to the TeleCable Columbus Cable Television
System.
f. Except as required by law, and except to the extent that
necessary information is exchanged in the course of evaluating the
acquisition, defending investigations or litigation, or negotiating
agreements to divest, TCI, other than the TCI Contact, the management
team and support service employees involved in the TeleCable Columbus
Cable Television System business, shall not receive or have access to,
or the use of any material confidential information about the TeleCable
Columbus Cable Television System. (``Material Confidential
information,'' as used herein, means competitively sensitive or
proprietary information not otherwise known to TCI from sources other
than the TCI Contact, the management team involved in the TeleCable
Columbus Cable Television System, or the support service employees.)
g. The management team shall serve at the cost and expense of TCI.
TCI shall indemnify the management team against any losses or claims of
any kind that might arise out of his or her involvement under this
Agreement, except to the extent that such losses or claims result from
misfeasance, gross negligence, willful or wanton acts, or bad faith by
the management team.
h. If any member of the management team ceases to act or fails to
act diligently, a substitute member shall be appointed.
4. Should the Federal Trade Commission seek in any proceeding to
compel respondent to divest any of the Columbus Cable Television System
Assets, as provided in the Consent Agreement, or to seek any other
injunctive or equitable relief for any failure to comply with the
Consent Agreement or this Agreement, or in any way relating to the
Acquisition, as defined in the draft complaint, respondent shall not
raise any objection based upon the expiration of the applicable Hart-
Scott-Radino Antitrust Improvements Act waiting period or the fact that
the Commission has permitted the Acquisition. Respondent also waives
all rights to contest the validity of this Agreement.
5. To the extent that this Agreement requires respondent to take,
or prohibits respondent from taking, certain actions that otherwise may
be required or prohibited by contract, respondent shall abide by the
terms of this Agreement or the Consent Agreement and shall not assert
as a defense such contract requirements in any action brought by the
Commission to enforce the terms of this Agreement or Consent Agreement.
6. For the purpose of determining or securing compliance with this
Agreement, subject to any legally recognized privilege, and upon
written request with reasonable notice to respondent made to its
principal office, respondent shall permit any duly authorized
representative or representatives of the Commission:
a. Access during the office hours of respondent and in the presence
of counsel to inspect and copy all books, ledgers, accounts,
correspondence, memoranda, and other records and documents in the
possession or under the control of respondent relating to compliance
with this Agreement;
b. Upon five (5) days' notice to respondent, and without restraint
or interference from respondent, to interview officers or employees of
respondent, who may have counsel present, regarding any such matters.
7. This Agreement shall not be binding until approved by the
Commission.
Analysis to Aid Public Comment on the Provisionally Accepted Consent
Order
The Federal Trade Commission (``Commission'') has accepted for
public comment from Tele-Communications, Inc. (``TCI''), an agreement
containing consent order. This agreement has been placed on the public
record for sixty (60) days from receipt of comments from interested
persons.
Comments received during this period will become part of the public
record. After sixty (60) days, the Commission will again review the
agreement and the comments received, and will decide whether it should
withdraw from the agreement or make final the agreement's order.
The Commission's investigation of this matter concerns TCI's
proposed acquisition of TeleCable Corporation (``TeleCable'').
TeleCable is the 18th largest cable company in the United States, and
operates 21 cable systems located in 15 states. The Commission's
investigation of this matter focused on the Columbus, Georgia,
metropolitan area. There are only three cable [[Page 9852]] television
providers in Columbus. TCI and TeleCable are the two largest cable
television providers in the Columbus area in terms of the number of
subscribers and the number of homes passed.
the agreement containing consent order would, if finally issued by
the Commission, settle charges alleged in the Commission's complaint
that TCI's acquisition of TeleCable would substantially lessen
competition in the distribution of multichannel video programming by
cable television in the Columbus, Georgia, area, in violation of
Section 7 of the Clayton Act. The nature of such competition to be
preserved is actual competition to serve existing homes, hotels, and
apartment complexes. The order will also preserve competition for
providing cable service to new housing developments and other presently
cabled portions of the Columbus area. The Commission's complaint
further alleges that TCI's merger agreement with TeleCable violates
Section 5 of the Federal Trade Commission Act.
The order accepted for public comment would require TCI to divest a
cable television system in the Columbus, Georgia, area. If TCI fails to
divest a system within one year, the order allows the Commission to
appointment a trustee to sell a cable system. A hold separate agreement
executed in conjunction with the consent agreement requires TCI, until
completion of the divestiture (or as otherwise specified), to maintain
TeleCable's Columbus cable system separate from TCI's other operations.
For ten (10) years from the date the order becomes final, the order
would also prohibit TCI, without obtaining prior Commission approval,
from acquiring any cable television system in the Columbus, Georgia,
area.
The purpose of this analysis is to invite public comment concerning
the consent order. This analysis is not intended to constitute an
official interpretation of the agreement and order or to modify their
terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 95-4280 Filed 2-21-95; 8:45 am]
BILLING CODE 6750-01-M