[Federal Register Volume 61, Number 36 (Thursday, February 22, 1996)]
[Notices]
[Pages 6847-6851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4005]



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FEDERAL TRADE COMMISSION
[File No. 961 0018]


Hughes Danbury Optical Systems, Inc., Hughes Electronics 
Corporation, General Motors Corporation; Consent Agreement With 
Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Consent Agreement.

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SUMMARY: This Consent Agreement, accepted subject to final Commission 
approval, settles alleged violations of federal law prohibiting unfair 
or deceptive acts or practices and unfair methods of competition 
arising from the purchase of the business and selected assets of the 
Itek Optical Systems Division of Litton Industries by Hughes Danbury 
Optical Systems, Inc. (``HDOS''). The proposed complaint alleges that 
the acquisition, if consummated, would violate Section 7 of the Clayton 
Act, as amended, and Section 5 of the Federal Trade Commission Act, as 
amended, in the market for the research, development, manufacture and 
sale of an Airborne Laser (``ABL'') system for use in the U.S. Air 
Force's ABL program. The ABL program currently envisions developing an 
ABL system that would utilize a customized 747 aircraft to fly at high 
altitudes near the forward edge of a battle area to locate and destroy 
incoming short-range ballistic missiles. Two teams--with The Boeing 
Company and Rockwell International Corporation as the primary 
contractors--have been awarded contracts to develop a concept design 
for an ABL demonstrator. The proposed consent order would, among other 
things, prohibit the respondents from enforcing the exclusivity 
provisions contained in a teaming agreement--between HDOS and Xinetics, 
Inc.--so that Xinetics will be free to supply the Boeing team with 
deformable mirrors for the ABL program. The respondents have also 
entered into an Interim Agreement with the Commission in which they 
agreed to be bound by the proposed consent order as of February 9, 
1996.

DATES: Comments must be received on or before April 22, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room H-159, Sixth Street and Pennsylvania Avenue, NW., Washington, DC 
20580.

FOR FURTHER INFORMATION CONTACT: William J. Baer, FTC/H-374, 
Washington, DC 20580 (202) 326-2932; or Ann B. Malester, FTC/S-2308, 
Washington, DC 20580 (202) 326-2682.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade 

[[Page 6848]]
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 (``the Commission''), having initiated 
an investigation of the acquisition of the Itek Optical Systems 
Division of Litton Systems, Incorporated (``Itek''), by Hughes Danbury 
Optical Systems, Incorporated (``HDOS''), which is a wholly-owned 
subsidiary of Hughes Aircraft Company, which is a wholly-owned 
subsidiary of Hughes Electronics Corporation (``Hughes''), which is a 
wholly-owned subsidiary of General Motors Corporation (``GM''), and it 
now appears that HDOS, Hughes and GM, hereinafter sometimes referred to 
as proposed respondents, are willing to enter into an agreement 
containing an order to refrain from certain acts and providing for 
other relief:
    It is hereby agreed by and between proposed respondents, by their 
duly authorized officers and attorneys, and counsel for the Commission 
that:
    1. Proposed respondent HDOS is a corporation organized, existing, 
and doing business under and by virtue of the laws of the State of 
Delaware, with its office and principal place of business located at 
100 Wooster Road, Danbury, Connecticut 06810.
    2. Proposed respondent Hughes is a corporation organized, existing, 
and doing business under and by virtue of the laws of the State of 
Delaware, with its office and principal place of business located at 
7200 Hughes Terrace, Los Angeles, California 90045.
    3. Proposed respondent GM is a corporation organized, existing, and 
doing business under and by virtue of the laws of the State of 
Delaware, with its office and principal place of business located at 
3044 W. Grand Blvd., Detroit, Michigan 48202.
    4. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint here attached.
    5. Proposed respondents waive:
    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.
    6. Proposed respondents shall submit within thirty (30) days of the 
date this agreement is signed by proposed respondents an initial 
report, pursuant to Section 2.33 of the Commission's Rules, signed by 
the proposed respondents setting forth in detail the manner in which 
the proposed respondents will comply with Paragraph II and Paragraph 
III of the order when and if entered. Such report will not become part 
of the public record unless and until the accompanying agreement and 
order are accepted by the Commission.
    7. This agreement shall not become a 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 proposed 
respondents, 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.
    8. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondents that the law has been 
violated as alleged in the draft of complaint here attached, or that 
the facts as alleged in the draft complaint, other than jurisdictional 
facts, are true.
    9. 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 Section 2.34 of the 
Commission's Rules, the Commission may, without further notice to 
proposed respondents, (1) issue its complaint corresponding in form and 
substance with the draft of complaint here attached and its decision 
containing the following order to refrain from certain acts in 
disposition of the proceeding, and (2) make information public with 
respect thereto. When so entered, the order 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 respondents' addresses as stated in this agreement shall 
constitute service. Proposed respondents waive any right they 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.
    10. Proposed respondents have read the draft of complaint and order 
contemplated hereby. Proposed respondents understand that once the 
order has been issued, they will be required to file one or more 
compliance reports showing that they have fully complied with the 
order. Proposed respondents further understand that they 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. ``HDOS'' means Hughes Danbury Optical Systems, Inc., its 
officers, employees, agents and representatives, predecessors, 
successors, and assigns; its subsidiaries, divisions, groups and 
affiliates controlled by HDOS, and the respective officers, employees, 
agents, and representatives, successors and assigns of each.
    B. ``Hughes'' means Hughes Electronics Corporation, its officers, 
employees, agents and representatives, predecessors, successors, and 
assigns; its subsidiaries, divisions, groups and affiliates controlled 
by Hughes, and the respective officers, employees, agents, and 
representatives, successors and assigns of each.
    C. ``GM'' means General Motors Corporation, its officers, 
employees, agents and representatives, predecessors, successors, and 
assigns; its subsidiaries, divisions, groups and affiliates controlled 
by GM, and the respective officers, employees, agents, and 
representatives, successors and assigns of each.
    D. ``Itek'' means Itek Optical Systems Division of Litton Systems, 
Incorporated, its officers, employees, agents and representatives, 

[[Page 6849]]
predecessors, successors, and assigns; its subsidiaries, divisions, 
groups and affiliates controlled by Itek, and the respective officers, 
employees, agents, and representatives, successors and assigns of each.
    E. ``Respondents'' means HDOS, Hughes and GM.
    F. ``Commission'' means the Federal Trade Commission.
    G. ``Xinetics'' means Xinetics Incorporated, a corporation 
organized, existing and doing business under and by virtue of the laws 
of the Commonwealth of Massachusetts, with its office and principal 
place of business located at 410 Great Road #6, Littleton, 
Massachusetts 01460.
    H. ``Person'' means any natural person, corporate entity, 
partnership, association, joint venture, government entity, trust or 
other business or legal entity.
    I. ``HDOS/Xinetics Letter of Intent'' means the Letter of Intent 
entered into on September 21, 1995, between HDOS and Xinetics in which 
HDOS expresses its intention to use Xinetics as a supplier of any 
Deformable Mirror which may be required for the Phillips Laboratory 
Airborne Laser Program.
    J. ``Phillips Laboratory Airborne Laser Program'' is a United 
States Air Force Advanced Technology Demonstration program to develop 
and then demonstrate the necessary technologies to acquire, track, and 
destroy theater ballistic missiles during the boost phase of flight.
    K. ``Non-Public ABL Information'' means any information not in the 
public domain received or developed by Itek in its capacity as a 
subcontractor to Lockheed Martin Corporation for the Phillips 
Laboratory Airborne Laser Program. Non-Public ABL Information shall not 
include: (i) information which subsequently falls within the public 
domain through no violation of this order by Respondents, or (ii) 
information which subsequently becomes known to Respondents not in 
breach of a confidential disclosure agreement.

II

    It is further ordered that Respondents shall not enforce or attempt 
to enforce any provision contained in the HDOS/Xinetics Letter of 
Intent, or take any other action, that would inhibit Xinetics from 
teaming or otherwise contracting with any other person for the purpose 
of bidding on, designing, developing, manufacturing, or supplying any 
part of the Phillips Laboratory Airborne Laser Program.

III

    It is further ordered that:
    A. Respondents shall not receive, gain access to or in any manner 
obtain any Non-Public ABL Information without the express written 
permission of Lockheed Martin Corporation.
    B. Upon request from Lockheed Martin Corporation, Respondents shall 
provide to Lockheed Martin Corporation any Non-Public ABL Information 
in a timely fashion not to exceed seven (7) days from the receipt of 
such request. Respondents may require payment for their own direct 
costs in providing such information.

IV

    It is further ordered that Respondents shall comply with all terms 
of the Interim Agreement, attached to this order and made a part hereof 
as Appendix I.

V

    It is further ordered that within sixty (60) days of the date this 
order becomes final and every sixty days thereafter for the first year 
after this order becomes final, and at such other times as the 
Commission may require, Respondents shall file a verified written 
report with the Commission setting forth in detail the manner and form 
in which they have complied and are complying with this order. 
Respondents shall include in their compliance reports, among other 
things that are required from time to time, a full description of the 
efforts being made to comply with Paragraph II and Paragraph III of the 
order. Respondents shall include in their compliance reports copies of 
all written communications, all internal memoranda, and all reports and 
recommendations concerning compliance with the provisions in Paragraph 
II and Paragraph III of the order.

VI

    It is further ordered that Respondents shall notify the Commission 
at least thirty (30) days prior to any proposed change in the corporate 
Respondents, such as dissolution, assignment, sale resulting in the 
emergence of a successor corporation, or the creation or dissolution of 
subsidiaries or any other change in the corporate Respondents that may 
affect compliance obligations arising out of the order.

VII

    It is further ordered that, for the purpose of determining or 
securing compliance with this order, Respondents 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 any Respondent relating to any matters contained in this 
order; and
    B. Upon five (5) days' notice to any Respondent without restraint 
or interference from it, to interview officers, directors, or employees 
of that Respondent, who may have counsel present, regarding such 
matters.

Interim Agreement

    This Interim Agreement is by and between Hughes Danbury Optical 
Systems, Incorporated (``HDOS''), Hughes Electronics Corporation 
(``Hughes''), and General Motors Corporation (``GM''), three 
corporations organized and existing under the laws of the State of 
Delaware (collectively referred to as ``Proposed Respondents''), and 
the Federal Trade Commission (the ``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. (collectively, 
the ``Parties'').

Premises

    Whereas, HDOS has proposed to acquire the Itek Optical Systems 
Division of Litton Systems, Incorporated (``Itek''); and
    Whereas, the Commission is now investigating the proposed 
acquisition to determine if it would violate any of the statutes the 
Commission enforces; and
    Whereas, if the Commission accepts the Agreement Containing Consent 
Order (``Consent Agreement''), the Commission will place it on the 
public record for a period of at least sixty (60) days and subsequently 
may either withdraw such acceptance or issue and serve its Complaint 
and decision in disposition of the proceeding 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 competition during the period prior to the 
final acceptance of the Consent Agreement by the Commission (after the 
60-day public notice period), there may be interim competitive harm and 
divestiture or other relief resulting from a proceeding challenging the 
legality of the proposed acquisition might not be possible, or might be 
less than an effective remedy; and

[[Page 6850]]

    Whereas, Proposed Respondents entering into this Interim Agreement 
shall in no way be construed as an admission by Proposed Respondents 
that the proposed acquisition constitutes a violation of any statute; 
and
    Whereas, Proposed Respondents understand that no act or transaction 
contemplated by this Interim 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 Interim 
Agreement.
    Now, therefore, the Parties agree, upon the understanding that the 
Commission has not yet determined whether the proposed acquisition will 
be challenged, and in consideration of the Commission's agreement that, 
at the time it accepts the Consent Agreement for public comment, it 
will grant early termination of the Hart-Scott-Rodino waiting period, 
as follows:
    1. Proposed Respondents agree to execute and be bound by the terms 
of the Order contained in the Consent Agreement, as if it were final, 
from the date the Consent Agreement is accepted for public comment by 
the Commission.
    2. Proposed Respondents agree to deliver within three (3) days of 
the date the Consent Agreement is accepted for public comment by the 
Commission, a copy of the Consent Agreement and a copy of this Interim 
Agreement to the United States Department of Defense, The Boeing 
Company, Lockheed Martin Corporation and Xinetics Incorporated.
    3. Proposed Respondents agree to submit within thirty (30) days of 
the date the Consent Agreement is signed by the Proposed Respondents, 
an initial report, pursuant to Section 2.33 of the Commission's Rules, 
signed by the Proposed Respondents setting forth in detail the manner 
in which the Proposed Respondents will comply with Paragraph II and 
Paragraph III of the Consent Agreement.
    4. Proposed Respondents agree that, from the date the Consent 
Agreement is accepted for public comment by the Commission until the 
first of the dates listed in subparagraphs 4.a and 4.b, they will 
comply with the provisions of this Interim Agreement:
    a. Ten (10) 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;
    b. The date the Commission issues its Complaint and Decision and 
Order.
    5. Proposed Respondents waive all rights to contest the validity of 
this Interim Agreement.
    6. For the purpose of determining or securing compliance with this 
Interim Agreement, Proposed Respondents 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 any Proposed Respondent relating to any matters 
contained in this Interim Agreement; and
    b. Upon five (5) days' notice to any Proposed Respondent and 
without restraint or interference from it, to interview officers, 
directors, or employees of that Proposed Respondent, who may have 
counsel present, regarding any such matters.
    7. This Interim Agreement shall not be binding until accepted by 
the Commission.

Analysis of Proposed Consent Order to Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an agreement containing a proposed Consent Order 
from General Motors Corporation, Hughes Electronics Corporation 
(``Hughes''), and Hughes Danbury Optical Systems, Inc. (``HDOS''), 
collectively referred to as ``respondents.'' The proposed Consent Order 
prohibits respondents from enforcing exclusivity provisions in a 
teaming agreement between HDOS and Xinetics Incorporated for the U.S. 
Air Force's Airborne Laser (``ABL'') program. In addition, the proposed 
Consent Order prohibits respondents from obtaining information not in 
the public domain developed or obtained by the Itek Optical Systems 
Division of Litton Systems, Inc., in its capacity as a member of the 
Boeing-Lockheed Martin team for the ABL program without the express 
written permission of Lockheed Martin Corporation.
    The proposed Consent Order has been placed on the public record for 
sixty (60) days for reception of comments by 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 proposed 
Order.
    On September 26, 1995, HDOS entered into a letter of intent to 
purchase the business and selected assets of the Itek Optical Systems 
Division of Litton Industries, Inc. (``Itek''). The proposed complaint 
alleges that the acquisition, if consummated, would violate Section 7 
of the Clayton Act, as amended, 15 U.S.C. Sec. 18, and Section 5 of the 
Federal Trade Commission Act, as amended, 15 U.S.C. Sec. 45, in the 
market for the research, development, manufacture and sale of an 
Airborne Laser system for use in the U.S. Air Force's Airborne Laser 
program.
    The Airborne Laser program is the premier anti-missile program in 
the Department of Defense's Theater Missile Defense System. As 
currently envisioned, the ABL system will utilize a customized 747 
aircraft to fly at high altitudes near the forward edge of a battle 
area to locate and destroy incoming short-range ballistic missiles. The 
ABL system would intercept an enemy missile during its launch or boost 
phase by focusing a high energy laser beam on the missile's fuel tank 
to rupture the tank and destroy the missile. Destruction of the missile 
during launch would cause the warhead to fall on enemy territory. If 
the ABL system works as planned, an enemy could find it impossible to 
launch its missiles for fear of contaminating its own territory with 
nuclear, chemical or biological warheads.
    The ABL program is currently in the Demonstrator Concept Design 
phase (Phase I). Two teams have each been awarded $21.4 million 
contracts to develop a concept design for an ABL demonstrator. The 
prime contractors for the two teams are The Boeing Company (``Boeing'') 
and Rockwell International Corporation (``Rockwell''). The Air Force 
plans to release the Request For Proposal (``RFP'') for the building of 
an ABL demonstrator (Phase II) in May 1996. In January 1997, one of the 
two teams will be awarded $700 million to build the Phase II ABL 
demonstrator based on its Phase I design.
    Both Hughes and Itek are participating in the ABL program. Hughes 
is exclusively teamed with Rockwell. Itek is a member of the Boeing 
team through an exclusive teaming agreement with Lockheed Martin. Both 
Hughes and Itek are responsible for designing and supplying an adaptive 
optics system for their respective teams.
    Both teams will utilize an adaptive optics system as a part of 
their ABL demonstrator design to improve the accuracy and intensity of 
the ABL's laser beam. Adaptive optics systems compensate for 
distortions in light waves caused by atmospheric turbulence by 
recording and comparing wavefront characteristics and feeding this 
information to an array of deformable mirrors. A deformable mirror is a 
thin, flexible mirror 

[[Page 6851]]
equipped with electromechanical actuators. The mirror's actuators 
respond to an electrical signal from a computer and alter the mirror's 
shape to counteract the distortions of the atmosphere. Deformable 
mirrors are critical to the effective functioning of the adaptive 
optics system.
    There are only two viable manufacturers of deformable mirrors for 
the ABL, Itek and Xinetics. Itek has exclusively contracted with 
Lockheed Martin to supply deformable mirrors to the Boeing team. 
Xinetics has exclusively contracted with Hughes to supply deformable 
mirrors to the Rockwell team.
    The standard Merger Guidelines entry analysis utilizing a two year 
time period is not applicable to the ABL competition. The ABL Phase I 
concept design review is scheduled to occur in March 1996 and the bids 
for Phase II are expected to be due in July of 1996. Therefore, the 
only viable entrants are firms with the current capability to supply 
deformable mirrors. Itek and Xinetics are the only firms that currently 
possess the expertise, personnel and facilities required to design and 
fabricate deformable mirrors.
    Respondents' acquisition of Itek poses serious antitrust concerns. 
Following the acquisition, the Boeing-Lockheed Martin team would not be 
able to replace Hughes/Itek as the supplier of its deformable mirrors 
for the ABL competition. This would allow Hughes to: (1) increase the 
bid prices for the ABL competition by raising the price of the 
deformable mirrors on both teams; (2) decrease its investment in 
technology or quality on one or both teams' designs; and/or (3) gain 
access to competitively sensitive information relating to the Boeing 
team's technical design and cost for its entire adaptive optics system.
    Under the proposed Consent Order, respondents are prohibited from 
enforcing the exclusivity provisions contained in Hughes's teaming 
agreement with Xinetics for the ABL program. Xinetics will be free to 
supply the Boeing team with deformable mirrors for the ABL program. 
This will ensure that the Boeing team will have an alternate source of 
deformable mirrors for the ABL competition. The purpose of this 
provision of the Consent Order is to constrain Hughes's ability to 
raise the price of both teams' bids or decrease its investment in 
technology or quality on one or both teams' designs for the ABL 
competition.
    Under the proposed Consent Order, respondents are also prohibited 
from receiving, gaining access to, or obtaining in any manner, without 
Lockheed Martin's approval, information not in the public domain that 
was developed or obtained by Itek in its capacity as a member of the 
Boeing team for the ABL program. The purpose of this provision of the 
Consent Order is to ensure that the Rockwell team will not have access 
to competitively sensitive information relating to the technical design 
and cost of the Boeing team's adaptive optics system for the ABL 
competition.
    In order to preserve competition in the market for the research, 
development, manufacture and sale of an Airborne Laser system for use 
in the U.S. Air Force's Airborne Laser program during the period prior 
to the Commission's issuance of the Consent Order (after the 60-day 
public notice period), respondents have entered into an Interim 
Agreement with the Commission in which they agreed to be bound by the 
proposed Consent Order as of the date the Commission accepted the 
proposed Consent Order for public comment.
    The purpose of this analysis is to facilitate the public comment on 
the proposed Order, and it is not intended to constitute on official 
interpretation of the agreement and proposed Order or to modify in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-4005 Filed 2-21-95; 8:45 am]
BILLING CODE 6750-01-M