[Federal Register Volume 61, Number 187 (Wednesday, September 25, 1996)]
[Notices]
[Pages 50301-50322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24599]


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FEDERAL TRADE COMMISSION

[File No. 961-0004]


Time Warner Inc., et al.; 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 or deceptive acts or practices and unfair methods of 
competition, this consent agreement, accepted subject to final 
Commission approval, would require, among other things, a restructuring 
of the acquisition by Time Warner Inc. of Turner Broadcasting System, 
Inc., which are two of the country's largest cable programmers. Time 
Warner, Turner, TCI and its subsidiary Liberty Media Corp. have agreed 
to make a number of structural changes and to abide by certain 
restrictions designed to break down the entry barriers created by the 
proposed transaction.

DATES: Comments must be received on or before November 25, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT: William Baer or George Cary, FTC/H-
374, Washington, D.C. 20580. (202) 326-2932 or 326-3741.

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 Sec. 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 Turner Broadcasting 
System, Inc. (``Turner'') by Time Warner Inc. (``Time Warner''), and 
Tele-Communications, Inc.'s (``TCI'') and Liberty Media Corporation's 
(``LMC'') proposed acquisitions of interests in Time Warner, and it now 
appearing that Time Warner, Turner, TCI, and LMC, hereinafter sometimes 
referred to as ``proposed respondents,'' are willing to enter into an 
agreement containing an order to divest certain assets, 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 Time Warner 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 75 Rockefeller Plaza, New York, New York 10019.
    2. Proposed respondent Turner is a corporation organized, existing 
and doing business under and by virtue of the laws of the State of 
Georgia, with its office and principal place of business located at One 
CNN Center, Atlanta, Georgia 30303.
    3. Proposed respondent TCI is a corporation organized, existing and 
doing business under and by virtue of the law of the State of Delaware, 
with its office and principal place of business located at 5619 DTC 
Parkway, Englewood, Colorado 80111.
    4. Proposed respondent LMC is a corporation organized, existing and 
doing business under and by virtue of the law of the State of Delaware, 
with its office and principal place of business located at 8101 East 
Prentice Avenue, Englewood, Colorado 80111.
    5. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint for purposes of this agreement and 
order only.
    6. Proposed respondents waive:
    (1) any further procedural steps;
    (2) the requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    (3) all rights to seek judicial review or otherwise to challenge or 
contest the validity of the order entered pursuant to this agreement; 
and
    (4) any claim under the Equal Access to Justice Act.
    7. Proposed respondents shall submit (either jointly or 
individually), within sixty (60) days of the date this

[[Page 50302]]

agreement is signed by proposed respondents, an initial report or 
reports, pursuant to Sec. 2.33 of the Commission's Rules, signed by the 
proposed respondents and setting forth in detail the manner in which 
the proposed respondents will comply with Paragraphs VI, VII and VIII 
of the order, when and if entered. Such report will not become part of 
the public record unless and until this agreement and order are 
accepted by the Commission for public comment.
    8. 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 a draft of 
the complaint contemplated hereby, 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 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.
    9. 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, or that the facts as 
alleged in the draft complaint, other than jurisdictional facts, are 
true.
    10. 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 
respondents, (1) issue its complaint corresponding in form and 
substance with the draft of complaint here attached and its decision 
containing the following order 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.
    11. Proposed respondents have read the proposed 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.
    12. Proposed respondents agree to be bound by all of the terms of 
the Interim Agreement attached to this agreement and made a part hereof 
as Appendix I, upon acceptance by the Commission of this agreement for 
public comment. Proposed respondents agree to notify the Commission's 
Bureau of Competition in writing, within 30 days of the date the 
Commission accepts this agreement for public comment, of any and all 
actions taken by the proposed respondents to comply with the Interim 
Agreement and of any ruling or decision by the Internal Revenue Service 
(``IRS'') concerning the Distribution of The Separate Company stock to 
the holders of the Liberty Tracking Stock within two (2) business days 
after service of the IRS Ruling.
    13. The order's obligations upon proposed respondents are 
contingent upon consummation of the Acquisition.

Order

I

    As used in this Order, the following definitions shall apply:
    (A) ``Acquisition'' means Time Warner's acquisition of Turner and 
TCI's and LMC's acquisition of interest in Time Warner.
    (B) ``Affiliated'' means having an Attributable Interest in a 
Person.
    (C) ``Agent'' or ``Representative'' means a Person that is acting 
in a fiduciary capacity on behalf of a principal with respect to the 
specific conduct or action under review or consideration.
    (D) ``Attributable Interest'' means an interest as defined in 47 
C.F.R. 76.501 (and accompanying notes), as that rule read on July 1, 
1996.
    (E) ``Basic Service Tier'' means the Tier of video programming as 
defined in 47 C.F.R. 76.901(a), as that rule read on July 1, 1996.
    (F) ``Buying Group'' or ``Purchasing Agent'' means any Person 
representing the interests of more than one Person distributing 
multichannel video programming that: (1) Agrees to be financially 
liable for any fees due pursuant to a Programming Service Agreement 
which it signs as a contracting party as a representative of its 
members, or each of whose members, as contracting parties, agrees to be 
liable for its portion of the fees due pursuant to the programming 
service agreement; (2) agrees to uniform billing and standardized 
contract provisions for individual members; and (3) agrees either 
collectively or individually on reasonable technical quality standards 
for the individual members of the group.
    (G) ``Carriage Terms'' means all terms and conditions for sale, 
licensing or delivery to an MVPD for a Video Programming Service and 
includes, but is not limited to, all discounts (such as for volume, 
channel position and Penetration Rate), local advertising 
availabilities, marketing, and promotional support, and other terms and 
conditions.
    (H) ``CATV'' means a cable system, or multiple cable systems 
Controlled by the same Person, located in the United States.
    (I) ``Closing Date'' means the date of the closing of the 
Acquisition.
    (J) ``CNN'' means the Video Programming Service Cable News Network.
    (K) ``Commission'' means the Federal Trade Commission.
    (L) ``Competing MVPD'' means an Unaffiliated MVPD whose proposed or 
actual service area overlaps with the actual service area of a Time 
Warner CATV.
    (M) ``Control,'' ``Controlled'' or ``Controlled by'' has the 
meaning set forth in 16 CFR 801.1 as that regulation read on July 1, 
1996, except that Time Warner's 50% interest in Comedy Central (as of 
the Closing Date) and TCI's 50% interests in Bresnan Communications, 
Intermedia Partnerships and Lenfest Communications (all as of the 
Closing Date) shall not be deemed sufficient standing alone to confer 
Control over that Person.
    (N) ``Converted WTBS'' means WTBS once converted to a Video 
Programming Service.
    (O) ``Fully Diluted Equity of Time Warner'' means all Time Warner 
common stock actually issued and outstanding plus the aggregate number 
of shares of Time Warner common stock that would be issued and 
outstanding assuming the exercise of all outstanding options, warrants 
and rights (excluding shares that would be issued in the event a poison 
pill is triggered) and the

[[Page 50303]]

conversion of all outstanding securities that are convertible into Time 
Warner common stock.
    (P) ``HBO'' means the Video Programming Service Home Box Office, 
including multiplexed versions.
    (Q) ``Independent Advertising-Supported News and Information Video 
Programming Service'' means a National Video Programming Service (1) 
that is not owned, Controlled by, or Affiliated with Time Warner; (2) 
that is a 24-hour per day service consisting of current national, 
international, sports, financial and weather news and/or information, 
and other similar programming; and (3) that has national significance 
so that, as of February 1, 1997, it has contractual commitments to 
supply its service to 10 million subscribers on Unaffiliated MVPDs, or, 
together with the contractual commitments it will obtain from Time 
Warner, it has total contractual commitments to supply its service to 
15 million subscribers. If no such Service has such contractual 
commitments, then Time Warner may choose from among the two Services 
with contractual commitments with Unaffiliated MVPDs for the largest 
number of subscribers.
    (R) ``Independent Third Party'' means (1) a Person that does not 
own, Control, and is not Affiliated with or has a share of voting 
power, or an Ownership Interest in, greater than 1% of any of the 
following: TCI, LMC, or the Kearns-Tribune Corporation; or (2) a Person 
which none of TCI, LMC, or the TCI Control Shareholders owns, Controls, 
is Affiliated with, or in which any of them have a share of voting 
power, or an Ownership Interest in, greater than 1%. Provided, however, 
that an Independent Third Party shall not lose such status if, as a 
result of a transaction between an Independent Third Party and The 
Separate Company, such Independent Third Party becomes a successor to 
The Separate Company and the TCI Control Shareholders collectively hold 
an Ownership Interest of 5% or less and collectively hold a share of 
voting power of 1% or less in that successor company.
    (S) ``LMC'' means Liberty Media Corporation, all of its directors, 
officers, employees, Agents, and Representatives, and also includes (1) 
all of its predecessors, successors, assigns, subsidiaries, and 
divisions, all of their respective directors, officers, employees, 
Agents, and Representatives, and the respective successors and assigns 
of any of the foregoing; and (2) partnerships, joint ventures, and 
affiliates that Liberty Media Corporation Controls, directly or 
indirectly.
    (T) ``The Liberty Tracking Stock'' means Tele-Communications, Inc. 
Series A Liberty Media Group Common Stock and Tele-Communications, Inc. 
Series B Liberty Media Group Common Stock.
    (U) ``Multichannel Video Programming Distributor'' or ``MVPD'' 
means a Person providing multiple channels of video programming to 
subscribers in the United States for which a fee is charged, by any of 
various methods including, but not limited to, cable, satellite master 
antenna television, multichannel multipoint distribution, direct-to-
home satellite (C-band, Ku-band, direct broadcast satellite), ultra 
high-frequency microwave systems (sometimes called LMDS), open video 
systems, or the facilities of common carrier telephone companies or 
their affiliates, as well as Buying Groups or Purchasing Agents of all 
such Persons.
    (V) ``National Video Programming Service'' means a Video 
Programming Service that is intended for distribution in all or 
substantially all of the United States.
    (W) ``Ownership Interest'' means any right(s), present or 
contingent, to hold voting or nonvoting interest(s), equity 
interest(s), and/or beneficial ownership(s) in the capital stock of a 
Person.
    (X) ``Penetration Rate'' means the percentage of Total Subscribers 
on an MVPD who receives a particular Video Programming Service.
    (Y) ``Person'' includes any natural person, corporate entity, 
partnership, association, joint venture, government entity or trust.
    (Z) ``Programming Service Agreement'' means any agreement between a 
Video Programming Vendor and an MVPD by which a Video Programming 
Vendor agrees to permit carriage of a Video Programming Service on that 
MVPD.
    (AA) ``The Separate Company'' means a separately incorporated 
Person, either existing or to be created, to take the actions provided 
by Paragraph II and includes without limitation all of The Separate 
Company's subsidiaries, divisions, and affiliates Controlled, directly 
or indirectly, all of their respective directors, officers, employees, 
Agents, and Representatives, and the respective successors and assigns 
of any of the foregoing, other than any Independent Third Party.
    (BB) ``Service Area Overlap'' means the geographic area in which a 
Competing MVPD's proposed or actual service area overlaps with the 
actual service area of a Time Warner CATV.
    (CC) ``Similarly Situated MVPDs'' means MVPDs with the same or 
similar number of Total Subscribers as the Competing MVPD has 
nationally and the same or similar Penetration Rate(s) as the Competing 
MVPD makes available nationally.
    (DD) ``TCI'' means Tele-Communications, Inc., all of its directors, 
officers, employees, Agents, and Representatives, and also includes (1) 
all of its predecessors, successors, assigns, subsidiaries, and 
divisions, all of their respective directors, officers, employees, 
Agents, and Representatives, and the respective successors and assigns 
of any of the foregoing; and (2) partnerships, joint ventures, and 
affiliates that Tele-Communications, Inc. Controls, directly or 
indirectly. TCI acknowledges that the obligations of subparagraphs 
(C)(6), (8)-(9), (D)(1)-(2) of Paragraph II and of Paragraph III of 
this order extend to actions by Bob Magness and John C. Malone, taken 
in an individual capacity as well as in a capacity as an officer or 
director, and agrees to be liable for such actions.
    (EE) ``TCI Control Shareholders'' means the following Persons, 
individually as well as collectively: Bob Magness, John C. Malone, and 
the Kearns-Tribune Corporation, its Agents and Representatives, and the 
respective successors and assigns of any of the foregoing.
    (FF) ``TCI's and LMC's Interest in Time Warner'' means all the 
Ownership Interest in Time Warner to be acquired by TCI and LMC, 
including the right of first refusal with respect to Time Warner stock 
to be held by R. E. Turner, III, pursuant to the Shareholders Agreement 
dated September 22, 1995 with LMC or any successor agreement.
    (GG) ``TCI's and LMC's Turner-Related Businesses'' means the 
businesses conducted by Southern Satellite Systems, Inc., a subsidiary 
of TCI which is principally in the business of distributing WTBS to 
MVPDs.
    (HH) ``Tier'' means a grouping of Video Programming Services 
offered by an MVPD to subscribers for one package price.
    (II) ``Time Warner'' means Time Warner Inc., all of its directors, 
officers, employees, Agents, and Representatives, and also includes (1) 
all of its predecessors, successors, assigns, subsidiaries, and 
divisions, including, but not limited to, Turner after the Closing 
Date, all of their respective directors, officers, employees, Agents, 
and Representatives, and the respective successors and assigns of any 
of the foregoing; and (2) partnerships, joint ventures, and affiliates 
that Time Warner Inc. Controls, directly or

[[Page 50304]]

indirectly. Time Warner shall, except for the purposes of definitions 
OO and PP, include Time Warner Entertainment Company, L.P., so long as 
it falls within this definition.
    (JJ) ``Time Warner CATV'' means a CATV which is owned or Controlled 
by Time Warner. ``Non-Time Warner CATV'' means a CATV which is not 
owned or Controlled by Time Warner. Obligations in this order 
applicable to Time Warner CATVs shall not survive the disposition of 
Time Warner's Control over them.
    (KK) ``Time Warner National Video Programming Vendor'' means a 
Video Programming Vendor providing a National Video Programming Service 
which is owned or Controlled by Time Warner. Likewise, ``Non-Time 
Warner National Video Programming Vendor'' means a Video Programming 
Vendor providing a National Video Programming Service which is not 
owned or Controlled by Time Warner.
    (LL) ``TNT'' means the Video Programming Service Turner Network 
Television.
    (MM) ``Total Subscribers'' means the total number of subscribers to 
an MVPD other than subscribers only to the Basic Service Tier.
    (NN) ``Turner'' means Turner Broadcasting System, Inc., all of its 
directors, officers, employees, Agents, and Representatives, and also 
includes (1) all of its predecessors, successors (except Time Warner), 
assigns (except Time Warner), subsidiaries, and divisions; and (2) 
partnerships, joint ventures, and affiliates that Turner Broadcasting 
System, Inc., Controls, directly or indirectly.
    (OO) ``Turner Video Programming Services'' means each Video 
Programming Service owned or Controlled by Turner on the Closing Date, 
and includes (1) WTBS, (2) any such Video Programming Service and WTBS 
that is transferred after the Closing Date to another part of Time 
Warner (including TWE), and (3) any Video Programming Service created 
after the Closing Date that Time Warner owns or Controls that is not 
owned or Controlled by TWE, for so long as the Video Programming 
Service remains owned or Controlled by Time Warner.
    (PP) ``Turner-Affiliated Video Programming Services'' means each 
Video Programming Service, whether or not satellite-delivered, that is 
owned, Controlled by, or Affiliated with Turner on the Closing Date, 
and includes (1) WTBS, (2) any such Video Programming Service and WTBS 
that is transferred after the Closing Date to another part of Time 
Warner (including TWE), and (3) any Video Programming Service created 
after the Closing Date that Time Warner owns, Controls or is Affiliated 
with that is not owned, Controlled by, or Affiliated with TWE, for so 
long as the Video Programming Service remains owned, Controlled by, or 
affiliated with Time Warner.
    (QQ) ``TWE'' means Time Warner Entertainment Company, L.P., all of 
its officers, employees, Agents, Representatives, and also includes (1) 
all of its predecessors, successors, assigns, subsidiaries, divisions, 
including, but not limited to, Time Warner Cable, and the respective 
successors and assigns of any of the foregoing, but excluding Turner; 
and (2) partnerships, joint ventures, and affiliates that Time Warner 
Entertainment Company, L.P., Controls, directly or indirectly.
    (RR) ``TWE's Management Committee'' means the Management Committee 
established in Section 8 of the Admission Agreement dated May 16, 1993, 
between TWE and U S West, Inc., and any successor thereof, and includes 
any management committee in any successor agreement that provides for 
membership on the management committee for non-Time Warner individuals.
    (SS) ``TWE Video Programming Services'' means each Video 
Programming Service owned or Controlled by TWE on the Closing Date, and 
includes (1) any such Video Programming Service transferred after the 
Closing Date to another part of Time Warner and (2) any Video 
Programming Service created after the Closing Date that TWE owns or 
Controls, for so long as the Video Programming Service remains owned or 
Controlled by TWE.
    (TT) ``TWE-Affiliated Video Programming Services'' means each Video 
Programming Service, whether or not satellite-delivered, that is owned, 
Controlled by, or Affiliated with TWE, and includes (1) any such Video 
Programming Service transferred after the Closing Date to another part 
of Time Warner and (2) any Video Programming Service created after the 
Closing Date that TWE owns or Controls, or is Affiliated with, for so 
long as the Video Programming Service remains owned, Controlled by, or 
Affiliated with TWE.
    (VV) ``Unaffiliated MVPD'' means an MVPD which is not owned, 
Controlled by, or Affiliated with Time Warner.
    (WW) ``United States'' means the fifty states, the District of 
Columbia, and all territories, dependencies, or possessions of the 
United States of America.
    (XX) ``Video Programming Service'' means a satellite-delivered 
video programming service that is offered, alone or with other 
services, to MVPDs in the United States. It does not include pay-per-
view programming service(s), interactive programming service(s), over-
the-air television broadcasting, or satellite broadcast programming as 
defined in 47 C.F.R. 76.1000(f) as that rule read on July 1, 1996.
    (YY) ``Video Programming Vendor'' means a Person engaged in the 
production, creation, or wholesale distribution to MVPDs of Video 
Programming Services for sale in the United States.
    (ZZ) ``WTBS'' means the television broadcast station popularly 
known as TBS Superstation, and includes any Video Programming Service 
that may be a successor to WTBS, including Converted WTBS.

II

    It is ordered that:
    (A) TCI and LMC shall divest TCI's and LMC's Interest in Time 
Warner and TCI's and LMC's Turner-Related Businesses to The Separate 
Company by:
    (1) combining TCI's and LMC's Interest in Time Warner Inc. and 
TCI's and LMC's Turner-Related Businesses in The Separate Company;
    (2) distributing The Separate Company stock to the holders of 
Liberty Tracking Stock (``Distribution''); and
    (3) using their best efforts to ensure that The Separate Company's 
stock is registered or listed for trading on the Nasdaq Stock Market or 
the New York Stock Exchange or the American Stock Exchange.
    (B) TCI and LMC shall make all regulatory filings, including, but 
not limited to, filings with the Federal Communications Commission and 
the Securities and Exchange Commission that are necessary to accomplish 
the requirements of Paragraph II(A).
    (C) TCI, LMC, and The Separate Company shall ensure that:
    (1) The Separate Company's by-laws obligate The Separate Company to 
be bound by this order and contain provisions ensuring compliance with 
this order;
    (2) The Separate Company's board of directors at the time of the 
Distribution are subject to the prior approval of the Commission;
    (3) The Separate Company shall, within six (6) months of the 
Distribution, call a shareholder's meeting for the purpose of electing 
directors;
    (4) No member of the board of directors of The Separate Company, 
both at the time of the Distribution and pursuant to any election now 
or at any time in the future, shall, at the time of his or her election 
or while serving as

[[Page 50305]]

a director of The Separate Company, be an officer, director, or 
employee of TCI or LMC or shall hold, or have under his or her 
direction or Control, greater than one-tenth of one percent (0.1%) of 
the voting power of TCI and one-tenth of one percent (0.1%) of the 
Ownership Interest in TCI or greater than one-tenth of one percent 
(0.1%) of the voting power of LMC and one-tenth of one percent (0.1%) 
of the Ownership Interest in LMC;
    (5) No officer, director or employee of TCI or LMC shall 
concurrently serve as an officer or employee of The Separate Company. 
Provided further, that TCI or LMC employees who are not TCI Control 
Shareholders or directors or officers of either Tele-Communications, 
Inc. or Liberty Media Corporation may provide to The Separate Company 
services contemplated by the attached Transition Services Agreement;
    (6) The TCI Control Shareholders shall promptly exchange the shares 
of stock received by them in the Distribution for shares of one or more 
classes or series of convertible preferred stock of The Separate 
Company that shall be entitled to vote only on the following issues on 
which a vote of the shareholders of The Separate Company is required: a 
proposed merger; consolidation or stock exchange involving The Separate 
Company; the sale, lease, exchange or other disposition of all or 
substantially all of The Separate Company's assets; the dissolution or 
winding up of The Separate Company; proposed amendments to the 
corporate charter or bylaws of The Separate Company; proposed changes 
in the terms of such classes or series; or any other matters on which 
their vote is required as a matter of law (except that, for such other 
matters, The Separate Company and the TCI Control Shareholders shall 
ensure that the TCI Control Shareholders' votes are apportioned in the 
exact ratio as the votes of the rest of the shareholders);
    (7) No vote on any of the proposals listed in subparagraph (6) 
shall be successful unless a majority of shareholders other than the 
TCI Control Shareholders vote in favor of such proposal;
    (8) After the Distribution, the TCI Control Shareholders shall not 
seek to influence, or attempt to control by proxy or otherwise, any 
other Person's vote of The Separate Company stock;
    (9) After the Distribution, no officer, director or employee of TCI 
or LMC, or any of the TCI Control Shareholders shall communicate, 
directly or indirectly, with any officer, director, or employee of The 
Separate Company. Provided, however, that the TCI Control Shareholders 
may communicate with an officer, director or employee of The Separate 
Company when the subject is one of the issues listed in subparagraph 6 
on which TCI Control Shareholders are permitted to vote, except that, 
when a TCI Control Shareholder seeks to initiate action on a subject 
listed in subparagraph 6 on which the TCI Control Shareholders are 
permitted to vote, the initial proposal for such action shall be made 
in writing. Provided further, that this provision does not apply to 
communications by TCI or LMC employees who are not TCI Control 
Shareholders or directors or officers of either Tele-Communications, 
Inc. or Liberty Media Corporation in the context of providing to The 
Separate Company services contemplated by the attached Transition 
Services Agreement or to communications relating to the possible 
purchase of services from TCI's and LMC's Turner-Related Businesses;
    (10) The Separate Company shall not acquire or hold greater than 
14.99% of the Fully Diluted Equity of Time Warner. Provided, however, 
that, if the TCI Control Shareholders reduce their collective holdings 
in The Separate Company to no more than one-tenth of one percent (0.1%) 
of the voting power of The Separate Company and one-tenth of one 
percent (0.1%) of the Ownership Interest in The Separate Company or 
reduce their collective holdings in TCI and LMC to no more than one-
tenth of one percent (0.1%) of the voting power of TCI and one-tenth of 
one percent (0.1%) of the Ownership Interest in TCI and one-tenth of 
one percent (0.1%) of the voting power of LMC and one-tenth of one 
percent (0.1%) of the Ownership Interest in LMC, then The Separate 
Company shall not be prohibited by this order from increasing its 
holding of Time Warner stock beyond that figure; and
    (11) The Separate Company shall not acquire or hold, directly or 
indirectly, any Ownership Interest in Time Warner that is entitled to 
exercise voting power except (a) a vote of one-one hundredth (\1/100\) 
of a vote per share owned, voting with the outstanding common stock, 
with respect to the election of directors and (b) with respect to 
proposed changes in the charter of Time Warner Inc. or of the 
instrument creating such securities that would (i) adversely change any 
of the terms of such securities or (ii) adversely affect the rights, 
power, or preferences of such securities. Provided, however, that any 
portion of The Separate Company's stock in Time Warner that is sold to 
an Independent Third Party may be converted into voting stock of Time 
Warner. Provided, further, that, if the TCI Control Shareholders reduce 
their collective holdings in The Separate Company to no more than one-
tenth of one percent (0.1%) of the voting power of The Separate Company 
and one-tenth of one percent (0.1%) of the Ownership Interest in The 
Separate Company or reduce their collective holdings in both TCI and 
LMC to no more than one-tenth of one percent (0.1%) of the voting power 
of TCI and one-tenth of one percent (0.1%) of the Ownership Interest in 
TCI and one-tenth of one percent (0.1%) of the voting power of LMC and 
one-tenth of one percent (0.1%) of the Ownership Interest in LMC, The 
Separate Company's Time Warner stock may be converted into voting stock 
of Time Warner.
    (D) TCI and LMC shall use their best efforts to obtain a private 
letter ruling from the Internal Revenue Service to the effect that the 
Distribution will be generally tax-free to both the Liberty Tracking 
Stock holders and to TCI under Section 355 of the Internal Revenue Code 
of 1986, as amended (``IRS Ruling''). Upon receipt of the IRS Ruling, 
TCI and LMC shall have thirty (30) days (excluding time needed to 
comply with the requirements of any federal securities and 
communications laws and regulations, provided that TCI and LMC shall 
use their best efforts to comply with all such laws and regulations) to 
carry out the requirements of Paragraph II (A) and (B). Pending the IRS 
Ruling, or in the event that TCI and LMC are unable to obtain the IRS 
Ruling,
    (1) TCI, LMC, Bob Magness and John C. Malone, collectively or 
individually, shall not acquire or hold, directly or indirectly, an 
Ownership Interest that is more than the lesser of 9.2% of the Fully 
Diluted Equity of Time Warner or 12.4% of the actual issued and 
outstanding common stock of Time Warner, as determined by generally 
accepted accounting principles. Provided, however, that day-to-day 
market price changes that cause any such holding to exceed the latter 
threshold shall not be deemed to cause the parties to be in violation 
of this subparagraph; and
    (2) TCI, LMC and the TCI Control Shareholders shall not acquire or 
hold any Ownership Interest in Time Warner that is entitled to exercise 
voting power except (a) a vote of one-one hundredth (\1/100\) of a vote 
per share owned, voting with the outstanding common stock, with respect 
to the election of directors and (b) with respect to proposed changes 
in the charter of Time Warner Inc. or of the instrument creating such 
securities that would (i) adversely change any of the terms of such

[[Page 50306]]

securities or (ii) adversely affect the rights, power, or preferences 
of such securities. Provided, however, that any portion of TCI's and 
LMC's Interest in Time Warner that is sold to an Independent Third 
Party may be converted into voting stock of Time Warner.
    In the event that TCI and LMC are unable to obtain the IRS Ruling, 
TCI and LMC shall be relieved of the obligations set forth in 
subparagraphs (A), (B) and (C).

III

    It is further ordered that
    After the Distribution, TCI, LMC, Bob Magness and John C. Malone, 
collectively or individually, shall not acquire or hold, directly or 
indirectly, any voting power of, or other Ownership Interest in, Time 
Warner that is more than the lesser of 1% of the Fully Diluted Equity 
of Time Warner or 1.35% of the actual issued and outstanding common 
stock of Time Warner, as determined by generally accepted accounting 
principles (provided, however, that such interest shall not vote except 
as provided in Paragraph II(D)(2)), without the prior approval of the 
Commission. Provided, further, that day-to-day market price changes 
that cause any such holding to exceed the latter threshold shall not be 
deemed to cause the parties to be in violation of this Paragraph.

IV

    It is further ordered that
    (A) For six months after the Closing Date, TCI and Time Warner 
shall not enter into any new Programming Service Agreement that 
requires carriage of any Turner Video Programming Service on any analog 
Tier of TCI's CATVs.
    (B) Any Programming Service Agreement entered into thereafter that 
requires carriage of any Turner Video Programming Service on TCI's 
CATVs on an analog Tier shall be limited in effective duration to five 
(5) years, except that such agreements may give TCI the unilateral 
right(s) to renew such agreements for one or more five-year periods.
    (C) Notwithstanding the foregoing, Time Warner, Turner and TCI may 
enter into, prior to the Closing Date, agreements that require carriage 
on an analog Tier by TCI for no more than five years for each of WTBS 
(with the five year period to commence at the time of WTBS' conversion 
to Converted WTBS) and Headline News, and such agreements may give TCI 
the unilateral right(s) to renew such agreements for one or more five-
year periods.

V

    It is further ordered that
    Time Warner shall not, expressly or impliedly:
    (A) refuse to make available or condition the availability of HBO 
to any MVPD on whether that MVPD or any other MVPD agrees to carry any 
Turner-Affiliated Video Programming Service;
    (B) condition any Carriage Terms for HBO to any MVPD on whether 
that MVPD or any other MVPD agrees to carry any Turner-Affiliated Video 
Programming Service;
    (C) refuse to make available or condition the availability of each 
of CNN, WTBS, or TNT to any MVPD on whether that MVPD or any other MVPD 
agrees to carry any TWE-Affiliated Video Programming Service; or
    (D) condition any Carriage Terms for each of CNN, WTBS, or TNT to 
any MVPD on whether that MVPD or any other MVPD agrees to carry any 
TWE-Affiliated Video Programming Service.

VI

    It is further ordered that
    (A) For subscribers that a Competing MVPD services in the Service 
Area Overlap, Time Warner shall provide, upon request, any Turner Video 
Programming Service to that Competing MVPD at Carriage Terms no less 
favorable, relative to the Carriage Terms then offered by Time Warner 
for that Service to the three MVPDs with the greatest number of 
subscribers, than the Carriage Terms offered by Turner to Similarly 
Situated MVPDs relative to the Carriage Terms offered by Turner to the 
three MVPDs with the greatest number of subscribers for that Service on 
July 30, 1996. For Turner Video Programming Services not in existence 
on July 30, 1996, the pre-Closing Date comparison will be to relative 
Carriage Terms offered with respect to any Turner Video Programming 
Service existing as of July 30, 1996.
    (B) Time Warner shall be in violation of this Paragraph if the 
Carriage Terms it offers to the Competing MVPD for those subscribers 
outside the Service Area Overlap are set at a higher level compared to 
Similarly Situated MVPDs so as to avoid the restrictions set forth in 
subparagraph (A).

VII

    It is further ordered that
    (A) Time Warner shall not require a financial interest in any 
National Video Programming Service as a condition for carriage on one 
or more Time Warner CATVs.
    (B) Time Warner shall not coerce any National Video Programming 
Vendor to provide, or retaliate against such a Vendor for failing to 
provide exclusive rights against any other MVPD as a condition for 
carriage on one or more Time Warner CATVs.
    (C) Time Warner shall not engage in conduct the effect of which is 
to unreasonably restrain the ability of a Non-Time Warner National 
Video Programming Vendor to compete fairly by discriminating in video 
programming distribution on the basis of affiliation or nonaffiliation 
of Vendors in the selection, terms, or conditions for carriage of video 
programming provided by such Vendors.

VIII

    It is further ordered that
    (A) Time Warner shall collect the following information, on a 
quarterly basis:
    (1) for any and all offers made to Time Warner's corporate office 
by a Non-Time Warner National Video Programming Vendor to enter into or 
to modify any Programming Service Agreement for carriage on an Time 
Warner CATV, in that quarter:
    (a) the identity of the National Video Programming Vendor;
    (b) a description of the type of programming;
    (c) any and all Carriage Terms as finally agreed to or, when there 
is no final agreement but the Vendor's initial offer is more than three 
months old, the last offer of each side;
    (d) any and all commitment(s) to a roll-out schedule, if 
applicable, as finally agreed to or, when there is no final agreement 
but the Vendor's initial offer is more than three months old, the last 
offer of each side;
    (e) a copy of any and all Programming Service Agreement(s) as 
finally agreed to or, when there is no final agreement but the Vendor's 
initial offer is more than three months old, the last offer of each 
side; and
    (2) on an annual basis for each National Video Programming Service 
on Time Warner CATVs, the actual carriage rates on Time Warner CATVs 
and
    (a) the average carriage rates on all Non-Time Warner CATVs for 
each National Video Programming Service that has publicly-available 
information from which Penetration Rates can be derived; and
    (b) the carriage rates on each of the fifty (50) largest (in total 
number of subscribers) Non-Time Warner CATVs for each National Video 
Programming Service that has publicly-available information from which 
Penetration Rates can be derived.
    (B) The information collected pursuant to subparagraph (A) shall be

[[Page 50307]]

provided to each member of TWE's Management Committee on the last day 
of March, June, September and December of each year. Provided, however, 
that, in the event TWE's Management Committee ceases to exist, the 
disclosures required in this Paragraph shall be made to any and all 
partners in TWE; or, if there are no partners in TWE, then the 
disclosures required in this Paragraph shall be made to the Audit 
Committee of Time Warner.
    (C) The General Counsel within TWE who is responsible for CATV 
shall annually certify to the Commission that it believes that Time 
Warner is in compliance with Paragraph VII of this order.
    (D) Time Warner shall retain all of the information collected as 
required by subparagraph (A), including information on when and to whom 
such information was communicated as required herein in subparagraph 
(B), for a period of five (5) years.

IX

    It is further ordered that
    (A) By February 1, 1997, Time Warner shall execute a Programming 
Service Agreement with at least one Independent Advertising-Supported 
News and Information National Video Programming Service, unless the 
Commission determines, upon a showing by Time Warner, that none of the 
offers of Carriage Terms are commercially reasonable.
    (B) If all the requirements of either subparagraph (A) or (C) are 
met, Time Warner shall carry an Independent Advertising-Supported News 
and Information Video Programming Service on Time Warner CATVs at 
Penetration Rates no less than the following:
    (1) If the Service is carried on Time Warner CATVs as of July 30, 
1996, Time Warner must make the Service available:
    (a) By July 30, 1997, so that it is available to 30% of the Total 
Subscribers of all Time Warner CATVs at that time; and
    (b) By July 30, 1999, so that it is available to 50% of the Total 
Subscribers of all Time Warner CATVs at that time.
    (2) If the Service is not carried on Time Warner CATVs as of July 
30, 1996, Time Warner must make the Service available:
    (a) By July 30, 1997, so that it is available to 10% of the Total 
Subscribers of all Time Warner CATVs at that time;
    (b) By July 30, 1999, so that it is available to 30% of the Total 
Subscribers of all Time Warner CATVs at that time; and
    (c) By July 30, 2001, so that it is available to 50% of the Total 
Subscribers of all Time Warner CATVs at that time.
    (C) If, for any reason, the Independent Advertising-Supported News 
and Information National Video Programming Service chosen by Time 
Warner ceases operating or is in material breach of its Programming 
Service Agreement with Time Warner at any time before July 30, 2001, 
Time Warner shall, within six months of the date that such Service 
ceased operation or the date of termination of the Agreement because of 
the material breach, enter into a replacement Programming Service 
Agreement with a replacement Independent Advertising-Supported News and 
Information National Video Programming Service so that replacement 
Service is available pursuant to subparagraph (B) within three months 
of the execution of the replacement Programming Service Agreement, 
unless the Commission determines, upon a showing by Time Warner, that 
none of the Carriage Terms offered are commercially reasonable. Such 
replacement Service shall have, six months after the date the first 
Service ceased operation or the date of termination of the first 
Agreement because of the material breach, contractual commitments to 
supply its Service to at least 10 million subscribers on Unaffiliated 
MVPDs, or, together with the contractual commitments it will obtain 
from Time Warner, total contractual commitments to supply its Service 
to 15 million subscribers; if no such Service has such contractual 
commitments, then Time Warner may choose from among the two Services 
with contractual commitments with Unaffiliated MVPDs for the largest 
number of subscribers.

X

    It is further ordered that:
    (A) Within sixty (60) days after the date this order becomes final 
and every sixty (60) days thereafter until respondents have fully 
complied with the provisions of Paragraphs IV(A) and IX(A) of this 
order and, with respect to Paragraph II, until the Distribution, 
respondents shall submit jointly or individually to the Commission a 
verified written report or reports setting forth in detail the manner 
and form in which they intend to comply, are complying, and have 
complied with Paragraphs II, IV(A) and IX(A) of this order.
    (B) One year (1) 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, 
respondents shall file jointly or individually a verified written 
report or reports with the Commission setting forth in detail the 
manner and form in which they have complied and are complying with each 
Paragraph of this order.

XI

    It is further ordered that respondents shall notify the Commission 
at least thirty (30) days prior to any proposed change in respondents 
(other than this Acquisition) 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 corporation 
that may affect compliance obligations arising out of the order.

XII

    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, respondents shall permit 
any duly authorized representative of the Commission:
    1. Access, during regular business hours upon reasonable notice and 
in the presence of counsel for respondents, to inspect and copy all 
books, ledgers, accounts, correspondence, memoranda and other records 
and documents in the possession or under the control of respondents 
relating to any matters contained in this order; and
    2. Upon five days' notice to respondents and without restraint or 
interference from it, to interview officers, directors, or employees of 
respondents, who may have counsel present, regarding such matters.

XIII

    It is further ordered that this order shall terminate ten (10) 
years from the date this order becomes final.

Appendix I

Interim Agreement

    This Interim Agreement is by and between Time Warner Inc. (``Time 
Warner''), a corporation organized, existing, and doing business under 
and by virtue of the law of the State of Delaware, with its office and 
principal place of business at New York, New York; Turner Broadcasting 
System, Inc. (``Turner''), a corporation organized, existing, and doing 
business under and by virtue of the law of the State of Georgia with 
its office and principal place of business at Atlanta, Georgia; Tele-
Communications, Inc. (``TCI''), a corporation organized, existing, and 
doing business under and by virtue of

[[Page 50308]]

the law of the State of Delaware, with its office and principal place 
of business located at Englewood, Colorado; Liberty Media Corp. 
(``LMC''), a corporation organized, existing and doing business under 
and by virtue of the law of the State of Delaware, with its office and 
principal place of business located at Englewood, Colorado; 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. 41 et seq.
    Whereas Time Warner entered into an agreement with Turner for Time 
Warner to acquire the outstanding voting securities of Turner, and TCI 
and LMC proposed to acquire stock in Time Warner (hereinafter ``the 
Acquisition'');
    Whereas the Commission is investigating the Acquisition to 
determine whether it would violate any statute enforced by the 
Commission;
    Whereas TCI and LMC are willing to enter into an Agreement 
Containing Consent Order (hereafter ``Consent Order'') requiring them, 
inter alia, to divest TCI's and LMC's Interest in Time Warner and TCI's 
and LMC's Turner-Related Businesses, by contributing those interests to 
a separate corporation, The Separate Company, the stock of which will 
be distributed to the holders of Liberty Tracking Stock (``the 
Distribution''), but, in order to fulfill paragraph II(D) of that 
Consent Order, TCI and LMC must apply now to receive an Internal 
Revenue Service ruling as to whether the Distribution will be generally 
tax-free to both the Liberty Tracking Stock holders and to TCI under 
Section 355 of the Internal Revenue Code of 1986, as amended (``IRS 
Ruling'');
    Whereas ``TCI's and LMC's Interest in Time Warner`` means all of 
the economic interest in Time Warner to be acquired by TCI and LMC, 
including the right of first refusal with respect to Time Warner stock 
to be held by R. E. Turner, III, pursuant to the Shareholders Agreement 
dated September 22, 1995 with LMC or any successor agreement;
    Whereas ``TCI's and LMC's Turner-Related Businesses'' means the 
businesses conducted by Southern Satellite Systems, Inc., a subsidiary 
of TCI which is principally in the business of distributing WTBS to 
MVPDs;
    Whereas ``Liberty Tracking Stock'' means Tele-Communications, Inc. 
Series A Liberty Media Group Common Stock and Tele-Communications, Inc. 
Series B Liberty Media Group Common Stock;
    Whereas Time Warner, Turner, TCI, and LMC are willing to enter into 
a Consent Order requiring them, inter alia, to forego entering into 
certain new programming service agreements for a period of six months 
from the date that the parties close this Acquisition (``Closing 
Date''), but, in order to comply more fully with that requirement, they 
must cancel now the two agreements that were negotiated as part of this 
Acquisition: namely, (1) the September 15, 1995, program service 
agreement between TCI's subsidiary, Satellite Services, Inc. (``SSI''), 
and Turner and (2) the September 14, 1995, cable carriage agreement 
between SSI and Time Warner for WTBS (hereafter ``Two Programming 
Service Agreements'');
    Whereas if the Commission accepts the attached Consent Order, the 
Commission is required to place the Consent Order on the public record 
for a period of at least sixty (60) days and may subsequently withdraw 
such acceptance pursuant to the provisions of Rule 2.34 of the 
Commission's Rules of Practice and Procedure, 16 C.F.R. 2.34;
    Whereas the Commission is concerned that if the parties do not, 
before this order is made final, apply to the IRS for the IRS Ruling 
and cancel the Two Programming Service Agreements, compliance with the 
operative provisions of the Consent Order might not be possible or 
might produce a less than effective remedy;
    Whereas Time Warner, Turner, TCI, and LMC's entering into this 
Agreement shall in no way be construed as an admission by them that the 
Acquisition is illegal;
    Whereas Time Warner, Turner, TCI, and LMC understand 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, 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 Order, it will not seek further relief 
from Time Warner, Turner, TCI, and LMC with respect to the Acquisition, 
except that the Commission may exercise any and all rights to enforce 
this Agreement and the Consent Order to which this Agreement is annexed 
and made a part thereof, the parties agree as follows:
    1. Within thirty (30) days of the date the Commission accepts the 
attached Consent Order for public comment, TCI and LMC shall apply to 
the IRS for the IRS Ruling.
    2. On or before the Closing Date, Time Warner, Turner and TCI shall 
cancel the Two Programming Service Agreements.
    3. This Agreement shall be binding when approved by the Commission.

Analysis of Proposed Consent Order to Aid Public Comment

I. Introduction
    The Federal Trade Commission has accepted for public comment from 
Time Warner Inc. (``Time Warner''), Turner Broadcasting System, Inc. 
(``Turner''), Tele-Communications, Inc. (``TCI''), and Liberty Media 
Corporation (``LMC'') (collectively ``the proposed respondents'') an 
Agreement Containing Consent Order (``the proposed consent order''). 
The Commission has also entered into an Interim Agreement that requires 
the proposed respondents to take specific action during the public 
comment period.
    The proposed consent order is designed to remedy likely antitrust 
effects arising from Time Warner's acquisition of Turner as well as 
related transactions, including TCI's proposed ownership interest in 
Time Warner and long-term cable television programming service 
agreements between Time Warner and TCI for post-acquisition carriage by 
TCI of Turner programming.
II. Description of the Parties, the Acquisition and Related 
Transactions
    Time Warner is a leading provider of cable networks and a leading 
distributor of cable television. Time Warner Entertainment (``TWE''), a 
partnership in which Time Warner holds the majority interest, owns HBO 
and Cinemax, two premium cable networks. Time Warner and Time Warner 
Cable, a subsidiary of TWE, are collectively the nation's second 
largest distributor of cable television and serve approximately 11.5 
million cable subscribers or approximately 17 percent of U.S. cable 
television households.
    Turner is a leading provider of cable networks. Turner owns the 
following ``marquee'' or ``crown jewel'' cable networks: Cable News 
Network (``CNN''), Turner Network Television (``TNT''), and TBS 
SuperStation (referred to as ``WTBS''). Turner also owns Headline News 
(``HLN''), Cartoon Network, Turner Classic Movies, CNN International 
USA and CNN Financial Network.
    TCI is the nation's largest operator of cable television systems, 
serving approximately 27 percent of all U.S. cable television 
households. LMC, a subsidiary of TCI, is a leading provider of cable 
programming. TCI also owns interests in a large number of cable 
networks.

[[Page 50309]]

    In September 1995, Time Warner and Turner entered into an agreement 
for Time Warner to acquire the approximately 80 percent of the 
outstanding shares in Turner that it does not already own. TCI and LMC 
have an approximately 24 percent existing interest in Turner. By 
trading their interest in Turner for an interest in Time Warner, TCI 
and LMC would acquire approximately a 7.5 percent interest in the fully 
diluted equity of Time Warner as well as the right of first refusal on 
the approximately 7.4 percent interest in Time Warner that R. E. 
Turner, III, chairman of Turner, would receive as a result of this 
acquisition. Although Time Warner has a `poison pill' that would 
prevent TCI from acquiring more than a certain amount of stock without 
triggering adverse consequences, that poison pill would still allow TCI 
to acquire approximately 15 percent of the Fully Diluted Equity, and if 
the poison pill were to be altered or waived, TCI could acquire more 
than 15 percent of the fully diluted equity of Time Warner. Also in 
September 1995, Time Warner entered into two long-term mandatory 
carriage agreements referred to as the Programming Service Agreements 
(PSAs). Under the terms of these PSAs, TCI would be required, on 
virtually all of its cable television systems, to carry CNN, HLN, TNT 
and WTBS for a twenty-year period.
III. The Complaint
    The draft complaint accompanying the proposed consent order and the 
Interim Agreement alleges that the acquisition, along with related 
transactions, would allow Time Warner unilaterally to raise the prices 
of cable television programming and would limit the ability of cable 
television systems that buy such programming to take responsive action 
to avoid such price increases. It would do so, according to the draft 
complaint, both through horizontal combination in the market for cable 
programming (in which Time Warner, after the acquisition, would control 
about 40% of the market) and through higher entry barriers into that 
market as a result of the vertical integration (by merger and contract) 
between Turner's programming interests and Time Warner's and TCI's 
cable distribution interests. The complaint alleges that TCI and Time 
Warner, respectively, operate the first and second largest cable 
television systems in the United States, reaching nearly half of all 
cable households; that Time Warner would gain the power to raise prices 
on its own and on Turner's programming unilaterally; that TCI's 
ownership interest in Time Warner and concurrent long term contractual 
obligations to carry Turner programming would undermine TCI's incentive 
to sign up better or less expensive non-Time Warner programming, 
preventing rivals to the combined Time Warner and Turner from achieving 
sufficient distribution to realize economies of scale and thereby to 
erode Time Warner's market power; that barriers to entry into 
programming and into downstream retail distribution markets would be 
raised; and that substantial increases in wholesale programming costs 
for both cable systems and alternative service providers--including 
direct broadcast satellite service and other forms of non-cable 
distribution--would lead to higher service prices and fewer 
entertainment and information sources for consumers.
    The Commission has reason to believe that the acquisition and 
related transactions, if successful, may have anticompetitive effects 
and be in violation of Section 7 of the Clayton Act and Section 5 of 
the Federal Trade Commission Act.
IV. Terms of the Proposed Consent Order
    The proposed consent order would resolve the alleged antitrust 
concerns by breaking down the entry barriers that would otherwise be 
erected by the transaction. It would do so by: (1) Requiring TCI to 
divest all of its ownership interests in Time Warner or, in the 
alternative, capping TCI's ownership of Time Warner stock and denying 
TCI and its controlling shareholders the right to vote any such Time 
Warner stock; (2) canceling the PSAs; (3) prohibiting Time Warner from 
bundling Time Warner's HBO with any Turner networks and prohibiting the 
bundling of Turner's CNN, TNT, and WTBS with any Time Warner networks; 
(4) prohibiting Time Warner from discriminating against rival 
Multichannel Video Programming Distributors (``MVPDs'') in the 
provision of Turner programming; (5) prohibiting Time Warner from 
foreclosing rival programmers from access to Time Warner's 
distribution; and (6) requiring Time Warner to carry a 24-hour all news 
channel that would compete with Turner's CNN. The following sections 
discuss the primary provisions of the proposed consent order in more 
detail.
    A. TCI Will Divest Its Interest in Time Warner or Accept a Capped 
Nonvoting Interest. The divestiture provision of the proposed consent 
order (Paragraph II) requires TCI and LMC to divest their collective 
ownership of approximately 7.5 percent of the fully diluted shares in 
Time Warner - the amount they will obtain from Time Warner in exchange 
for their 24 percent ownership interest in Turner--to a different 
company (``The Separate Company'') that will be spun off by TCI and 
LMC. The stock of The Separate Company would be distributed to all of 
the shareholders of TCI's LMC subsidiary. Because that stock would be 
freely tradeable on an exchange, the ownership of The Separate Company 
would diverge over time from the ownership of the Liberty Media 
Tracking Stock (and would, at the outset, be different from the 
ownership of TCI). TCI would therefore breach its fiduciary duty to its 
shareholders if it forestalled programming entry that could benefit TCI 
as a cable system operator in order to benefit Time Warner's interests 
as a programmer.
    In addition to the divestiture provisions ensuring that TCI will 
have no incentive to forgo its own best interests in order to favor 
those of Time Warner, the proposed consent order contains provisions to 
ensure that the transaction will not leave TCI or its management in a 
position to influence Time Warner to alter its own conduct in order to 
benefit TCI's interests. Absent restrictions in the consent order, the 
TCI Control Shareholders (John C. Malone, Bob Magness, and Kearns-
Tribune Corporation) would have a controlling share of the voting power 
of The Separate Company. To prevent those shareholders from having 
significant influence over Time Warner's conduct, the proposed consent 
order contains the following provisions that will wall off the TCI 
Control Shareholders from influencing the officers, directors, and 
employees of The Separate Company and its day-to-day operations:
     The Commission must approve the initial board of directors 
of The Separate Company;
     Within six months of the distribution of The Separate 
Company's stock, the stockholders (excluding the TCI Control 
Shareholders) of The Separate Company must elect new directors;
     Members of the board of directors of The Separate Company 
are prohibited from serving as officers, directors, or employees of TCI 
or LMC, or holding or controlling greater than one-tenth of one percent 
(0.1%) of the ownership in or voting power of TCI or LMC;
     Officers, directors or employees of TCI or LMC are 
prohibited from concurrently serving as officers, directors, or 
employees of The Separate Company, with a narrow exception so that TCI 
or LMC employees may provide limited operational services to The 
Separate Company;

[[Page 50310]]

     The TCI Control Shareholders are prohibited from voting 
(other than a de minimis voting share necessary for tax purposes) any 
stock of The Separate Company to elect the board of directors or on 
other matters. There are limited exceptions for voting on major issues 
such as a proposed merger or sale of The Separate Company, the 
disposition of all or substantially all of The Separate Company's 
assets, the dissolution of The Separate Company, or proposed changes in 
the corporate charter or bylaw of The Separate Company. However, no 
vote on any of these excepted issues would be successful unless a 
majority of shareholders other than the TCI Control Shareholders vote 
in favor of such proposal;
     The TCI Control Shareholders are prohibited from seeking 
to influence, or attempting to control by proxy or otherwise, any other 
person's vote of The Separate Company's stock;
     Officers, directors, and employees of TCI or LMC, or any 
of the TCI Control Shareholders are prohibited from communicating with 
any officer, director, or employee of The Separate Company except on 
the limited matters on which they are permitted to vote. Further 
restrictions require that, in order for a TCI Control Shareholder to 
seek to initiate action on an issue on which they are entitled to vote, 
they must do so in writing;
     The Separate Company is prohibited from acquiring more 
than 14.99% of the fully diluted equity shares of Time Warner, with 
exceptions in the event that the TCI Control Shareholders sell their 
stock in The Separate Company or in TCI and LMC; and
     The Separate Company is prohibited from voting its shares 
(other than a de minimis voting share necessary for tax purposes) in 
Time Warner, except that such shares can become voting if The Separate 
Company sells them to an Independent Third Party or in the event that 
the TCI Control Shareholders sell their stock in The Separate Company 
or in TCI and LMC.
    The Commission has reason to believe that the divestiture of TCI's 
and LMC's interest in Time Warner to The Separate Company is in the 
public interest. The required divestiture of the Time Warner stock by 
TCI and LMC and the ancillary restrictions outlined above are 
beneficial to consumers because (1) they would restore TCI's otherwise 
diminished incentives to carry cable programming that would compete 
with Time Warner's cable programming; and (2) they would eliminate 
TCI's and LMC's ability to influence the operations of Time Warner.
    The proposed consent order also requires TCI and LMC to apply to 
the Internal Revenue Service (``IRS'') for a ruling that the 
divestiture of TCI's and LMC's interest in Time Warner to The Separate 
Company would be generally tax-free. Upon receipt of the IRS Ruling, 
TCI and LMC has thirty days to transfer its Time Warner stock to The 
Separate Company. After TCI and LMC divest this interest in Time Warner 
to The Separate Company, TCI, LMC, Magness and Malone are prohibited 
from acquiring any stock in Time Warner, above a collective de minimis 
nonvoting amount, without the prior approval of the Commission.
    Pending the ruling by the IRS, or in the event that the TCI and LMC 
are unable to obtain such an IRS ruling, (1) TCI, LMC, John C. Malone 
and Bob Magness, collectively and individually, are capped at level no 
more than the lesser of 9.2 percent of the fully diluted equity of Time 
Warner or 12.4% of the actual issued and outstanding common stock of 
Time Warner, as determined by generally accepted accounting principles; 
and (2) TCI, LMC and the TCI Control Shareholders' interest in Time 
Warner must be nonvoting (other than a de minimis voting share 
necessary for tax purposes), unless the interest is sold to an 
Independent Third Party. This nonvoting cap is designed to restore 
TCI's otherwise diminished incentives to carry cable programming that 
would compete with Time Warner's cable programming as well as to 
prevent TCI from seeking to influence Time Warner's competitive 
behavior.
    B. TCI's Long-Term Carriage Agreement With Turner Is Canceled. As 
part of the transaction, Time Warner and TCI entered into PSAs that 
required TCI to carry Turner programming for the next twenty years, at 
a price set at the lesser of 85% of the industry average price or the 
lowest price given to any distributor. According to the complaint, the 
PSAs would tend to prevent Time Warner's rivals from achieving 
sufficient distribution to threaten Time Warner's market power by 
locking up scarce TCI channel space for an extended period of time. By 
negotiating this arrangement as part of the Turner acquisition, and not 
at arms length, Time Warner was able to compensate TCI for helping to 
achieve this result. Under the Interim Agreement, TCI and Time Warner 
are obligated to cancel the PSAs. Following cancellation of the PSAs, 
there would be a six month ``cooling off'' period during which Time 
Warner and TCI could not enter into new mandatory carriage requirements 
on an analog tier for Turner programming.1 This cooling off period 
will ensure that such agreements are negotiated at arm's length. 
Thereafter, the parties cannot enter into any agreement that would 
secure Time Warner guaranteed mandatory carriage rights on TCI analog 
channel capacity for more than five-year periods. This restriction 
would not prevent TCI from having renewal options to extend for 
additional five-year periods, but would prohibit Time Warner from 
obligating TCI to carry a Time Warner channel for more than five years. 
The only exceptions to the cooling off period for Time Warner/TCI 
carriage agreements would relate to WTBS and HLN on which there are no 
existing contracts. Any such carriage agreements for those services 
would also be limited to five years.
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    \1\Analog technology is currently used for cable programming 
distribution and places significant limitations on the addition of 
new channels. Digital technology, which is still in its infancy and 
not currently a competitive factor in video distribution, has the 
potential to expand capacity sixfold, thereby substantially 
alleviating capacity constraints on the digital tier.
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    In requiring the cancellation of the PSAs and prescribing shorter 
renewal option periods, the Commission has not concluded that any such 
long-term programming agreements are anticompetitive in and of 
themselves or would violate the antitrust laws standing alone. Rather, 
the Commission has concluded that the PSAs are anticompetitive in the 
context of the entire transaction arising from the merger and ownership 
of Time Warner stock by TCI and in light of those two companies' 
significant market shares in both programming and cable service. The 
divestiture and rescission requirements would therefore sever 
complementary ownership and long-term contractual links between TCI and 
Time Warner. This would restore incentives for TCI, a cable operator 
serving nearly a third of the nation's cable households, to place non-
Time Warner programming on its cable systems, in effect disciplining 
any market power resulting from a combination of Time Warner and Turner 
programming.
    C. Time Warner is Barred From Bundling HBO with any Turner 
Programming and CNN, TNT and WTBS with Time Warner Programming. 
Paragraph V bars Time Warner from bundling HBO with Turner channels--
that is, making HBO available, or available on more favorable terms, 
only if the purchaser agrees to take the Turner channels. Time Warner 
is also barred from bundling CNN, TNT, or

[[Page 50311]]

WTBS with Time Warner channels. This provision applies to new 
programming as well as existing programming. This provision is designed 
to address concerns that the easiest way the combined firm could exert 
substantially greater negotiating leverage over cable operators is by 
combining all or some of such ``marquee'' services and offering them as 
a package or offering them along with unwanted programming. Because the 
focus of the provision is on seeking to prevent the additional market 
power arising from this combination of programming, this provision does 
not prevent bundling engaged in pre-merger--that is, Turner channels 
with Turner channels and pre- merger Time Warner channels with Time 
Warner channels. Rather, it is narrowly targeted at Time Warner's use 
of its newly-acquired stable of ``marquee'' channels to raise prices by 
bundling.
    The Commission emphasizes that, in general, bundling often benefits 
customers by giving firms an incentive to increase output and serve 
buyers who would otherwise not obtain the product or service. The 
Commission, however, believes that, in the context of this transaction, 
the limited bar on bundling is a prudent measure that will prevent 
actions by Time Warner that are likely to harm competition.
    D. Time Warner is Barred from Price Discrimination Against Rival 
MVPDs. Paragraph VI is designed to prevent Time Warner from using its 
larger stable of programming interests to disadvantage new entrants 
into the distribution of cable programs such as Direct Broadcast 
Services, wireless systems, and systems created by telephone companies. 
The complaint alleges that, as a programmer that does not own its own 
distribution, Turner pre- merger had no incentive to and did not 
generally charge significantly higher prices to new MVPD entrants 
compared to the prices offered to established MVPDs. Under the terms of 
Paragraph VI, the preacquisition range of pricing offered by Turner is 
used as a benchmark to prevent Time Warner from discriminating against 
the rival distributors of programming in its service areas, and Time 
Warner may not increase the range of pricing on Turner programming 
services between established MVPDs and new entrants any more than 
Turner had pre-merger. Because Time Warner's incentive to discriminate 
against MVPDs stems from an incentive to protect its own cable company 
from those in or entering its downstream distribution areas, this 
provision only covers competitors in Time Warner's distribution areas. 
Because the price charged by Time Warner as a programmer to Time 
Warner's cable systems is, to some extent, an internal transfer price, 
the proposed consent order uses as a benchmark the price charged to the 
three largest cable system operators nationwide rather than the price 
charged to Time Warner. This provision, therefore, compares the price 
charged to Time Warner's competitors in the overlap areas with the 
price charged to the three largest cable system operators, and asks 
whether the spread between the two is any greater than the pre-merger 
spread between a similarly situated MVPD and the three largest cable 
system operators. It thus focuses on the greater possibility for price 
discrimination against new MVPD entrants arising directly as a result 
of this merger. It both ensures that Time Warner's additional market 
power as a result of this merger does not result in higher prices to 
new MVPD entrants, while it narrowly protects only those new entrants 
that Time Warner may have an incentive to harm.
    E. Conduct and Reporting Requirements Designed to Ensure that Time 
Warner Cable Does Not Discriminatorily Deny Carriage to Unaffiliated 
Programmers. The order has two main provisions designed to address 
concerns that this combination increases Time Warner's incentives to 
disadvantage unaffiliated programmers in making carriage decisions for 
its own cable company. Paragraph VII, drawn from statutory provisions 
in the 1992 Cable Act, is designed to prevent Time Warner from 
discriminating in its carriage decisions so as to exclude or 
substantially impair the ability of an unaffiliated national video 
programmer to enter into or to compete in the video programming market. 
The Commission views these provisions as working in tandem with the 
collection and reporting requirements contained in Paragraph VIII. 
Under that paragraph, Time Warner is required to collect and maintain 
information about programming offers received and the disposition of 
those offers as well as information comparing Time Warner cable 
systems' carriage rates to carriage rates on other MVPDs for national 
video programming services. Such information would be reported on a 
quarterly basis to the management committee of TWE. TWE's management 
committee includes representatives of U S West since U S West is a 
minority partner in TWE. TWE owns or operates all of Time Warner's 
cable systems. Because U S West's incentives would be to maximize 
return to TWE's cable systems rather than to Time Warner's wholly owned 
programming interests, it would have strong incentives to alert the 
Commission to actions by Time Warner that favored Time Warner's wholly 
owned programming interests at the expense of Time Warner cable 
systems' profitability. Such information would also be available for 
inspection independently by the Commission. Furthermore, Time Warner's 
General Counsel responsible for cable systems is required to certify 
annually to the Commission its compliance with the substantive 
prohibitions in Paragraph VII.
    F. Time Warner Cable Agrees to Carry CNN Rival. Of the types of 
programming in which the post-merger Time Warner will have a leading 
position, the one with the fewest existing close substitutes is the 
all-news segment, in which CNN is by far the most significant player. 
There are actual or potential entrants that could in the future erode 
CNN's market power, but their ability to do so is partly dependent on 
their ability to secure widespread distribution. Without access to Time 
Warner's extensive cable holdings, such new entry may not be 
successful. Time Warner's acquisition of CNN gives it both the ability 
and incentive to make entry of competing news services more difficult, 
by denying them access to its extensive distribution system. To remedy 
this potential anticompetitive effect, Time Warner would be required to 
place a news channel on certain of its cable systems under Paragraph IX 
of the proposed agreement. The rate of roll-out and the final 
penetration rate is set at levels so as not to interfere with Time 
Warner's carriage of other programming. It is set at such a level that 
Time Warner may continue carrying any channel that it is now carrying, 
may add any channel that it is contractually committed to carry in the 
future, and may continue any plans it has to carry unaffiliated 
programming in the future. It limits only Time Warner's ability to give 
effect to its incentive to deny access even to a news channel that does 
not interfere with such commitments or plans. Time Warner has committed 
to achieve penetration of 50% of total basic subscribers by July 30, 
1999, if it seeks to fulfill this provision by increasing carriage for 
an existing channel, or to achieve penetration of 50% of total basic 
subscribers by July 30, 2001, if it seeks to fulfill this provision by 
carrying a channel not currently carried by Time Warner. This shorter 
period is possible in the former case because, to the extent that Time 
Warner is already committed to carry the channel on a portion of Time 
Warner's systems, less additional

[[Page 50312]]

capacity would need to be found in order to achieve the required 
penetration. On the other hand, the longer period if a new news service 
is selected assures that an existing news service or other service need 
not be displaced to make room for the new service.
    This provision was crafted so as to give Time Warner flexibility in 
choosing a new news channel, without undermining the Commission's 
competitive concern that the chosen service have the opportunity to 
become a strong competitor to CNN. To ensure that the competing news 
channel is competitively significant, the order obligates Time Warner 
to choose a news service that will have contractual commitments with 
unaffiliated cable operators to reach 10 million subscribers by 
February 1, 1997. Together with Time Warner's commitments required by 
the proposed order, such a service would have commitments for a total 
of approximately 15 million subscribers. In the alternative, Time 
Warner could take a service with a smaller unaffiliated subscriber 
base, if it places the service on more of its own systems in order to 
assure that the service's total subscribers would reach 15 million. In 
order to attract advertisers and become a competitive force, a news 
service must have a critical mass of subscribers. The thresholds 
contained in this order give Time Warner flexibility while ensuring 
that the service selected has enough subscribers to have a credible 
opportunity to become an effective competitor. The February 1, 1997, 
date was selected so as to give competitive news services an 
opportunity to achieve the required number of subscribers.
    Accordingly, this provision should not interfere with Time Warner's 
plans to carry programming of its choosing or unduly involve the 
Commission in Time Warner's choice of a new service. It is analogous to 
divestiture of one channel on some cable systems and is thus far less 
burdensome to Time Warner than the typical antitrust remedy which would 
require that Time Warner divest some or all of cable systems in their 
entirety. The Commission, however, recognizes that this provision is 
unusual and invites public comment on the appropriateness of such a 
requirement.
V. Opportunity for Public Comment
    The proposed consent order has been placed on the public record for 
60 days for reception of comments from interested persons. Comments 
received during this period will become part of the public record. 
After 60 days, the Commission will again review the agreement and 
comments received, and will decide whether it should withdraw from the 
agreement or make final the order contained in the agreement.
    By accepting the consent order subject to final approval, the 
Commission anticipates that the competitive problems alleged in the 
complaint will be resolved. The purpose of this analysis is to invite 
and facilitate public comment concerning the consent order. It is not 
intended to constitute an official interpretation of the agreement and 
proposed order or in any way to modify their terms.
Benjamin I. Berman,
Acting Secretary.

Separate Statement of Chairman Pitofsky, and Commissioners Steiger and 
Varney In the Matter of Time Warner Inc., File No. 961-0004

    The proposed merger and related transactions among Time Warner, 
Turner, and TCI involve three of the largest firms in cable programming 
and delivery--firms that are actual or potential competitors in many 
aspects of their businesses. The transaction would have merged the 
first and third largest cable programmers (Time Warner and Turner). At 
the same time it would have further aligned the interests of TCI and 
Time Warner, the two largest cable distributors. Finally, the 
transaction as proposed would have greatly increased the level of 
vertical integration in an industry in which the threat of foreclosure 
is both real and substantial.1 While the transaction posed 
complicated and close questions of antitrust enforcement, the 
conclusion of the dissenters that there was no competitive problem at 
all is difficult to understand.
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    \1\ Both Congress and the regulators have identified problems 
with the effects of vertical foreclosure in this industry. See 
generally James W. Olson and Lawrence J. Spiwak, Can Short-term 
Limits on Strategic Vertical Restraints Improve Long-term Cable 
industry Market Performance?, 13 Cardozo Arts & Entertainment Law 
Journal 283 (1995). Enforcement action in this case is wholly 
consistent with the goals of Congress in enacting the 1992 Cable 
Act: providing greater access to programming and promoting 
competition in local cable markets.
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    Many of the concerns raised in the dissenting Commissioners 
statements are carefully addressed in the analysis to aid public 
comment. We write to clarify our views on certain specific issues 
raised in the dissents.
    Product market. The dissenting Commissioners suggest that the 
product market alleged, ``the sale of Cable Television Programming 
Services to MVPDs (Multichannel Video Programming Distributors),'' 
cannot be sustained. The facts suggest otherwise. Substantial evidence, 
confirmed in the parties' documents and testimony, as well as documents 
and sworn statements from third-parties, indicated the existence of an 
all cable television market. Indeed, there was significant evidence of 
competitive interaction in terms of carriage, promotions and marketing 
support, subscriber fees, and channel position between different 
segments of cable programming, including basic and premium channel 
programming. Cable operators look to all types of cable programming to 
determine the proper mix of diverse content and format to attract a 
wide range of subscribers.
    Although a market that includes both CNN and HBO may appear 
somewhat unusual on its face, the Commission was presented here with 
substantial evidence that MVPDs require access to certain ``marquee'' 
channels, such as HBO and CNN, to retain existing subscribers or expand 
their subscriber base. Moreover, we can not concur that evidence in the 
record supports Commissioner Azcuenaga's proposed market definition, 
which would segregate offerings into basic and premium cable 
programming markets.
    Entry. Although we agree that entry is an important factor, we 
cannot concur with Commissioner Azcuenaga's overly generous view of 
entry conditions in this market. While new program channels have 
entered in the past few years, these channels have not become 
competitively significant. None of the channels that has entered since 
1991 has acquired more than a 1% market share.
    Moreover, the anticompetitive effects of this acquisition would 
have resulted from one firm's control of several marquee channels. In 
that aspect of the market, entry has proven slow and costly. The 
potential for new entry in basic services cannot guarantee against 
competitive harm. To state the matter simply, the launch of a new 
``Billiards Channel,'' ``Ballet Channel,'' or the like will barely make 
a ripple on the shores of the marquee channels through which Time 
Warner can exercise market power.
    Technology. Commissioner Azcuenaga also seems to suggest that the 
Commission has failed to recognize the impact of significant 
technological changes in the market, such as the emergence of new 
delivery systems such as direct broadcast satellite networks 
(``DBS'').2 We agree that these alternative technologies may 
someday become a significant competitive force

[[Page 50313]]

in the market. Indeed, that prospect is one of the reasons the 
Commission has acted to prevent Time Warner from being able to 
disadvantage these competitors by discriminating in access to 
programming.
---------------------------------------------------------------------------

    \2\ DBS providers are included as participants in the relevant 
product market.
---------------------------------------------------------------------------

    But to suggest that these technologies one day may become more 
widespread does not mean they currently are, or in the near future will 
be, important enough to defeat anticompetitive conduct. Alternative 
technologies such as DBS have only a small foothold in the market, 
perhaps a 3% share of total subscribers. Moreover, DBS is more costly 
and lacks the carriage of local stations. It seems rather unlikely that 
the emerging DBS technology is sufficient to prevent the competitive 
harm that would have arisen from this transaction.
    Horizontal competitive effects. Although Commissioner Starek 
presents a lengthy argument on why we need not worry about the 
horizontal effects of the acquisition, the record developed in this 
investigation strongly suggests anticompetitive effects would have 
resulted without remedial action. This merger would combine the first 
and third largest providers of cable programming, resulting in a merged 
firm controlling over 40% of the market, and several of the key marquee 
channels including HBO and CNN. The horizontal concerns are 
strengthened by the fact that Time Warner and TCI are the two largest 
MVPDs in the country. The Commission staff received an unprecedented 
level of concern from participants in all segments of the market about 
the potential anticompetitive effects of this merger.
    One of the most frequent concerns expressed was that the merger 
heightens the already formidable entry barriers into programming by 
further aligning the incentives of both Time Warner and TCI to deprive 
entrants of sufficient distribution outlets to achieve the necessary 
economies of scale. The proposed order addresses the impact on entry 
barriers as follows. First, the prohibition on bundling would deter 
Time Warner from using the practice to compel MVPDs to accept unwanted 
channels which would further limit available channel capacity to non-
Time Warner programmers. Second, the conduct and reporting requirements 
in paragraphs VII and VIII provide a mechanism for the Commission to 
become aware of situations where Time Warner discriminates in handling 
carriage requests from programming rivals.
    Third, the proposed order reduces entry barriers by eliminating the 
programming service agreements (PSAs), which would have required TCI to 
carry certain Turner networks until 2015, at a price set at the lower 
of 85% of the industry average price or the lowest price given to any 
other MVPD. The PSAs would have reduced the ability and incentives of 
TCI to handle programming from Time Warner's rivals. Channel space on 
cable systems is scarce. If the PSAs effectively locked up significant 
channel space on TCI, the ability of rival programmers to enter would 
have been harmed. This effect would have been exacerbated by the 
unusually long duration of the agreement and the fact that TCI would 
have received a 15% discount over the most favorable price given to any 
other MVPD. Eliminating the twenty-year PSAs and restricting the 
duration of future contracts between TCI and Time Warner would restore 
TCI's opportunities and incentives to evaluate and carry non-Time 
Warner programming.
    We believe that this remedy carefully restricts potential 
anticompetitive practices, arising from this acquisition, that would 
have heightened entry barriers.
    Vertical foreclosure. The complaint alleges that post-acquisition 
Time Warner and TCI would have the power to: (1) Foreclose unaffiliated 
programming from their cable systems to protect their programming 
assets; and (2) disadvantage competing MVPDs, by engaging in price 
discrimination. Commissioner Azcuenaga contends that Time Warner and 
TCI lack the incentives and the ability to engage in either type of 
foreclosure. We disagree.
    First, it is important to recognize the degree of vertical 
integration involved. Post-merger Time Warner alone would control more 
than 40% of the programming assets (as measured by subscriber revenue 
obtained by MVPDs). Time Warner and TCI, the nation's two largest 
MVPDs, control access to about 44% of all cable subscribers. The case 
law have found that these levels of concentration can be 
problematic.3
---------------------------------------------------------------------------

    \3\ See Ash Grove Cement Co. v. FTC, 577 F2d 1368 (9th Cir. 
1978); Mississippi River Corp. v. FTC, 454 F.2d 1083 (8th Cri. 
1972); United States Steel Corp. v. FTC, 426 F.2d 592 (6th Cir. 
1970); see generally Herbert Hovenkamp, Federal Antitrust Policy 
Sec. 9.4 (1994).
---------------------------------------------------------------------------

    Second, the Commission received evidence that these foreclosure 
threats were real and substantial. There was clearly reason to believe 
that this acquisition would increase the incentives to engage in this 
foreclosure without remedial action. For example, the launch of a new 
channel that could achieve marquee status would be almost impossible 
without distribution on either the Time Warner or TCI cable systems. 
Because of the economies of scale involved, the successful launch of 
any significant new channel usually requires distribution on MVPDs that 
cover 40-60% of subscribers.
    Commissioner Starek suggests that we need not worry about 
foreclosure because there are sufficient number of unaffiliated 
programmers and MVPDs so that each can survive by entering into 
contracts. With all due respect, this view ignores the competitive 
realities of the marketplace. TCI and Time Warner are the two largest 
MVPDs in the U.S. with market shares of 27% and 17% respectively.4 
Carriage on one or both systems is critical for new programming to 
achieve competitive viability. Attempting to replicate the coverage of 
these systems by lacing together agreements with the large number of 
much smaller MVPDs is costly and time consuming.5 The Commission 
was presented with evidence that denial of coverage on the Time Warner 
and TCI systems could further delay entry of potential marquee channels 
for several years.
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    \4\ They are substantially larger than the next largest MVPD, 
Continental, which has an approximately 6% market share.
    \5\ See U.S. Department of Justice Horizontal Merger Guidelines, 
para. 13,103 Trade Cas. (CCH) at 20,565-66, Secs. 4.2 4,21(June 14, 
1984), incorporation in U.S. Department of Justice and Federal Trade 
Commission Horizontal Merger Guidelines, para. 13,104 Trade Cas. 
(CCH) (Apirl 7, 1992).
---------------------------------------------------------------------------

    TCI ownership of Time Warner. Commissioner Azcuenaga suggests that 
TCI's potential acquisition of a 15% interest in Time Warner, with the 
prospect of acquiring up to 25% without further antitrust review, does 
not pose any competitive problem. We disagree. Such a substantial 
ownership interest, especially in a highly concentrated market with 
substantial vertically interdependent relationships and high entry 
barriers, poses significant competitive concerns.6 In particular, 
the interest would give TCI greater incentives to disadvantage 
programmer competitors of Time Warner; similarly it would increase Time 
Warner's incentives to disadvantage MVPDs that compete with TCI. The 
Commission's remedy would eliminate these incentives to act 
anticompetitively by making TCI's interest truly passive.
---------------------------------------------------------------------------

    \6\ See United States v. dupont de Nemours & Co., 353 U.S. 586 
(1957); F&M Schaefer Corp v. C. Schmidt & Sons, Inc., 597 F.2d 814, 
818-19 (2d Cir. 1979); Gulf & Western Indus. v. Great Atlantic & 
Pacific Tea Co., 476 F.2d 687 (2d Cir. 1973).
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    Efficiencies. Finally, Commissioner Azcuenaga seems to suggest that 
the acquisition may result in certain efficiencies in terms of ``more 
and better programming options'' and ``reduced

[[Page 50314]]

transactions costs.'' There was little or no evidence presented to the 
Commission to suggest that these efficiencies were likely to occur.

Dissenting Statement of Commissioner Mary L. Azcuenaga in Time Warner 
Inc., File No. 961-0004

    The Commission today accepts for public comment a proposed consent 
agreement to settle allegations that the proposed acquisition by Time 
Warner Inc. (Time Warner) of Turner Broadcasting System, Inc. (Turner), 
and related agreements with Tele-Communications, Inc. (TCI),1 
would be unlawful. Alleging that this transaction violates the law is 
possible only by abandoning the rigor of the Commission's usual 
analysis under Section 7 of the Clayton Act. To reach this result, the 
majority adopts a highly questionable market definition, ignores any 
consideration of efficiencies and blindly assumes difficulty of entry 
in the antitrust sense in the face of overwhelming evidence to the 
contrary. The decision of the majority also departs from more general 
principles of antitrust law by favoring competitors over competition 
and contrived theory over facts.
---------------------------------------------------------------------------

    \1\ Liberty Media Corporation, a wholly-owned subsidiary of TCI, 
also is named in the complaint and order. For simplicity, references 
in this statement to TCI include Liberty.
---------------------------------------------------------------------------

    The usual analysis of competitive effects under the law, unlike the 
apparent analysis of the majority, would take full account of the 
swirling forces of innovation and technological advances in this 
dynamic industry. Unfortunately, the complaint and the underlying 
theories on which the proposed order is based do not begin to satisfy 
the rigorous standard for merger analysis that this agency has applied 
for years. Instead, the majority employs a looser standard for 
liability and a regulatory order that threatens the likely efficiencies 
from the transaction. Having found no reason to relax our standards of 
analysis for this case, I cannot agree that the order is warranted.
Product Market
    We focus in merger analysis on the likelihood that the transaction 
will create or enhance the ability to exercise market power, i.e., 
raise prices. The first step usually is to examine whether the merging 
firms sell products that are substitutes for one another to see if 
there is a horizontal competitive overlap. This is important in a case 
based on a theory of unilateral anticompetitive effects, as this one 
is, because according to the merger guidelines, the theory depends on 
the factual assumption that the products of the merging firms are the 
first and second choices for consumers.2
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    \2\ 1992 Horizontal Merger Guidelines para. 2.2. The theory is 
that when the post-merger firm raises the price on product A or on 
products A and B, sales lost due to the price increase on the first-
choice product (A) will be diverted to the second-choice product 
(B). The price increase is unlikely to be profitable unless a 
significant share of consumers regard the products of the merged 
firm as their first and second choices.
---------------------------------------------------------------------------

    In this case, it could be argued that from the perspective of cable 
system operators and other multichannel video program distributors 
(MVPDs), who are purchasers of programming services, all network 
services are substitutes. This is the horizontal competitive overlap 
that is alleged in the complaint.3
---------------------------------------------------------------------------

    \3\ Complaint para. 24.
---------------------------------------------------------------------------

    One problem with the alleged all-programming market is that basic 
services (such as Turner's CNN) and premium services (such as Time 
Warner's HBO) are not substitutes along the usual dimensions of 
competition. Most significantly, they do not compete on price. CNN is 
sold to MVPDs for a fee per subscriber that is on average less than 
one-tenth of the average price for HBO, and it is resold as part of a 
package of basic services for an inclusive fee. HBO is sold at 
wholesale for more than ten times as much; it is resold to consumers on 
an a la carte basis or in a package with other premium services, and a 
subscription to basic service usually is a prerequisite. It is highly 
unlikely that a cable operator, to avoid a price increase, would drop a 
basic channel and replace it with a significantly more expensive 
premium channel. Furthermore, cable system operators tell us that when 
the price for basic cable services increases, consumers drop pay 
services, suggesting that at least at the retail level these goods are 
complementary, rather than substitutes for one another.
    Another possible argument is that CNN and HBO should be in the same 
product market because, from the cable operator's perspective, each is 
``necessary to attract and retain a significant percentage of their 
subscribers.'' 4 If CNN and HBO were substitutes in this sense, we 
would expect to see cable system operators playing them against one 
another to win price concessions in negotiations with programming 
sellers, but there is no evidence that they have been used this way, 
and cable system operators have told us that basic and premium channels 
do not compete on price.5 There are closer substitutes, in terms 
of price and content, for CNN (in the basic tier) and for HBO (in the 
premium tier).
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    \4\ Complaint Paras. II.4 & III.9. To the extent that each 
network (CNN and HBO) is viewed as ``necessary'' to attract 
subscribers, as alleged in the complaint, each would appear to have 
market power quite independent of the proposed transaction and of 
each other.
    \5\ If the market includes premium cable channels, it probably 
ought also to include video cassette rentals, which constrain the 
pricing of premium channels. Federal Communications Commission, 
Second Annual Report on the Status of Competition in the Market for 
the Delivery of Video Programming para. 121 (Dec. 7, 1995) 
(hereafter ``FCC Report''). If the theory is that HBO and CNN 
compete for channel space, the market probably should include over-
the-air broadcast networks, at least to the extent that they can 
obtain cable channel space as the price for retransmission rights.
---------------------------------------------------------------------------

    I am not persuaded that the product market alleged in the complaint 
could be sustained. The products of Time Warner and Turner are not the 
first and second choices for consumers (or cable system operators or 
other MVPDs), and there are no other horizontal overlaps warranting 
enforcement action in any other cable programming market.6 Under 
these circumstances, it would seem appropriate to withdraw the proposed 
complaint.
---------------------------------------------------------------------------

    \6\ In the two product markets most likely to be sustained under 
the law, basic cable services and premium cable services, the 
transaction falls within safe harbors described in the 1992 Merger 
Guidelines.
---------------------------------------------------------------------------

Entry
    The proposed complaint alleges that entry is difficult and 
unlikely.7 This is an astonishing allegation, given the amount of 
entry in the cable programming market. The number of cable programming 
services increased from 106 to 129 in 1995, according to the FCC.8 
One source reported thirty national 24-hour channels expected to launch 
this year,9 and another recently identified seventy-three networks 
``on the launch pad'' for 1996.10 That adds up to between fifty-
three and ninety-six new and announced networks in two years. Another 
source listed 141 national 24-hour cable networks launched or announced 
between January 1993 and March 1996.11
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    \7\ Complaint Paras. 33-35.
    \8\ FCC Report para. 10.
    \9\ National Cable Television Association, Cable Television 
Developments 103-17 (Fall 1995).
    \10\ ``On the Launch Pad,'' Cable World, April 29, 1996, at 143; 
see also Cablevision, Jan. 22, 1996, at 54 (98 announced services 
with expected launches in 1996).
    \11\ ``A Who's Who of New Nets,'' Cablevision, April 15, 1996 
(Special Supp.) at 27A-44A (as of March 28, 1996, 163 new networks 
when regional, pay-per-view and interactive services are included).
---------------------------------------------------------------------------

    This does not mean that entry is easy or inexpensive. Not all the 
channels that have announced will launch a service, and not all those 
that launch will succeed.12 But some of them will. Some

[[Page 50315]]

recent entrants include CNNfn (December 1995), Nick at Nite (April 
1996), MS/NBC (July 1996) and the History Channel (January 
1995).13 The Fox network plans to launch a third 24-hour news 
channel, and Westinghouse and CBS Entertainment recently announced that 
they will launch a new entertainment and information cable channel, Eye 
on People, in March 1997.14 The fact of so much ongoing entry 
indicates that entry should be regarded as virtually immediate.
---------------------------------------------------------------------------

    \12\ ``The stamina and pocket-depth of backers of new players 
[networks] still remain key factors for survival. However, 
distribution is still the name of the game.'' Cablevision, April 15, 
1996 (Special Supp.), at 3A.
    \13\ Carter, ``For History on Cable, the Time Has Arrived,'' 
N.Y. Times, May 20, 1996, at D1. The article reported that the 
History Channel began in January 1995 with one million subscribers, 
reached 8 million subscribers by the end of the year and by May 1996 
was seen in 18 million homes.
    \14\ Carmody, ``The TV channel,'' The Washington Post, Aug. 21, 
1996, at D12.
---------------------------------------------------------------------------

    New networks need not be successful or even launched before they 
can exert significant competitive pressure. Announced launches can 
affect pricing immediately. The launch of MS/NBC and the announcement 
of Fox's cable news channel already may have affected the incumbent 
all-news channel, CNN, because cable system operators can credibly 
threaten to switch to one of the new news networks in negotiations to 
renew CNN.15
---------------------------------------------------------------------------

    \15\ This is the kind of competition we would expect to see 
between cable networks that are substitutes for one another and the 
kind of competition that is non-existent between CNN and HBO.
---------------------------------------------------------------------------

    Any constraint on cable channel capacity does not appear to be 
deterring entry of new networks. Indeed, the amount of entry that is 
occurring apparently reflects confidence that channel capacity will 
expand, for example, by digital technology. In addition, alternative 
MVPDs, such as Direct Broadcast Satellite (DBS), may provide a 
launching pad for new networks.16 For example, CNNfn was launched 
in 1995 with 4 to 5 million households, divided between DBS and cable.
---------------------------------------------------------------------------

    \16\ The entry of alternative MVPD technologies may put 
competitive pressure on cable system operators to expand capacity 
more quickly. See ``The Birth of Networks,'' Cablevision (Special 
Supp. April 15, 1996), at 8A (cable system operators ``don't want 
DBS and the telcos to pick up the services of tomorrow while they 
are being overly arrogant about their capacity'').
---------------------------------------------------------------------------

    Nor should we ignore significant technological changes in video 
distribution that are affecting cable programming. One such change is 
the development and commercialization of new distribution methods that 
can provide alternatives for both cable programmers and subscribers. 
DBS is one example. With digital capability, DBS can provide hundreds 
of channels to subscribers. By September 1995, DBS was available in all 
forty-eight contiguous states and Alaska.17 In April 1996, DBS had 
2.4 million customers; in August 1996, DBS had 3.34 million subscribers 
18 (compared to 62 million cable customers in the U.S.). AT&T 
recently invested $137.5 million in DirecTV, a DBS provider, began to 
sell satellite dishes and programming to its long distance customers in 
four markets, and reportedly plans to expand to the rest of the country 
in September 1996.19 EchoStar and AlphaStar both have launched new 
DBS services, and MCI Communication and News Corp. have announced a 
partnership to enter DBS.20 Some industry analysts predict that 
DBS will serve 15 million subscribers by 2000.21
---------------------------------------------------------------------------

    \17\ FCC Report para. 49.
    \18\ DBS Digest, Aug. 22, 1996 (http://www.dbsdish.com/
dbsdata,html (Sept. 5, 1996)).
    \19\ See Breznick, ``Crowded Skies,'' Cable World (April 29, 
1996) (http://www.mediacentral.com/magazines/Cable Worls/News96/
1996042913.htm/539128 (Setp. 3, 1996); see also N.Y. Times, JUly 14, 
1996, at 23 (AT&T full page ad for digital satellite system DirecTV 
and USSB); USA Today, Aug. 20, 1996, at 5D (DISH Network full page 
ad for digital satellite system and channels).
    \20\ Breznick, ``Crowded Skies,'' Cable World, April 29, 1996 
(http://www.mediacentral.com/magazines/Cable World/news96/
1996042913.htm/539128 (Sept. 3, 1996)).
    \21\ See id.
---------------------------------------------------------------------------

    Digital technology, which would expand cable capacity to as many as 
500 channels, is another important development. DBS already uses 
digital technology, and some cable operators plan to begin providing 
digital service later this year. Discovery Communications (The 
Discovery Channel) has announced that it will launch four new 
programming services designed for digital boxes in time for TCI's 
``digital box rollout'' this fall.22 (Even without digital 
service, cable systems have continued to upgrade their capacity; in 
1994, about 64% of cable systems offered thirty to fifty-three 
channels, and more than 14% offered fifty-four or more 
channels.23) Local telephone companies have entered as 
distributors via video dialtone, MMDS 24 and cable systems, and 
the telcos are exploring additional ways to enter video distribution 
markets. Digital compression and advanced television technologies could 
make it possible for multiple programs to be broadcast over a single 
over-the-air broadcast channel.25 When these developments will be 
fully realized is open to debate, but it is clear that they are on the 
way and affecting competition. According to one trade association 
official, cable operators are responding to competition by ``upgrading 
their infrastructures with fiber optics and digital compression 
technologies to boost channel capacity. * * * What's more, cable 
operators are busily trying to polish their images with a public that 
has long registered gripes over pricing, customer service and 
programming choice.'' 26
---------------------------------------------------------------------------

    \22\ Katz, ``Discovery Goes Digital,'' Multichannel News Digest, 
Sept. 3, 1996 (``The new networks * * * will launch Oct. 22 in order 
to be included in Tele-Communications Inc.'s digital box rollout in 
Hartford, Conn.'') (http://www.multichannel.com/digest.htm (Sept. 5, 
1996)).
    \23\ FCC Report at B-2 (Table 3).
    \24\ MMDS stands for multichannel multipoint distribution 
service, a type of wireless cable See FCC Report at Paras. 68.85. 
Industry observers project that MMDS will serve more than 2 million 
subscribers in 1997 and grow more than 280% between 1995 and 1998. 
FCC Report para. 71.
    \25\ FCC Report para. 116.
    \26\ Pendleton, ``Keeping Up With Cable Competition,'' Cable 
World, April 29, 1996, at 158.
---------------------------------------------------------------------------

    Ongoing entry in programming suggests that no program seller could 
maintain an anticompetitive price increase and, therefore, there is no 
basis for liability under Section 7 of the Clayton Act. Changes in the 
video distribution market will put additional pressure on both cable 
systems and programming providers to be competitive by providing 
quality programming at reasonable prices. The quality and quantity of 
entry in the industry warrants dismissal of the complaint.
Horizontal Theory of Liability
    The proposed complaint alleges that Time Warner will be able to 
exploit its ownership of HBO and the Turner basic channels by 
``bundling'' Turner networks with HBO, that is, by selling them as a 
package.27 As a basis for liability in a merger case, this appears 
to be without precedent.28 Bundling is not always anticompetitive, 
and one problem with the theory is that we cannot predict when it will 
be anticompetitive.29 Bundling can be used to transfer market 
power from the ``tying'' product to the ``tied'' product, but it also 
is used in many industries as a means of discounting. Popular cable 
networks, for example, have been sold in a package at a discount from 
the single product price. This can be a way for a programmer to 
encourage cable system operators to carry multiple

[[Page 50316]]

networks and achieve cross-promotion among the networks in the package. 
Even if it seemed more likely than not that Time Warner would bundle 
HBO with Turner networks after the merger, we could not a priori 
identify this as an anticompetitive effect.
---------------------------------------------------------------------------

    \27\ Complaint para. 38a.
    \28\ Cf. Heublein, Inc., 96 F.T.C. 385, 596-99 (1980) (rejecting 
a claim of violation based on leveraging).
    \29\ See Whinston, ``Tying, Foreclosure, and Exclusion,'' 80 Am. 
Econ. Rev. 837, 855-56 (1990) (tying can be exclusionary, but ``even 
in the simple models considered [in the article], which ignore a 
number of other possible motivations for the practice, the impact of 
this exclusion on welfare is uncertain. This fact, combined with the 
difficulty of sorting out the leverage-based instances of tying from 
other cases, makes the specification of a practical legal standard 
extremely difficult.'').
---------------------------------------------------------------------------

    The alleged violation rests on a theory that the acquisition raises 
the potential for unlawful tying. To the best of my knowledge, Section 
7 of the Clayton Act has never been extended to such a situation. There 
are two reasons not to adopt the theory here. First, challenging the 
mere potential to engage in such conduct appears to fall short of the 
``reasonable probability'' standard under Section 7 of the Clayton Act. 
We do not seek to enjoin mergers on the mere possibility that firms in 
the industry may later choose to engage in unlawful conduct. It is 
difficult to imagine a merger that could not be enjoined if ``mere 
possibility'' of unlawful conduct were the standard. Here, the 
likelihood of anticompetitive effects is even more removed, because 
tying, the conduct that might possibly occur, in turn might or might 
not prove to be unlawful. Second, anticompetitive tying is unlawful, 
and Time Warner would face private law suits and agency enforcement 
action for such conduct.
    The proposed remedy for the alleged bundling is to prohibit 
it,30 with no attempt to distinguish efficient bundling from 
anticompetitive bundling.31 Assuming liability on the basis of an 
anticompetitive horizontal overlap, the obvious remedy would be to 
enjoin the transaction or require the divestiture of HBO. Divestiture 
is a simple, easily reviewable and complete remedy for an 
anticompetitive horizontal overlap. The weakness of the Commission's 
case seems to be the only impediment to imposing that remedy here.
---------------------------------------------------------------------------

    \30\ Order para. V.
    \31\ Although the proposed order would permit any bundling that 
Time Warner or Turner could have implemented independently before 
the merger, the reason for this distinction appears unrelated to 
distinguishing between pro- and anti-competitive bundling.
---------------------------------------------------------------------------

Vertical Theories
    The complaint also alleges two vertical theories of competitive 
harm. The first is foreclosure of unaffiliated programming from Time 
Warner and TCI cable systems.32 The second is anticompetitive 
price discrimination against competing MVPDs in the sale of cable 
programming.33 Neither of these alleged outcomes appears 
particularly likely.
---------------------------------------------------------------------------

    \32\ Complaint para. 38b.
    \33\ Complaint para. 38c.
---------------------------------------------------------------------------

Foreclosure
    Time Warner cannot foreclose the programming market by refusing 
carriage on its cable system, because Time Warner has less than 20% of 
cable subscribers in the United States. Even if TCI were willing to 
join in an attempt to barricade programming produced by others from 
distribution, TCI and Time Warner together control less than 50% of the 
cable subscribers in the country. In that case, entry of programming 
via cable might be more expensive (because of the costs of obtaining 
carriage on a number of smaller systems), but it need not be 
foreclosed. And even if Time Warner and TCI together controlled a 
greater share of cable systems, the availability of alternative 
distributors of video programming and the technological advances that 
are expanding cable channel capacity make foreclosure as a result of 
this transaction improbable.
    The foreclosure theory also is inconsistent with the incentives of 
the market. Cable system operators want more and better programming, to 
woo and win subscribers. To support their cable systems, Time Warner 
and TCI must satisfy their subscribers by providing programming that 
subscribers want at reasonable prices. Given competing distributors and 
expanding channel capacity, neither of them likely would find it 
profitable to attempt to exclude new programming.
    TCI as a shareholder of Time Warner, as the transaction has been 
proposed to us (with a minority share of less than 10%), would have no 
greater incentive than it had as a 23% shareholder of Turner to protect 
Turner programming from competitive entry. Indeed, TCI's incentive to 
protect Turner programming would appear to be diminished.34 If 
TCI's interest in Time Warner increased, it stands to reason that TCI's 
interest in the well-being of the Turner networks also would increase. 
But it is important to remember that TCI's principal source of income 
is its cable operations, and its share of Time Warner profits from 
Turner programming would be insufficient incentive for TCI to 
jeopardize its cable business.35 It may be that TCI could acquire 
an interest in Time Warner that could have anticompetitive 
consequences, but the Commission should analyze that transaction when 
and if TCI increases its holdings. The divestiture requirement imposed 
by the order 36 is not warranted at this time.
---------------------------------------------------------------------------

    \34\ Turner programming would account for only part of TCI's 
interest in Time Warner.
    \35\ Even if its share of Time Warner were increased to 18%, 
TCI's interest in the combined Time Warner/Turner cash flow would be 
only slightly greater than TCI's pre-transaction interest in Turner 
cash flow, and it would still amount to only an insignificant 
fraction of the cash flow generated by TCI's cable operations.
    \36\ Order Paras. II & III.
---------------------------------------------------------------------------

    Another aspect of the foreclosure theory alleged in the complaint 
is a carriage agreement (programming service agreement or PSA) between 
TCI and Turner. Under the PSA, TCI would carry certain Turner networks 
for twenty years, at a discount from the average price at which Time 
Warner sells the Turner networks to other cable operators. The 
complaint alleges that TCI's obligations under the PSA would diminish 
its incentives and ability to carry programming that competes with 
Turner programming,37 which in turn would raise barriers to entry 
for unaffiliated programming. The increased difficulty of entry, so the 
theory goes, would in turn enable Time Warner to raise the price of 
Turner programming sold to cable operators and other MVPDs. It is hard 
to see that the PSA would have anticompetitive effects. TCI already has 
contracts with Turner that provide for mandatory carriage of CNN and 
TNT, and TCI is likely to continue to carry these programming networks 
for the foreseeable future.38 The current agreements do not raise 
antitrust issues, and the PSA raises no new ones. Any theoretical 
bottleneck on existing systems would be even further removed by the 
time the carriage requirements under the PSA would have become 
effective (when existing carriage commitments expire), because 
technological changes will have expanded cable channel capacity and 
alternative MVPDs will have expanded their subscribership. The PSA 
could even give TCI incentives to encourage the entry of new 
programming to compete with Time Warner's programming and keep TCI's 
costs down.39 The PSA would have afforded Time Warner long term 
carriage for the Turner networks, given TCI long term programming 
commitments with some price protection, and eliminated the costs of 
renegotiating a number of existing Turner/TCI carriage agreements as 
they expire. These are efficiencies. No compelling reason has been

[[Page 50317]]

advanced for requiring that the carriage agreement be cancelled.40
---------------------------------------------------------------------------

    \37\ Complaint para. 38b(2).
    \38\ Cable system operators like to keep their subscribers 
happy, and subscribers do not like to have popular programming 
cancelled.
    \39\ Under the ``industry average price'' provision of the PSA, 
Time Warner could raise price to TCI by increasing the price it 
charges other MVPDs. TCI could encourage entry to defeat any attempt 
by Time Warner to increase price.
    \40\ See Order para. IV. There would appear to be even less 
justification for cancelling the PSA after ECI has been required 
either to divest or to cap its shareholdings in Time Warner.
---------------------------------------------------------------------------

    In addition to divestiture by TCI of its Time Warner shares and 
cancellation of the TCI/Turner carriage agreement, the proposed 
remedies for the alleged foreclosure include: (1) Antidiscrimination 
provisions by which Time Warner must abide in dealing with program 
providers; 41 (2) recordkeeping requirements to police compliance 
with the antidiscrimination provision; 42 and (3) a requirement 
that Time Warner carry ``at least one Independent Advertising-Supported 
News and Information National Video Programming Service.'' 43 
These remedial provisions are unnecessary, and they may be harmful.
---------------------------------------------------------------------------

    \41\ Order para. VII.
    \42\ Order para. VIII.
    \43\ Order para. IX.
---------------------------------------------------------------------------

    Paragraph VII of the proposed order, the antidiscrimination 
provision, seeks to protect unaffiliated programming vendors from 
exploitation and discrimination by Time Warner. The order provision is 
taken almost verbatim from a regulation of the Federal Communications 
Commission.44 It is highly unusual, to say the least, for an order 
of the FTC to require compliance with a law enforced by another federal 
agency, and it is unclear what expertise we might bring to the process 
of assuring such compliance. Although a requirement to obey existing 
law and FCC regulations may not appear to burden Time Warner unduly, 
the additional burden of complying with the FTC order may be costly for 
both Time Warner and the FTC. In addition to imposing extensive 
recordkeeping requirements,45 the order apparently would create 
another forum for unhappy programmers, who could seek to instigate an 
FTC investigation of Time Warner's compliance with the order, instead 
of or in addition to citing the same conduct in a complaint filed with 
and adjudicated by the FCC.46 The burden of attempting to enforce 
compliance with FCC regulations is one that this agency need not and 
should not assume.
---------------------------------------------------------------------------

    \44\ See 47 CFR 76.1301(a)-(c).
    \45\ The recordkeeping requirement may simply replicate an FCC 
requirement and perhaps impose no additional costs on Time Warner.
    \46\ See 47 CFR 76.1302. The FCC may mandate carriage and impose 
prices, terms and other conditions of carriage.
---------------------------------------------------------------------------

    Paragraph IX of the proposed order requires Time Warner to carry an 
independent all-news channel (presumably MS/NBC or the anticipated Fox 
all-news channel). This requirement is entirely unwarranted. A duty to 
deal might be appropriate on a sufficient showing if Time Warner were a 
monopolist. But with less than 20% of cable subscribers in the United 
States, Time Warner is neither a monopolist nor an ``essential 
facility'' in cable distribution.47 CNN, the apparent target of 
the FTC-sponsored entry, also is not a monopolist but is one of many 
cable programming services in the all-programming market alleged in the 
complaint. Clearly, CNN also is one of many sources of news and 
information readily available to the public, although this is not a 
market alleged in the complaint. Antitrust law, properly applied, 
provides no justification whatsoever for the government to help 
establish a competitor for CNN. Nor is there any apparent reason, other 
than the circular reason that it would be helpful to them, why 
Microsoft, NBC, or Rupert Murdoch's Fox needs a helping hand from the 
FTC in their new programming endeavors. CNN and other program networks 
did not obtain carriage mandated by the FTC when they launched; why 
should the Commission now tilt the playing field in favor of other 
entrants?
---------------------------------------------------------------------------

    \47\ Even in New York City, undoubtedly an important media 
market, available data indicate that Time Warner apparently serves 
only about one-quarter of cable households. See Cablevision, May 13, 
1996, at 57; April 29, 1996, at 131 (Time Warner has about 1.1 
million subscribers in New York, which has about 4.5 million cable 
households). We do not have data about alternative MVPD subscribers 
in the New York area.
---------------------------------------------------------------------------

Price Discrimination
    The complaint alleges that Time Warner could discriminatory raise 
the prices of programming services to its MVPD rivals,48 
presumably to protect its cable operations from competition. This 
theory assumes that Time Warner has market power in the all-cable 
programming market. As discussed above, however, there are reasons to 
think that the alleged all-cable programming market would not be 
sustained, and entry into cable programming is widespread and, because 
of the volume of entry, immediate. Under those circumstances, it 
appears not only not likely but virtually inconceivable that Time 
Warner could sustain any attempt to exercise market power in the all-
cable programming market.
---------------------------------------------------------------------------

    \48\ Complaint para. 38c.
---------------------------------------------------------------------------

    Whatever the merits of the theory in this case, however, 
discrimination against competing MVPDs in price or other terms of sale 
of programming is prohibited by federal statute 49 and by FCC 
regulations,50 and the FCC provides a forum to adjudicate 
complaints of this nature. Unfortunately, the majority is not content 
to leave policing of telecommunications to the FCC.
---------------------------------------------------------------------------

    \49\ 47 U.S.C.A. 548.
    \50\ CFR 76.1000-76.1002.
---------------------------------------------------------------------------

    Paragraph VI of the proposed order addresses the alleged violation 
in the following way: (1) It requires Time Warner to provide Turner 
programming to competing MVPDs on request; and (2) it establishes a 
formula for determining the prices that Time Warner can charge MVPDs 
for Turner programming in areas in which Time Warner cable systems and 
the MVPDs compete. The provision is inconsistent with two antitrust 
principles: Antitrust traditionally does not impose a duty to deal 
absent monopoly, which does not exist here, and antitrust traditionally 
has not viewed price regulation as an appropriate remedy for market 
power. Indeed, price regulation usually is seen as antithetical to 
antitrust.
    Although Paragraph VI ostensibly has the same nondiscrimination 
goal as federal telecommunications law and FCC regulations, the bright 
line standard in the proposed order for determining a nondiscriminatory 
price fails to take account of the circumstances Congress has 
identified in which price differences could be justified, such as, for 
example, cost differences, economies of scale or ``other direct and 
legitimate economic benefits reasonably attributable to the number of 
subscribers serviced by the distributor.'' 51 These are 
significant omissions, particularly for an agency that has taken pride 
in its mission to prevent unfair methods of competition. There is no 
apparent reason or authority for creating this exception to a 
congressional mandate. To the extent that the proposed order creates a 
regulatory scheme different from that afforded by the FCC, disgruntled 
MVPDs may find it to their advantage to seek sanctions against Time 
Warner at the FTC.52 This is likely to be costly for the FTC and 
for Time Warner, and the differential scheme of regulation also could 
impose other, unforeseen costs on the industry.
---------------------------------------------------------------------------

    \51\ U.S.C.A. 548(c)(B)(i)-(iii)
    \52\ Most people outside the FTC and the FCC already confuse the 
two agencies. Surely we do not want to contribute to this confusion.
---------------------------------------------------------------------------

Efficiencies
    As far as I can tell, the proposed consent order entirely ignores 
the likely efficiencies of the proposed transaction. The potential 
vertical efficiencies include more and better programming options for 
consumers and reduced transaction costs for the merging firms.

[[Page 50318]]

The potential horizontal efficiencies include savings from the 
integration of overlapping operations and of film and animation 
libraries. For many years, the Commission has devoted considerable time 
and effort to identifying and evaluating efficiencies that may result 
from proposed mergers and acquisitions. Although cognizable 
efficiencies occur less frequently than one might expect, the 
Commission has not stinted in its efforts to give every possible 
consideration to efficiencies. That makes the apparent disinterest in 
the potential efficiencies of this transaction decidedly odd.
Industry Complaints
    We have heard many expressions of concern about the proposed 
transaction. Cable system operators and alternative MVPDs have been 
concerned about the price and availability of programming from Time 
Warner after the acquisition. Program providers have been concerned 
about access to Time Warner's cable system. These are understandable 
concerns, and I am sympathetic to them. To the extent that these 
industry members want assured supply or access and protected prices, 
however, this is the wrong agency to help them. Because Time Warner 
cannot foreclose either level of service and is neither a monopolist 
nor an ``essential facility'' in the programming market or in cable 
services, there would appear to be no basis in antitrust for the access 
requirements imposed in the order.
    The Federal Communications Commission is the agency charged by 
Congress with regulating the telecommunications industry, and the FCC 
already has rules in place prohibiting discriminatory prices and 
practices. While there may be little harm in requiring Time Warner to 
comply with communications law, there also is little justification for 
this agency to undertake the task. To the extent that the proposed 
consent order offers a standard different from that promulgated by 
Congress and the FCC, it arguably is inconsistent with the will of 
Congress. To the extent that the proposed consent order would offer a 
more attractive remedy for complaints from disfavored competitors and 
customers of Time Warner, they are more likely to turn to us than to 
the FCC. There is much to be said for having the FTC confine itself to 
FTC matters, leaving FCC matters to the FCC.
    The proposed order should be rejected.

Dissenting Statement of Commissioner Roscoe B. Starek, III, in the 
Matter of Time Warner Inc., et al. File No. 961-0004

    I respectfully dissent from the Commission's decision to accept a 
consent agreement with Time Warner Inc. (``TW''), Turner Broadcasting 
System, Inc. (``TBS''), Tele-Communications, Inc. (``TCI''), and 
Liberty Media Corporation. The proposed complaint against these 
producers and distributors of cable television programming alleges 
anticompetitive effects arising from (1) The horizontal integration of 
the programming interests of TW and TBS and (2) the vertical 
integration of the TBS's programming interests with TW's and TCI's 
distribution interests. I am not persuaded that either the horizontal 
or the vertical aspects of this transaction are likely ``substantially 
to lessen competition'' in violation of Section 7 of the Clayton Act, 
15 U.S.C. 18, or otherwise to constitute ``unfair methods of 
competition'' in violation of Section 5 of the Federal Trade Commission 
Act, 15 U.S.C. 45. Moreover, even if one were to assume the validity of 
one or more theories of violation underlying this action, the proposed 
order does not appear to prevent the alleged effects and may instead 
create inefficiency.
Horizontal Theories of Competitive Harm
    This transaction involves, inter alia, the combination of TW and 
TBS, two major suppliers of programming to multichannel video program 
distributors (``MVPDs''). Accordingly, there is a straightforward 
theory of competitive harm that merits serious consideration by the 
Commission. In its most general terms, the theory is that cable 
operators regard TW programs as close substitutes for TBS programs. 
Therefore, the theory says, TW and TBS act as premerger constraints on 
each other's ability to raise program prices. Under this hypothesis, 
the merger eliminates this constraint, allowing TW--either unilaterally 
or in coordination with other program vendors--to raise prices on some 
or all of its programs.
    Of course, this story is essentially an illustration of the 
standard theory of competitive harm set forth in Section 2 of the 1992 
Horizontal Merger Guidelines.1 Were an investigation pursuant to 
this theory to yield convincing evidence that it applies to the current 
transaction, under most circumstances the Commission would seek 
injunctive relief to prevent the consolidation of the assets in 
question. The Commission has eschewed that course of action, however, 
choosing instead a very different sort of ``remedy'' that allows the 
parties to proceed with the transaction but restricts them from 
engaging in some (but not all) ``bundled'' sales of programming to 
unaffiliated cable operators.2 Clearly, this choice of relief 
implies an unusual theory of competitive harm from what ostensibly is a 
straightforward horizontal transaction. The Commission's remedy does 
nothing to prevent the most obvious manifestation of postmerger market 
power--an across-the-board price increase for TW and TBS programs. Why 
has the Commission forgone its customary relief directed against its 
conventional theory of harm?
---------------------------------------------------------------------------

    \1\ U.S. Department of Justice and Federal Trade Commission, 
Horizontal Merger Guidelines, Sec. 2 (1992), 4 Trade Reg. Rep. (CCH) 
para. 13,104 at 20,573-6 et seq.
    \2\ In the Analysis of Proposed consent Order to Aid Public 
Comment (Sec. IV.C), the Commission asserts that ``the easiest way 
the combined firm could exert substantially greater negotiating 
leverage over cable operators is by combining all or some of such 
`marquee' services and offering them as a package or offering them 
along with unwanted programming.'' As I note below, it is far from 
obvious why this bundling strategy represents the ``easiest'' way to 
exercise market power against cable operators. The easiest way to 
exercise any newly-created market power would be simply to announce 
higher programming prices.
---------------------------------------------------------------------------

    The plain answer is that there is little persuasive evidence that 
TW's programs constrain those of TBS (or vice-versa) in the fashion 
described above. In a typical FTC horizontal merger enforcement action, 
the Commission relies heavily on documentary evidence establishing the 
substitutability of the parties' products or services.3 For 
example, it is

[[Page 50319]]

standard to study the parties' internal documents to determine which 
producers they regard as their closest competitors. This assessment 
also depends frequently on internal documents supplied by customers 
that show them playing off one supplier against another--via credible 
threats of supplier termination--in an effort to obtain lower prices.
---------------------------------------------------------------------------

    \3\ The Merger Guidelines emphasize the importance of such 
evidence. Section 1.11 specifically identifies the following two 
types of evidence as particularly informative: ``(1) Evidence that 
buyers have shifted or have considered shifting purchases between 
products in response to relative changes in price or other 
competitive variables [and] (2) evidence that sellers base business 
decisions on the prospect of buyer substitution between products in 
response to relative changes in price or other competitive 
variables.''
    To illustrate, in Coca-Cola Bottling Co. of the Southwest, 
Docket No. 9215, complaint counsel argued in favor of a narrow 
product market consisting of ``all branded carbonated soft drinks'' 
(``CSDs''), while respondent argued for a much broader market. In 
determining that all branded CSDs constituted the relevant market, 
the Commission place great weight on internal documents from local 
bottlers of branded CSDs showing that those bottlers ``[took] into 
account only the prices of other branded CSD products [and not the 
prices of private label or warehouse-delivered soft drinks] in 
deciding on pricing for their own branded CSD products.'' 5 Trade 
Reg. Rep. (CCH) para.23,681 at 23,413 (Aug. 31, 1994), vacated and 
remanded on other grounds, Coca-Cola Bottling Co. of the Southwest 
v. FTC, No. 94-41224 (5th Cir., June 10, 1996). (The Commission 
dismissed its complaint on September 6, 1996.)
---------------------------------------------------------------------------

    In this matter, however, documents of this sort are conspicuous by 
their absence. Notwithstanding a voluminous submission of materials 
from the respondents and third parties (and the considerable incentives 
of the latter--especially other cable operators--to supply the 
Commission with such documents), there are no documents that reveal 
cable operators threatening to drop a TBS ``marquee'' network (e.g., 
CNN) in favor of a TW ``marquee'' network (e.g., HBO). There also are 
no documents from, for instance, TW suggesting that it sets the prices 
of its ``marquee'' networks in reference to those of TBS, taking into 
account the latter's likely competitive response to unilateral price 
increases or decreases. Rather, the evidence supporting any prediction 
of a postmerger price increase consists entirely of customers' 
contentions that program prices would rise following the acquisition. 
Although customers' opinions on the potential effects of a transaction 
often are important, they seldom are dispositive. Typically the 
Commission requires substantial corroboration of these opinions from 
independent information sources.4
---------------------------------------------------------------------------

    \4\ For example, in R.R. Donnelley Sons & Co., et al., Docket 
No. 9243, the Administrative Law Judge's decision favoring complaint 
counsel rested in part on his finding that ``[a]s soon as the 
Meredith/Burda acquisition was announced, customers expressed 
concern to the FTC and the parties about the decrease in competition 
that might result.'' (Initial Decision Finding 404.) In overturning 
the ALJ's decision, the Commission cautioned: ``There is some danger 
in relying on these customer complaints to draw any general 
conclusions about the likely effects of the acquisition or about the 
analytical premises for those conclusions. The complaints are 
consistent with a variety of effects, and many--including those the 
ALJ relied upon--directly contradict [c]omplaint [c]ounsel's 
prediction of unilateral price elevation.'' 5 Trade Reg. Rep. (CCH) 
para.23,876 at 23,660 n. 189 (July 21, 1995).
    Also, in several instances involving hospital mergers in 
concentrated markets, legions of third parties came forth to attest 
to the transaction's efficiency. The Commission has discounted this 
testimony, however, when these third parties could not articulate or 
document the source of the claimed efficiency, or when the testimony 
lacked corroboration from independent information sources. I believe 
that the Commission should apply the same evidentiary standards to 
the third-party testimony in the current matter.
---------------------------------------------------------------------------

    Independent validation of the anticompetitive hypothesis becomes 
particularly important when key elements of the story lack credibility. 
For a standard horizontal theory of harm to apply here, one key element 
is that, prior to the acquisition, a MVPD could credibly threaten to 
drop a marquee network (e.g., CNN), provided it had access to another 
programmer's marquee network (e.g., HBO) that it could offer to 
potential subscribers. This threat would place the MVPD in a position 
to negotiate a better price for the marquee networks than if those 
networks were jointly owned.
    Here, the empirical evidence gathered during the investigation 
reveals that such threats would completely lack credibility. Indeed, 
there appears to be little, if any, evidence that such threats ever 
have been made, let alone carried out. CNN and HBO are not substitutes, 
and both are carried on virtually all cable systems nationwide. If, as 
a conventional horizontal theory of harm requires, these program 
services are truly substitutes--if MVPDs regularly play one off against 
the other, credibly threatening to drop one in favor of another--then 
why are there virtually no instances in which an MVPD has carried out 
this threat by dropping one of the marquee services? The absence of 
this behavior by MVPDs undermines the empirical basis for the asserted 
degree of substitutability between the two program services.5
---------------------------------------------------------------------------

    \5\ In virtually any case involving less pressure to come up 
with something to show for the agency's strenuous investigative 
efforts, the absence of such evidence would lead the Commission to 
reject a hypothesized product market that included both marquee 
services. Suppose that two producers of product A proposed to merge 
and sought to persuade the Commission that the relevant market also 
included product B, but they could not provide any examples of 
actual substitution of B for A, or any evidence that threats of 
substitution of B for A actually elicited price reductions from 
sellers of A. In the usual run of cases, this lack of 
substitutability would almost surely lead the Commission to reject 
the expanded market definition. But not so here.
---------------------------------------------------------------------------

    Faced with this pronounced lack of evidence to support a 
conventional market power story and a conventional remedy, the 
Commission has sought refuge in what appears to be a very different 
theory of postmerger competitive behavior. This theory posits an 
increased likelihood of program ``bundling'' as a consequence of the 
transaction.6 But there are two major problems with this theory as 
a basis for an enforcement action. First, there is no strong 
theoretical or empirical basis for believing that an increase in 
bundling of TW and TBS programming would occur postmerger. Second, even 
if such bundling did occur, there is no particular reason to think that 
it would be competitively harmful.
---------------------------------------------------------------------------

    \6\ As I noted earlier, a remedy that does nothing more than 
prevent ``bundling'' of different programs would fail completely to 
prevent the manifestations of market power--such as across-the-board 
price increases--most consistent with conventional horizontal 
theories of competitive harm.
---------------------------------------------------------------------------

    Given the lack of documentary evidence to show that TW intends to 
bundle its programming with that of TBS, I do not understand why the 
majority considers an increase in program bundling to be a likely 
feature of the postmerger equilibrium, nor does economic theory supply 
a compelling basis for this prediction. Indeed, the rationale for this 
element of the case (as set forth in the Analysis to Aid Public 
Comment) can be described charitably as ``incomplete.'' According to 
the Analysis, unless the FTC prevents it, TW would undertake a bundling 
strategy in part to foist ``unwanted programming'' upon cable 
operators.7 Missing from the Analysis, however, is any sensible 
explanation of why TW should wish to pursue this strategy, because the 
incentives to do so are not obvious.8
---------------------------------------------------------------------------

    \7\ As I have noted, supra n. 2, the Analysis also claims that 
TW could obtain ``substantially greater negotiating leverage over 
cable operator * * * by combining all or some of [the merged firm's] 
`marquee' services and offering them as a package * * *'' If the 
Analysis uses the term ``negotiating leverage'' to mean ``market 
power'' as the latter is conventionally defined, then it confronts 
three difficulties: (1) The record fails to support the proposition 
that the TW and TBS ``marquee'' channels are close substitutes for 
each other; (2) even assuming that those channels are close 
substitutes, there are more straightforward ways for TW to exercise 
postmerger market power; and (3) the remedy does nothing to prevent 
these more straightforward exercises of market power. See discussion 
supra.
    \8\ In ``A Note on Block Booking'' in The Organization of 
Industry (1968), George Stigler analyzed the practice of ``block 
booking''--or, in current parlance, ``bundling''--``marquee'' motion 
pictures with considerably less popular films. Some years earlier, 
the United States Supreme Court had struck this practice down as an 
anticompetitive ``leveraging'' of market power from desirable to 
undesirable films. United States v. Loew's Inc., 371 U.S. 38 (1962). 
As Stigler explained (at 165), it is not obvious why distributors 
should wish to force exhibitors to take the inferior film:
    Consider the following simple example. One film, Justice 
Goldberg cited Gone with the Wind, is worth $10,000 to the buyer, 
while a second film, the Justice cited Getting Gertie's Garter, is 
worthless to him. The seller could sell the one for $10,000, and 
throw away the second, for no matter what its cost, bygones are 
forever bygones. Instead the seller compels the buyer to take both. 
But surely he can obtain no more than $10,000, since by hypothesis 
this is the value of both films to the buyer. Why not, in short, use 
his monopoly power directly on the desirable film? It seems no more 
sensible, on this logic, to block book the two films than it would 
be to compel the exhibitor to buy Gone with the Wind and seven Ouija 
boards, again for $10,000.
---------------------------------------------------------------------------

    A possible anticompetitive rationale for ``bundling'' might run as 
follows: by requiring cable operators to purchase a bundle of TW and 
TBS programs that contains substantial amounts of ``unwanted'' 
programming, TW can tie

[[Page 50320]]

up scarce channel capacity and make entry by new programmers more 
difficult. But even if that strategy were assumed arguendo to be 
profitable,9 the order would have only a trivial impact on TW's 
ability to pursue it. The order prohibits only the bundling of TW 
programming with TBS programming; TW remains free under the order to 
create new ``bundles'' comprising exclusively TW, or exclusively TBS, 
programs. Given that many TW and TBS programs are now sold on an 
unbundled basis--a fact that calls into question the likelihood of 
increased postmerger bundling 10--and given that, under the 
majority's bundling theory, any TW or TBS programming can tie up a 
cable channel and thereby displace a potential entrant's programming, 
the order hardly would constrain TW's opportunities to carry out this 
``foreclosure'' strategy.
---------------------------------------------------------------------------

    \9\ The argument here basically is a variant of the argument 
often used to condemn exclusive dealing as a tool for monopolizing a 
market. Under this argument, an upstream monopolist uses its market 
power to obtain exclusive distribution rights from its distributors, 
thereby foreclosing potential manufacturing entrants and obtaining 
additional market power. But there is problem with this argument, as 
Bork explains in The Antitrust Paradox (1978):
    [The monopolist can extract in the prices it charges retailers 
all that the uniqueness of its line is worth. It cannot charge the 
retailers that full worth in money and then charge it again in 
exclusively the retailer does not wish to grant. To suppose that it 
can is to commit the error of double counting. If [the firm] must 
forgo the higher prices it could have demanded in order to get 
exclusivity, then exclusivity is not an imposition, it is a 
purchase. Id. at 306; see also id. at 140-43.
    Although modern economic theory has established the theoretical 
possibility that a monopolist might, under very specific 
circumstances, outbid an entrant for the resources that would allow 
entry to occur (thus preserving the monopoly), modern theory also 
has shown that this is not a generally applicable result. It breaks 
down, for example, when (as is likely in MVPD markets) many units of 
new capacity are likely to become available sequentially. See, e.g., 
Krishna, ``Auctions with Endogenous Valuations: The Persistence of 
Monopoly Revisited,'' 83 Am. Econ. Rev. 147 (1993); Malueg and 
Schwartz, ``Preemptive investment, toehold entry, and the mimicking 
principle,'' 22  RAND J. Econ. 1 (1991).
    \10\ If bundling is profitable for anticompetitive reasons, why 
do we not observe TW and TBS now exploiting all available 
opportunities to reap these profits?
---------------------------------------------------------------------------

    Finally, all of the above analysis implicitly assumes that the 
bundling of TW and TBS programming, if undertaken, would more likely 
than not be anticompetitive. The Analysis to Aid Public Comment, 
however, emphasizes that bundling programming in many other instances 
can be procompetitive. There seems to be no explanation of why the 
particular bundles at issue here would be anticompetitive, and no 
articulation of the principles that might be used to differentiate 
welfare-enhancing from welfare-reducing bundling.11
---------------------------------------------------------------------------

    \11\ Perhaps this reflects the fact that the economics 
literature does not provide clear guidance on this issue. See, e.g., 
Adams and Yellen, ``Commodity Bundling and the Burden of Monopoly,'' 
90 Q.J. Econ. 475 (1976). Adams and Yellen explain how a monopolist 
might use bundling as a method of price discrimination. (This also 
was Stigler's explanation, supra n. 8.) As Adams and Yellen note, 
``public policy must take account of the fact that prohibition of 
commodity bundling without more may increase the burden of monopoly 
* * * [M]onopoly itself must be eliminated to achieve high levels of 
social welfare.'' 90 Q.J. Econ. at 498. Adams and Yellen's 
conclusion is apposite here: if the combination of TW and TBS 
creates (or enhances) market power, then the solution is to enjoin 
the transaction rather than to proscribe certain types of bundling, 
since the latter ``remedy'' may actually make things worse. And if 
the acquisition does not create or enhance market power, the basis 
for the bundling proscription is even harder to discern.
---------------------------------------------------------------------------

    Thus, I am neither convinced that increased program bundling is a 
likely consequence of this transaction nor persuaded that any such 
bundling would be anticompetitive. Were I convinced that 
anticompetitive bundling is a likely consequence of this transaction, I 
would find the proposed remedy inadequate.
Vertical Theories of Competitive Harm
    The proposed consent order also contains a number of provisions 
designed to alleviate competitive harm purportedly arising from the 
increased degree of vertical integration between program suppliers and 
program distributors brought about by this transaction.12 I have 
previously expressed my skepticism about enforcement actions predicated 
on theories of harm from vertical relationships.13 The current 
complaint and proposed order only serve to reinforce my doubts about 
such enforcement actions and about remedies ostensibly designed to 
address the alleged competitive harms.
---------------------------------------------------------------------------

    \12\ Among other things, the order (1) constrains the ability of 
TW and TCI to enter into long-term carriage agreements (para. IV); 
(2) compels TW to sell Turner programming to downstream MVPD 
entrants at regulated prices (para. VI); (3) prohibits TW from 
unreasonably discriminating against non-TW programmers seeking 
carriage on TW cable systems (para. VII(C)); and (4) compels TW to 
carry a second 24-hour news service (i.e., in addition to CNN) 
(para. IX).
    \13\ Dissenting Statement of Commissioner Roscoe B. Starek, III, 
in Waterous Company, Inc./Hale Products, Inc., File No. 901 0061, 5 
Trade Reg. Rep. (CCH) para. 24,076 at 23,888-90; Dissenting 
Statement of Commissioner Roscoe B. Starek, III, in Silicon 
Graphics, Inc. (Alias Research, Inc., and Wavefront Technologies, 
Inc.), Docket No. C-3626 (Nov. 14, 1995), 61 Fed. Reg. 16797 (Apr. 
17, 1996); Remarks of Commissioner Roscoe B. Starek, III. 
``Reinventing Antitrust Enforcement? Antitrust at the FTC in 1995 
and Beyond,'' remarks before a conference on ``A New Age of 
Antitrust Enforcement: Antitrust in 1995'' (Marina Del Rey, 
California, Feb. 24, 1995) [available on the Commission's World Wide 
Web site at http://www.ftc.gov].
---------------------------------------------------------------------------

    The vertical theories of competitive harm posited in this matter, 
and the associated remedies, are strikingly similar to those to which I 
objected in Silicon Graphics, Inc. (``SGI''), and the same essential 
criticisms apply. In SGI, the Commission's complaint alleged 
anticompetitive effects arising from the vertical integration of SGI--
the leading manufacturer of entertainment graphics workstations--with 
Alias Research, Inc., and Wavefront Technologies, Inc.--two leading 
suppliers of entertainment graphics software. Although the acquisition 
seemingly raised straightforward horizontal competitive problems 
arising from the combination of Alias and Wavefront, the Commission 
inexplicably found that the horizontal consolidation was not 
anticompetitive on net.14 Instead, the order addressed only the 
alleged vertical problems arising from the transaction. The Commission 
alleged, inter alia, that the acquisitions in SGI would reduce 
competition through two types of foreclosure: (1) Nonintegrated 
software vendors would be excluded from the SGI platform, thereby 
inducing their exit (or deterring their entry); and (2) rival hardware 
manufacturers would be denied access to Alias and Wavefront software, 
without which they could not effectively compete against SGI. 
Similarly, in this case the Commission alleges (1) that nonintegrated 
program vendors will be excluded from TW and TCI cable systems and (2) 
that potential MVPD entrants into TW's cable markets will be denied 
access to (or face supracompetitive prices for) TW and TBS 
programming--thus lessening their ability to effectively compete 
against TW's cable operations. The complaint further charges that the 
exclusion of nonintegrated program vendors from TW's and TCI's cable 
systems will deprive those vendors of scale economies, render them 
ineffective competitors vis-a-vis the TW/Turner programming services, 
and thus confer market power on TW as a seller of programs to MVPDs in 
non-TW/non-TCI markets.
---------------------------------------------------------------------------

    \14\ I say ``inexplicably'' not because I necessarily believed 
this horizontal combination should have been enjoined, but because 
the horizontal aspect of the transaction would have exacerbated the 
upstream market power that would have had to exist for the vertical 
theories to have had any possible relevance.
---------------------------------------------------------------------------

    My dissenting statement in SGI identified the problems with this 
kind of analysis. For one thing, these two types of foreclosure--
foreclosure of independent program vendors from the TW and TCI cable 
systems, and foreclosure of independent MVPD firms from TW and TBS 
programming--tend

[[Page 50321]]

to be mutually exclusive. The very possibility of excluding independent 
program vendors from TW and TCI cable systems suggests the means by 
which MVPDs other than TW and TCI can avoid foreclosure. The 
nonintegrated program vendors surely have incentives to supply the 
``foreclosed'' MVPDs, and each MVPD has incentives to induce 
nonintegrated program suppliers to produce programming for it.15
---------------------------------------------------------------------------

    \15\ Moreover, as was also true in SGI, the proposed complaint 
in the present case characterizes premerger entry conditions in a 
way that appears to rule out significant anticompetitive foreclosure 
of nonintegrated upstream producers as a consequence of the 
transaction. Paragraphs 33, 34, and 36 of the complaint allege in 
essence that there are few producters of ``marquee'' programming 
before the merger (other than TW and TBS), in large part because 
entry into ``marquee'' programming is so very difficult (stemming 
form, e.g., the substantial irreversible investments that are 
required). If that is true--i.e., if the posited programming market 
already was effectively foreclosed before the merger--then, as in 
SGI, TW's acquistion of TBS could not cause substantial postmerger 
foreclosure of competitively significant alternatives to TW/TBS 
programming.
---------------------------------------------------------------------------

    In response to this criticism, one might argue--and the complaint 
alleges 16--that pervasive scale economies in programming, 
combined with a failure to obtain carriage on the TW and TCI systems, 
would doom potential programming entrants (and ``foreclosed'' incumbent 
programmers) because, without TW and/or TCI carriage, they would be 
deprived of the scale economies essential to their survival. In other 
words, the argument goes, the competitive responses of ``foreclosed'' 
programmers and ``foreclosed'' distributors identified in the preceding 
paragraph never will materialize. There are, however, substantial 
conceptual and empirical problems with this argument, and its 
implications for competition policy have not been fully explored.
---------------------------------------------------------------------------

    \16\ See Paragraph 38.b of the proposed complaint.
---------------------------------------------------------------------------

    First, if one believes that programming is characterized by such 
substantial scale economies that the loss of one large customer results 
in the affected programmer's severely diminished competitive 
effectiveness (in the limit, that programmer's exit), then this 
essentially is an argument that the number of program producers that 
can survive in equilibrium (or, perhaps more accurately, the number of 
program producers in a particular program ``niche'') will be small--
with perhaps only one survivor. Under the theory of the current case, 
this will result in a supracompetitive price for that program. Further, 
this will occur irrespective of the degree of vertical integration 
between programmers and distributors. Indeed, under these 
circumstances, there is a straightforward reason why vertical 
integration between a program distributor and a program producer would 
be both profitable and procompetitive (i.e., likely to result in lower 
prices to consumers): Instead of monopoly markups by both the program 
producer and the MVPD, there would be only one markup by the vertically 
integrated firm.17
---------------------------------------------------------------------------

    \17\ See, e.g., Tirole, The Theory of Industrial Organization 
174-76 (1988). The program price reductions would be observed only 
in those geographic markets where TW owned cable systems. Thus, the 
greater the number of cable subscribers served by TW, the more 
widespread would be the efficiencies. According to the proposed 
complaint (para. 32), TW cable systems serve only 17 percent of 
cable subscribers nationwide, so one might argue that the 
efficiencies are accordingly limited. But this, of course, leaves 
the Commission in the uncomfortable position of arguing that TW's 
share of total cable subscribership is too small to yield 
significant efficiencies, yet easily large enough to generate 
substantial ``foreclosure'' effects.
---------------------------------------------------------------------------

    Second, and perhaps more important, if the reasoning of the 
complaint is carried to its logical conclusion, it constitutes a basis 
for challenging any vertical integration by large cable operators or 
large programmers--even if that vertical integration were to occur via 
de novo entry by an operator into the programming market, or by de novo 
entry by a programmer into distribution. Consider the following 
hypothetical: A large MVPD announces both that it intends to enter a 
particular program niche and that it plans to drop the incumbent 
supplier of that type of programming. According to the theory 
underlying the proposed complaint, the dropped program would suffer 
substantially from lost scale economies, severely diminishing its 
competitive effectiveness, which in turn would confer market power on 
the vertically integrated entrant in its program sales to other MVPDs. 
Were the Commission to apply its current theory of competitive harm 
consistently, it evidently would have to find this de novo entry into 
programming by this large MVPD competitively objectionable.
    I suspect, of course, that virtually no one would be comfortable 
challenging such integration, since there is a general predisposition 
to regard expansions of capacity as procompetitive.18 
Consequently, one might attempt to reconcile the differential treatment 
of the two forms of vertical integration by somehow distinguishing them 
from each other.19 But in truth, the situations actually merit 
similar treatment--albeit not the treatment prescribed by the proposed 
order. In neither case should an enforcement action be brought, because 
any welfare loss flowing from either scenario derives from the 
structure of the upstream market, which in turn is determined primarily 
by the size of the market and by technology, not by the degree of 
vertical integration between different stages of production.
---------------------------------------------------------------------------

    \18\ This would appear true especially when, as posited here, 
there is substantial premerger market power upstream because, under 
such circumstances, vertical integration is a means by which a 
downstream firm can obtain lower input prices. As noted earlier 
(supra n.17 and accompanying text), this integration can be 
procompetitive whether it occurs via merger or internal expansion.
    \19\ One might attempt to differentiate my hypothetical from a 
situation involving an MVPD's acquisition of a program supplier by 
arguing that the former would yield two suppliers of the relevant 
type of programming, but the latter only one. But this conclusion 
would be incorrect. If we assume that the number of suppliers that 
can survive in equilibrium is determined by the magnitude of scale 
economies relative to the size of the market, and that the pre-entry 
market structure represented an equilibrium, then the existence of 
two program suppliers will be only a transitory phenomenon, and the 
market will revert to the equilibrium structure dictated by these 
technological considerations--that is, one supplier. Upstream 
integration by the MVPD merely replaces one program monopolist with 
another; but as noted above, under these circumstances vertical 
integration can yield substantial efficiencies.
---------------------------------------------------------------------------

    Third, it is far from clear that TCI's incentives to preclude entry 
into programming are the same as TW's.20 As an MVPD, TCI is harmed 
by the creation of entry barriers to new programming. Even if TW 
supplies it with TW programming at a competitive price, TCI is still 
harmed if program variety or innovation is diminished. On the other 
hand, as a part owner of TW, TCI benefits if TW's programming earns 
supracompetitive returns on sales to other MVPDs. TCI's net incentive 
to sponsor new programming depends on which factor dominates--its 
interest in program quality and innovation, or its interest in 
supracompetitive returns on TW programming. All of the analyses of 
which I am aware concerning this tradeoff show that TCI's ownership 
interest in TW would have to increase substantially--far beyond what 
the current transaction contemplates, or what would be possible without 
a significant modification of TW's internal governance structure 
21--for TCI to have an incentive to deter entry by independent 
programmers. TCI's incentive to encourage programming

[[Page 50322]]

entry is intensified, moreover, by the fact that it has undertaken an 
ambitious expansion program to digitize its system and increase 
capacity to 200 channels. Because this appears to be a costly process, 
and because not all cable customers can be expected to purchase digital 
service, the cost per buyer--and thus the price--of digital services 
will be fairly high. How can TCI expect to induce subscribers to buy 
this expensive service if, through programming foreclosure, it has 
restricted the quantity and quality of programming that would be 
available on this service tier? 22
---------------------------------------------------------------------------

    \20\ Even TW has mixed incentives to preclude programming entry. 
As a programmer allegedly in possession of market power, TW would 
wish to deter programming entry to protect this market power. But as 
a MVPD, TW--like any other MVPD--benefits from the creation of 
valuable new programming servics that it can sell to its 
subscribers. On net, however, it appears true that TW's incentives 
balance in favor of wishing to prevent entry.
    \21\ TW has a ``poison pill'' provision that would make it 
costly for TCI to increase its ownership of TW above 18 percent.
    \22\ Note too that there is an inverse relationship between 
TCI's ability to prevent programming entry and its incentives to do 
so. Much of the analysis in this case has emphasized that TCI's size 
(27 percent of cable households) gives it considerably ability to 
determine which programs succeed and which fail, and the logic of 
the proposed complaint is that TCI will exercise this ability so as 
to protect TW's market power in program sales to non-TCI MVPDs. But 
although increases in TCI's size may increase its ability to 
preclude entry into programming, at the same time such increases 
reduce TCI's incentives to do so. The reasoning is simple: as the 
size of the non-TW/non-TCI cable market shrinks, the 
supracompetitive profits obtained from sales of programming to this 
sector also shrink. Simultaneously, the harm from TCI (as a MVPD) 
from precluding the entry of new programmers increases with TCI's 
subscriber share. (In the limit--i.e., if TCI and TW controlled all 
cable households--there would be non non-TW/non-TCI MVPDs, no sales 
of programming to such MVPDs, and thus no profits to be obtained 
from such sales.) Any future increases in TCI's subscriber share 
would, other things held constant, reduce is incentives to 
``foreclose;'' entry by independent programmers.
---------------------------------------------------------------------------

    The foregoing illustrates why foreclosure theories fell into 
intellectual disrepute: because of their inability to articulate how 
vertical integration harms competition and not merely competitors. The 
majority's analysis of the Program Service Agreement (``PSA'') 
illustrates this perfectly. The PSA must be condemned, we are told, 
because a TCI channel slot occupied by a TW program is a channel slot 
that cannot be occupied by a rival programmer. As Bork noted, this is a 
tautology, not a theory of competitive harm.23 It is a theory of 
harm to competitors--competitors that cannot offer TCI inducements 
(such as low prices) sufficient to cause TCI to patronize them rather 
than TW.
---------------------------------------------------------------------------

    \23\ /Bork, The Antitrust Paradox, supra n.9, at 304.
---------------------------------------------------------------------------

    All of the majority's vertical theories in this case ultimately can 
be shown to be theories of harm to competitors, not to competition. 
Thus, I have not been persuaded that the vertical aspects of this 
transaction are likely to diminish competition substantially. Even were 
I to conclude otherwise, however, I could not support the 
extraordinarily regulatory remedy contained in the proposed order, two 
of whose provisions merit special attention: (1) The requirement that 
TW sell programming to MVPDs seeking to compete with TW cable systems 
at a price determined by a formula contained in the order; and (2) the 
requirement that TW carry at least one ``Independent Advertising-
Supported News and Information National Video Programming Service.''
    Under Paragraph VI of the proposed order, TW must sell Turner 
programming to potential entrants into TW cable markets at prices 
determined by a ``most favored nation'' clause that gives the entrant 
the same price--or, more precisely, the same ``carriage terms''--that 
TW charges the three largest MVPDs currently carrying this programming. 
As is well known, most favored nation clauses have the capacity to 
cause all prices to rise rather than to fall.24 But even putting 
this possibility aside, this provision of the order converts the 
Commission into a de facto price regulator--a task, as I have noted on 
several previous occasions, to which we are ill-suited.25 During 
the investigation third parties repeatedly informed me of the 
difficulty that the Federal Communications Commission has encountered 
in attempting to enforce its nondiscrimination regulations. The FTC's 
regulatory burden would be lighter only because, perversely, our 
pricing formula would disallow any of the efficiency-based rationales 
for differential pricing recognized by the Congress and the FCC.26
---------------------------------------------------------------------------

    \24\ See, e.g., RxCare of Tennessee, Inc., et al., Docket No. C-
3664, 5 Trade Reg. Rep. (CCH) para. 23,957 (June 10, 1996); see also 
Cooper and Fries, ``The most-favored-nation pricing policy and 
negotiated prices,'' 9 int'l J. Ind. Org. 209 (1991). The logic is 
straightforward: if by cutting price to another (noncompeting) MVPD 
TW is compelled also to cut price to downstream competitors, the 
incentives to make this price cut is diminished. Although this 
effect might be small in the early years of the order (when the 
gains to TW from cutting price to a large independent MVPD might 
swamp the losses from cutting price to its downstream competitors) 
its magnitude will grow over the order's 10-year duration, as TW 
cable systems confront greater competition.
    \25\ See my dissenting statements in Silicon Graphics and 
Waterous/Hale, supra n.13.
    \26\ Mirroring the applicable statute, the FCC rules governing 
the sale of cable programming by vertically integrated programmers 
to nonaffiliated MVPDs allow for price differentials reflecting, 
inter alia, ``economies of scale, cost savings, or other direct and 
legitimate economic benefits reasonably attributable to the number 
of subscribers served by the distributor.'' 47 U.S.C. 
Sec. 548(c)(2)(B)(iii); 47 C.F.R. 76.1002(b)(3).
---------------------------------------------------------------------------

    Most objectionable is Paragraph IX of the order, the ``must carry'' 
provision that compels TW to carry an additional 24-hour news service. 
I am baffled how the Commission has divined that consumers would prefer 
that a channel of supposedly scarce cable capacity be used for a second 
news service, instead of for something else. More generally, although 
remedies in horizontal merger cases sometimes involve the creation of a 
new competitor to replace the competition eliminated by the 
transaction, no competitor has been lost in the present case. Indeed, 
there is substantial entry already occurring in this segment of the 
programming market, notwithstanding the severe ``difficulty'' of 
entering the markets alleged in the complaint.27 Obviously, the 
incentives to buy programming from an independent vendor are diminished 
(all else held constant) when a distributor integrates vertically into 
programming. This is true whether the integration is procompetitive or 
anticompetitive on net, and whether the integration occurs via merger 
or via de novo entry.28 I could no more support a must-carry 
provision for TW as a result of its acquisition of CNN than I could 
endorse a similar requirement to remedy the ``anticompetitive 
consequences'' of de novo integration by TW into the news business.
---------------------------------------------------------------------------

    \27\ The Microsoft/NBC joint venture, MSNBC, already is in 
service; the Fox entry apparently will also be operational shortly.
    \28\ The premise inherent in this provision of the order is that 
TW can ``foreclose'' independent programming entry in independently 
(i.e., without the cooperation of TCI, whose incentives to sponsor 
independent programming are ostensibly preserved by the stock 
ownership cap contained in Paragraphs II and III of the order). 
Given that TW has only 17 percent of total cable subscribership, I 
find this proposition fanciful.
---------------------------------------------------------------------------

[FR Doc. 96-24599 Filed 9-24-96; 8:45 am]
BILLING CODE 6750-01-P