[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Notices]
[Pages 63861-63870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30550]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Westinghouse Electric Corporation and 
Infinity Broadcasting Corporation; Proposed Final Judgment and 
Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final 
Judgment, Stipulation, and Competitive Impact Statement have been filed 
with the United States District Court for the District of Columbia in 
United States v. Westinghouse Electric Corporation and Infinity 
Broadcasting Corporation, Civil Action No. 96-02563. The proposed Final 
Judgment is subject to approval by the Court after the expiration of 
the statutory 60-day public comment period and compliance with the 
Antitrust Procedures and Penalties Act. 15 U.S.C. Sec. 16(b)-(h).
    The United States filed a civil antitrust Complaint on November 12, 
1996, alleging that the proposed acquisition of the Infinity 
Broadcasting Corporation (``Infinity'') by the Westinghouse Electric 
Corporation (``Westinghouse'') would violate Section 7 of the Clayton 
Act, 15 U.S.C. Sec. 18. The Complaint alleges that Westinghouse and 
Infinity own and operate numerous radio stations throughout the United 
States, and that they each own and operate stations in the 
Philadelphia, Pennsylvania and Boston, Massachusetts metropolitan 
areas. This acquisition would give Westinghouse control over more than 
40 percent of the radio advertising revenues in those metropolitan 
areas, as well as a substantial amount of control over access to 
certain demographic groups of radio listeners targeted by advertisers 
in those metropolitan areas. As a result, the combination of these 
companies would substantially lessen competition in the sale of radio 
advertising time in the Philadelphia and Boston metropolitan areas.
    The prayer for relief seeks: (a) Adjudication that Westinghouse's 
proposed acquisition of Infinity would violate Section 7 of the Clayton 
Act; (b) preliminary and permanent injunctive relief preventing the 
consummation of the proposed acquisition; (c) an award to the United 
States of the costs of this action; and (d) such other relief as is 
proper.
    Shortly before this suit was filed, a proposed settlement was 
reached that permits Westinghouse to complete its acquisition of 
Infinity, yet preserves competition in the markets in which the 
transaction would raise significant competitive concerns. A Stipulation 
and proposed Final Judgment embodying the settlement were filed with 
the Court at the same time the Complaint was filed.
    The proposed Final Judgment orders Westinghouse to divest WMMR-FM, 
currently owned by Westinghouse, and WBOS-FM, currently owned by 
Infinity, in Philadelphia and Boston, respectively. Unless the United 
States grants an extension of time, Westinghouse must divest these 
radio stations within six months after the filing of the Final 
Judgment, or within five (5) business days after notice of entry of the 
Final Judgment, whichever is later. If Westinghouse does not divest 
these stations within the divestiture period, the Court may appoint a 
trustee to sell the assets. The proposed Final Judgment also requires 
the defendants to ensure that, until the divestitures mandated by the 
Final Judgment have been accomplished, WMMR-FM and WBOS-FM will be 
operated independently as viable, ongoing businesses, and kept separate 
and apart from Westinghouse's and Infinity's other Philadelphia and 
Boston radio stations, respectively. Further, the proposed Final 
Judgment requires the defendants to give plaintiff prior notice 
regarding future radio station acquisitions and future Joint Sales 
Agreements, Local Marketing Agreements or comparable arrangements in 
Philadelphia and Boston.
    A Competitive Impact Statement filed by the United States describes 
the Complaint, the proposed Final Judgment, and remedies available to 
private litigants.
    Public comment is invited within the statutory 60-day comment 
period. Such comments, and the responses thereto, will be published in 
the Federal Register and filed with the Court. Written comments should 
be directed to Craig W. Conrath, Chief, Merger Task Force, Antitrust 
Division, 1401 H Street, NW, Suite 4000, Washington, D.C. 20530 
(telephone: 202-307-0001). Copies of the Complaint, Stipulation, 
proposed Final Judgment and Competitive Impact Statement are available 
for inspection in Room 215 of the Antitrust Division, Department of 
Justice, 325 7th St., NW, Washington, D.C. 20530 (telephone: 202-514-
2481), and at the office of the Clerk of the United States District 
Court for the District of Columbia, Third Street and Constitution 
Avenue, NW, Washington, D.C. 20001.
    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.
Constance K. Robinson,
Director of Operation, Antitrust Division.

Stipulation and Order

    It is stipulated by and between the undersigned parties, by their 
respective attorneys, as follows:
    (1) The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto, and venue of this action is 
proper in the United States District Court for the District of 
Columbia.
    (2) The defendants have agreed to waive the requirements of Fed. R. 
Civ. P. 4 and to accept service of the Complaint herein by first class 
mail, addressed to their undersigned counsel of record.
available to it as a result of such delay, provided that: (i) 
Defendants have entered into one or more definitive agreements to 
divest the WMMR-FM Assets and the WBOS-FM Assets, as defined in the 
Final Judgment, and such agreements and the Acquirer or Acquires have 
been approved by plaintiff; (ii) All papers necessary to secure any 
governmental approvals and/or rulings to effectuate such divestitures 
(including but not limited to FCC, SEC and IRS approvals or rulings) 
have been filed with the appropriate agency; (iii) Receipt of such 
approvals are the only

[[Page 63862]]

closing conditions that have not been satisfied or waived; and (iv) 
Defendants have demonstrated that neither they nor the prospective 
Acquirer or Acquirers are responsible for any such delay.
    (6) In the event the United States withdraws its consent, as 
provided in paragraph 3 above, or if the proposed Final Judgment is not 
entered, this Stipulation shall be of no effect whatever, and the 
making of this Stipulation shall be without prejudice to any party in 
this or any other proceeding.
    (7) The defendants represent that the divestitures ordered in the 
proposed Final Judgment can and will be made, and that the defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
therein.

    Dated: November 12, 1996.

    For Plaintiff United States of America:
Dando B. Cellini,
U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401 
H Street, N.W., Suite 4000, Washington, D.C. 20005, (202) 307-0829.
    For Defendant Westinghouse Electric Corporation:
Joe Sims,
Jones, Day, Reavis & Pogue, 1450 G Street, N.W., Washington, D.C. 
20005, (202) 879-3939.
    For Defendant Infinity Broadcasting Corporation:
Daniel M. Abuhoff,
Debevoise & Plimpton, 875 Third Avenue, New York, NY 10022, (212) 909-
6000.
    So Ordered:

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United States District Judge

Certificate of Service

    I, Dando B. Cellini, hereby certify that, on November 12, 1996, 
I caused the foregoing document to be served on defendants 
Westinghouse Electric Corporation and Infinity Broadcasting 
Corporation by having a copy mailed, first-class, postage prepaid, 
to:

Joe Sims, Jones, Day, Reavis & Pogue, 1450 G St., N.W., Washington, 
D.C. 20005, Counsel for Westinghouse Electric Corporation
Daniel M. Abuhoff, Debevoise & Plimpton, 875 Third Avenue, New York, NY 
10022, Counsel for Infinity Broadcasting Corporation

Dando B. Cellini.
    Whereas, plaintiff, the United States of America, having filed its 
Complaint herein on November 12, 1996, and defendants, by their 
respective attorneys, having consented to the entry of this Final 
Judgment without trial or adjudication of any issue of fact or law 
herein, and without this Final Judgment constituting any evidence 
against or an admission by any party with respect to any issue of law 
or fact herein;
    And whereas, defendants have agreed to be bound by the provisions 
of this Final Judgment pending its approval by the Court;
    And whereas, the purpose of this Final Judgment is prompt and 
certain divestiture of certain assets to assure that competition is not 
substantially lessened;
    And whereas, plaintiff requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint:
    And whereas, defendants have represented to plaintiff that the 
divestitures ordered herein can and will be made and that defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
below;
    Now, therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
decreed as follows:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of this action. The Complaint states a claim 
upon which relief may be granted against defendants Westinghouse and 
Infinity, as hereinafter defined, under Section 7 of the Clayton Act, 
as amended (15 U.S.C. Sec. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Westinghouse'' means defendant Westinghouse Electric 
Corporation, a Pennsylvania corporation with its headquarters in 
Pittsburgh, Pennsylvania, and includes its successors and assigns, its 
subsidiaries (including CBS Inc.), and directors, officers, managers, 
agents and employees acting for or on behalf of Westinghouse.
    B. ``Infinity'' means defendant Infinity Broadcasting Corporation, 
a Delaware corporation with its headquarters in New York, New York, and 
includes its successors and assigns, its subsidiaries, and directors, 
officers, managers, agents and employees acting for or on behalf of 
Infinity.
    C. ``WMMR-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WMMR 93.3 FM radio station in 
Philadelphia, Pennsylvania, including but not limited to: all real 
property (owned and leased) used in the operation of that station; all 
broadcast equipment, personal property, inventory, office furniture, 
fixed assets and fixtures, materials, supplies and other tangible 
property used in the operation of that station; all licenses, permits 
and authorizations and applications therefor issued by the Federal 
Communications Commission (``FCC'') and other governmental agencies 
relating to that station; all contracts, agreements, leases and 
commitments of Westinghouse pertaining to that station and its 
operations; all trademarks, service marks, trade names, copyrights, 
patents, slogans, programming materials and promotional materials 
relating to that station; and all logs and other records maintained by 
Westinghouse or that station in connection with its business. The WMMR-
FM Assets do not include any trademarks, service marks, trade names, 
copyrights, patents, slogans, programming materials and promotional 
materials created by Westinghouse, or its subsidiary CBS Inc., and used 
by other radio stations, not solely by WMMR-FM. For all assets used 
jointly by WMMR and KYW-AM or KYW TV prior to the divestiture required 
by this Final Judgment, defendants shall propose to the plaintiff, 
within 90 days of the filing of this Final Judgment, a plan for 
dividing such assets in a way that, in plaintiff's sole discretion, 
does not impair WMMR's ability to attract potential acquirers. Upon 
approval of the plan by plaintiff, the term ``WMMR-FM Assets'' shall 
include only those assets allocated under the plan to WMMR.
    D. ``WBOS-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WBOS 92.9 FM radio station in 
Boston, Massachusetts, including but not limited to: all real property 
(owned and leased) used in the operation of that station; all broadcast 
equipment, personal property, inventory, office furniture, fixed assets 
and fixtures, materials, supplies and other tangible property used in 
the operation of that station; all licenses, permits and authorizations 
and applications therefor issued by the Federal Communications 
Commission (``FCC'') and other governmental agencies relating to that 
station; all contracts, agreements, leases and commitments of Infinity 
pertaining to that station and its operations; all trademarks, service 
marks, trade names, copyrights, patents, slogans, programming materials 
and promotional materials relating to that station; and all logs and 
other records maintained by Infinity or that station in connection with 
its business. For all assets used

[[Page 63863]]

jointly by WBOS and WOAZ-FM prior to the divestiture required by this 
Final Judgment, defendants shall propose to plaintiff, within 90 days 
of the filing of this Final Judgment, a plan for dividing such assets 
in a way that, in the sole discretion of plaintiff, does not impair 
WBOS's ability to attract potential acquirers. Upon approval of the 
plan by plaintiff, the term ``WBOS-FM Assets'' shall include only those 
assets allocated under the plan to WBOS.
    E. ``Philadelphia Area'' means the Philadelphia, Pennsylvania Metro 
Survey Area as identified by The Arbitron Radio Market Report for 
Philadelphia (Summer 1996), which is made up of the following eight 
counties: Bucks, Montgomery, Chester, Philadelphia, Delaware, 
Burlington, Camden and Gloucester.
    F. ``Boston Area'' means the Boston, Massachusetts Metro Survey 
Area as identified by The Arbitron Radio Market Report for Boston 
(Summer 1996), which is made up of the following five counties: Essex, 
Middlesex, Suffolk, Norfolk and Plymouth.
    G. ``Westinghouse Radio Station'' means any radio station owned by 
Westinghouse or Infinity and licensed to a community in either the 
Philadelphia Area or the Boston Area, other than WMMR-FM in the 
Philadelphia Area and WBOS-FM in the Boston Area.
    H. ``Non-Westinghouse Radio Station'' means any radio station 
licensed to a community in either the Philadelphia Area or the Boston 
Area that is not a Westinghouse Radio Station.
    I. ``Acquirer'' means the entity or entities to whom defendants 
divest the WMMR-FM Assets and/or the WBOS-FM Assets under this Final 
Judgment.

III. Applicability

    A. The provisions of this Final Judgment apply to each of the 
defendants, their successors and assigns, their subsidiaries, 
affiliates, directors, officers, managers, agents and employees, and 
all other persons in active concert or participation with any of them 
who shall have received actual notice of this Final Judgment by 
personal service or otherwise.
    B. Each defendant shall require, as a condition of the sale or 
other disposition of all or substantially all of the assets used in its 
business of owning and operating its portfolio of radio stations in 
either the Philadelphia Area or the Boston Area, that the acquiring 
party or parties agree to be bound by the provisions of this Final 
Judgment; provided, however, that defendants need not obtain such an 
agreement from an Acquirer, as defined herein.

IV. Divestiture of WMMR-FM and WBOS-FM

    A. Defendants are hereby ordered and directed, in accordance with 
the terms of this Final Judgment, within six (6) months after the 
filing of this Final Judgment, or within five (5) business days after 
notice of entry of this Final Judgment, whichever is later, to divest 
the WMMR-FM Assets and the WBOS-FM Assets to one or two Acquirers 
acceptable to plaintiff, in its sole discretion. Unless plaintiff 
otherwise consents in writing, the divestitures pursuant to Section IV 
of this Final Judgment, or by the trustee appointed pursuant to Section 
V, shall be accomplished in such a way as to satisfy plaintiff, in its 
sole discretion, that the WMMR-FM Assets and the WBOS-FM Assets can and 
will be used by an Acquirer or Acquirers as viable, ongoing commercial 
radio businesses. The divestitures, whether pursuant to Section IV or V 
of this Final Judgment, shall be made (i) to an Acquirer or Acquirers 
that, in plaintiff's sole judgment, has or have the capability and 
intent of competing effectively, and has or have the managerial, 
operational and financial capability to compete effectively as radio 
station operators in the Philadelphia Area and the Boston Area; and 
(ii) pursuant to agreements the terms of which shall not, in the sole 
judgment of plaintiff, interfere with the ability of the purchaser(s) 
to compete effectively.
    B. Defendants agree to use their best efforts to divest the WMAR-FM 
Assets and the WBOS-FM Assets, and to obtain all regulatory approvals 
necessary for such divestitures, as expeditiously as possible. 
Plaintiff, in its sole discretion, may extend the time period for the 
divestitures for two (2) additional thirty (30) day periods of time, 
not to exceed sixty (60) calendar days in total.
    C. In accomplishing the divestitures ordered by this Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability for sale of the WMMR-FM Assets and the WBOS-FM 
Assets. Defendants shall inform any person making a bona fide inquiry 
regarding a possible purchase that the sale is being made pursuant to 
this Final Judgment and provide such person with a copy of the Final 
Judgment. Defendants shall make known to any person making an inquiry 
regarding a possible purchase of the WMMR-FM Assets and/or the WBOS-FM 
Assets that the assets described in Section II (C) and (D) are being 
offered for sale and that the WMMR-FM Assets and the WBOS-FM Assets may 
be purchased as a two-station package or sold separately to different 
purchasers. Defendants shall also offer to furnish to all bona fide 
prospective purchasers, subject to customary confidentiality 
assurances, all information regarding the WMMR-FM Assets and the WBOS-
FM Assets customarily provided in a due diligence process, except such 
information that is subject to attorney-client privilege or attorney 
work-product privilege. Defendants shall make available such 
information to plaintiff at the same time that such information is made 
available to any other person.
    D. Defendants shall permit bona fide prospective purchasers of the 
WMMR-FM Assets and/or the WBOS-FM Assets to have access to personnel 
and to make such inspection of the assets, and any and all financial, 
operational or other documents and information customarily provided as 
part of a due diligence process.
    E. Defendants shall not interfere with any efforts by any Acquirer 
or Acquirers to employ the general manager or any employee of WMMR-FM 
or WBOS-FM.

V. Appointment of Trustee

    A. In the event that defendants have not divested the WMMR-FM 
Assets and the WBOS-FM Assets within the time periods specified in 
Section IV above, the Court shall appoint, on application of plaintiff, 
a trustee selected by plaintiff to effect the divestiture of the 
assets.
    B. After the trustee's appointment has become effective, only the 
trustee shall have the right to sell the WMMR-FM Assets and the WBOS-FM 
Assets. The trustee shall have the power and authority to accomplish 
the divestitures at the best price then obtainable upon a reasonable 
effort by the trustee, subject to the provisions of Section V and VII 
of this Final Judgment and consistent with FCC regulations, and shall 
have other powers as the Court shall deem appropriate. Subject to 
Section V (C) of this Final Judgment, the trustee shall have the power 
and authority to hire at the cost and expense of defendants any 
investment bankers, attorneys or other agents reasonably necessary in 
the judgment of the trustee to assist in the divestitures, and such 
professionals or agents shall be solely accountable to the trustee. The 
trustee shall have the power and authority to accomplish the 
divestitures at the earliest possible time to a purchaser acceptable to 
plaintiff, in its sole judgment, and shall have such other powers as 
this Court shall deem appropriate. Defendants shall not object to the 
sale of the WMMR-FM and/or the WBOS-FM Assets by the trustee on any

[[Page 63864]]

grounds other than the trustee's malfeasance. Any such objection by 
defendants must be conveyed in writing to plaintiff and the trustee no 
later than fifteen (15) calendar days after the trustee has provided 
the notice required under Section VIII of this Final Judgment.
    C. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the Court may prescribe, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting, including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining monies shall be paid to defendants and the trustee's services 
shall then be terminated. The compensation of such trustee and of any 
professionals and agents retained by the trustee shall be reasonable in 
light of the value of the divestiture and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestitures and the speed with which they are accomplished.
    D. Defendants shall take no action to interfere with or impede the 
trustee's accomplishment of the divestiture of the WMMR-FM Assets and 
the WBOS-FM Assets, and shall use their best efforts to assist the 
trustee in accomplishing the required divestitures, including best 
efforts to effect all necessary regulatory approvals. Subject to a 
customary confidentiality agreement, the trustee shall have full and 
complete access to the personnel, books, records and facilities related 
to the WMMR-FM Asssets and the WBOS-FM Assets, and defendants shall 
develop such financial or other information as may be necessary to the 
divestiture of the WMMR-FM Assets and WBOS-FM Assets. Defendants shall 
permit prospective purchasers of the WMMR-FM Assets and WBOS-FM Assets 
to have access to personnel and to make such inspection of physical 
facilities and any and all financial, operational or other documents 
and information as may be relevant to the divestitures required by this 
Final Judgment.
    E. After its appointment becomes effective, the trustee shall file 
monthly reports with defendants, plaintiff and the Court, setting forth 
the trustee's efforts to accomplish divestiture of the WMMR-FM Assets 
and WBOS-FM Assets as contemplated under this Final Judgment; provided, 
however, that to the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the WMMR-FM Assets and WBOS-FM 
Assets, and shall describe in detail each contact with any such person 
during that period. The trustee shall maintain full records of all 
efforts made to divest these operations.
    F. Within six (6) months after its appointment has become 
effective, if the trustee has not accomplished the divestiture required 
by Section IV of this Final Judgment, the trustee shall promptly file 
with the Court a report setting forth (1) the trustee's efforts to 
accomplish the required divestiture, (2) the reasons, in the trustee's 
judgment, why the required divestitures have not been accomplished, and 
(3) the trustee's recommendations; provided, however, that to the 
extent such reports contain information that the trustee deems 
confidential, such reports shall not be filed in the public docket of 
the Court. The trustee shall at the same time furnish such reports to 
defendants and plaintiff, who shall each have the right to be heard and 
to make additional recommendations. The Court shall thereafter enter 
such orders as it shall deem appropriate to accomplish the purpose of 
this Final Judgment, which shall, if necessary, include extending the 
term of the trustee's appointment.

VI. Preservation of Assets/Hold Separate

    Until the divestiture of the WMMR-FM Assets and the WBOS-FM Assets 
required by Section IV of the Final Judgment has been accomplished:
    A. Defendants shall take all steps necessary to ensure that WMMR-FM 
is maintained as a separate, independent, ongoing, economically viable 
and active competitor to defendants' other stations in Philadelphia and 
that, except as necessary to comply with Section IV and paragraphs C 
through F of this Section of the Final Judgment, the management of said 
station, including the performance of decision-making functions 
regarding marketing and pricing, will be kept separate and apart from, 
and not influenced by, defendants.
    B. Defendants shall take all steps necessary to ensure that WBOS-FM 
is maintained as a separate, independent, ongoing, economically viable 
and active competitor to defendants' other stations in Boston and that, 
except as necessary to comply with Section IV and paragraphs C through 
F of this Section of the Final Judgment, the management of said 
station, including the performance of decision-making functions 
regarding marketing and pricing, will be kept separate and apart from, 
and not influenced by, defendants.
    C. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WMMR-FM, and shall maintain at 
1995 or previously approved levels for 1996, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    D. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WBOS-FM, and shall maintain at 
1995 or previously approved levels for 1996, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    E. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WMMR-FM are fully maintained. WMMR-FM's 
sales and marketing employees shall not be transferred or reassigned to 
any other station except for transfer bids initiated by employees 
pursuant to defendants' regular established job posting polices, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    F. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WBOS-FM are fully maintained. WBOS-FM's 
sales and marketing employees shall not be transferred or reassigned to 
any other station, except for transfer bids initiated by employees 
pursuant to defendants' regular, established job posting polices, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    G. Defendants shall not, except as part of a divestiture approved 
by plaintiff, sell any WMMR-FM Assets or WBOS-FM Assets.
    H. Defendants shall take no action that would jeopardize the sale 
of the WMMR-FM Assets or the WBOS-FM Assets.
    I. Defendants shall each appoint a person or persons to oversee the 
assets to be held separate and who will be responsible for defendants' 
compliance with Section VI of this Final Judgment.
    Within two (2) business days following execution of a binding 
agreement to divest, including all contemplated ancillary agreement 
(e.g., financing), to effect in whole or in part, any proposed 
divestiture pursuant to Section IV or V of this Final Judgment,

[[Page 63865]]

defendants or the trustee, whichever is then responsible for effecting 
the divestiture, shall notify plaintiff of the proposed divestiture. If 
the trustee is responsible, it shall similarly notify defendants. The 
notice shall set forth the details of the proposed transaction and list 
the name, address and telephone number of each person not previously 
identified who offered to, or expressed an interest in or a desire to, 
acquire any ownership interest in the WMMR-FM Assets or the WBOS-FM 
Assets, together with full details of same. Within fifteen (15) 
calendar days of receipt by plaintiff of such notice, plaintiff may 
request from defendants, the proposed purchaser or purchasers, any 
other third party, or the trustee, if applicable, additional 
information concerning the proposed divestiture, the proposed 
purchaser, and any other potential purchaser. Defendants and the 
trustee shall furnish any additional information requested within 
fifteen (15) calendar days of the receipt of the request. Within thirty 
(30) calendar days after receipt of the notice or within twenty (20) 
calendar days after plaintiff has been provided the additional 
information, whichever is later, plaintiff shall provide written notice 
of defendants and the trustee, if there is one, stating whether or not 
it objects to the proposed divestiture. If plaintiff fails to object 
within the period specified, or if plaintiff provides written notice to 
defendants and the trustee, if there is one, that it does not object, 
then the divestiture may be consummated, subject only to defendants' 
limited right to object to the sale under Section V(B) of this Final 
Judgment. A divestiture proposed under Section IV shall not be 
consummated if plaintiff objects to the identity of the proposed 
purchaser or purchasers. Upon objection by plaintiff, or by defendants 
under the proviso in Section V(B), a divestiture proposed under Section 
V shall not be consummated unless approved by the Court.

VIII. Financing

    Defendants are ordered and directed not to finance all or any part 
of any purchase by an Acquirer made pursuant to Sections IV or V of 
this Final Judgment without the prior written consent of plaintiff.

IX. Affidavits

    A. Within twenty (20) calendar days of the filing of this Final 
Judgment and every thirty (30) calendar days thereafter until the 
divestiture has been completed, whether pursuant to Section IV or 
Section V of this Final Judgment, Defendants shall deliver to plaintiff 
an affidavit as to the fact and manner of their compliance with Section 
IV or V of this Final Judgment. Each such affidavit shall include, 
inter alia, the name, address and telephone number of each person who, 
at any time after the period covered by the last such report, was 
contacted by defendants, or their representatives, made an offer to 
acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or made an inquiry about acquiring, any interest in the 
WMMR-FM Assets and/or the WBOS-FM Assets, and shall describe in detail 
each contact with any such person during that period. Each such 
affidavit shall also include a description of the efforts that 
defendants have taken to solicit a buyer or buyers for the WMMR-FM 
Assets and the WBOS-FM Assets.
    B. Within twenty (20) calendar days of the filing of this Final 
Judgment, defendants shall deliver plaintiff an affidavit which 
describes in reasonable detail all actions defendants have taken and 
all steps defendants have implemented on an on-going basis to preserve 
WMMR-FM and WBOS-FM pursuant to Section IV of this Final Judgment. 
Defendants shall deliver to plaintiff an affidavit describing any 
changes to the efforts and actions outlined in their earlier 
affidavit(s) filed pursuant to this Section within fifteen (15) 
calendar days after such change is implemented.
    C. Defendants shall preserve all records of all efforts made to 
preserve WMMR-FM and WBOS-FM and to divest the WMMR-FM Assets and the 
WBOS-FM Assets.

X. Notice

    A. Unless such transaction is otherwise subject to the reporting an 
waiting period requirements of the Hart-Scott-Antitrust Improvements 
Act of 1976, as amended, 15 U.S.C. Sec. 18a (the ``HSR Act''), 
defendants, without providing advance notification to the United States 
Department of Justice, shall not directly or indirectly:
    (1) acquire any assets of or any interest, including any financial, 
security, loan, equity or management interest, in any Non-Westinghouse 
Radio Station or any person affiliated with any such Station; provided, 
however, that defendants need not provide notice under this provision 
for any direct or indirect acquisition of equity of a Non-Westinghouse 
Radio Station that would result in defendants' holding no more than 
five percent of the total equity of the station; or
    (2) enter into any Joint Sales Agreements, Local Marketing 
Agreements or comparable arrangement with any Non-Westinghouse Radio 
Station.

Notification shall be provided to the United States Department of 
Justice in the same format as, and per the instructions relating to the 
Notification and Report Form set forth in the Appendix to Part 803 of 
Title 16 of the Code of Federal Regulations as amended, except that the 
information requested in Items 5-9 of the instructions must be provided 
only with respects to Westinghouse Radio Stations in the city 
implicated by the transaction giving rise to the notification 
obligation under this Section X. Notification shall be provided at 
least thirty (30) days prior to acquiring any such interest covered in 
(1) or (2) above, and shall include, beyond what may be required by the 
applicable instructions, the names of the principal representatives of 
the parties to the agreements who negotiated the agreement, and any 
management or strategic plans discussing the propose transaction. If 
within the 30-days period after notification, representatives of the 
Department make a written request for additional information, 
defendants shall not consummate the proposed transaction or agreement 
until twenty (20) days after submitting all such additional 
information. Early termination of the waiting periods in this paragraph 
may be requested and, where appropriate, granted in the same manner as 
is applicable under the requirements and provisions of the HSR Act and 
rules promulgated thereunder.
    B. This Section shall be broadly construed and any ambiguity or 
uncertainty regarding the filing of notice under this Section shall be 
resolved in favor of filing notice.

XI. Compliance Inspection

    For the purpose of determining of securing compliance with the 
Final Judgment and subject to any legally recognized privilege, from 
time to time:
    A. Duly authorized representatives of the plaintiff, including 
consultants and other persons retained by the plaintiff, shall, upon 
written request of the United States Attorney General, or of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to defendants made to the principal offices, be 
permitted:
    (1) Access during office hours of defendants to inspect and copy 
all books, ledgers, accounts, correspondence, memoranda and other 
records and documents in the possession or under the control of 
defendants, who may have counsel present, relating to any matters 
contained in this Final Judgment; and

[[Page 63866]]

    (2) Subject to the reasonable convenience of defendants and without 
restraint or interference from them, to interview directors, officers, 
employees and agents of defendants, who may have counsel present, 
regarding any such matters.
    B. Upon the written request of the United States Attorney General, 
or of the Assistant Attorney General in charge of the Antitrust 
Division, made to defendants' principal offices, defendants shall 
submit such written reports, under oath if requested, with respect to 
any of the matters contained in this Final Judgment as may be 
requested.
    C. No information or documents obtained by the means provided in 
this Section XI shall be divulged by any representative of plaintiff to 
any person other than a duly authorized representative of the Executive 
Branch of the United States, except in the course of legal proceedings 
to which plaintiff is a party (including grand jury proceedings), or 
for the purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by either 
defendant to plaintiff, and such defendant represents and identifies in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and such defendant marks each pertinent page 
of such material, ``Subject to claim of protection under Rule 26(c)(7) 
of the Federal Rules of Civil Procedure,'' then ten (10) calendar days' 
notice shall be given by plaintiff to such defendant prior to divulging 
such material in any legal proceeding (other than a grand jury 
proceeding) to which such defendant is not a party.

XII. Retention of Jurisdiction

    Jurisdiction is retained by this Court at any time for such further 
orders and directions as may be necessary or appropriate for the 
construction, implementation or modification of any provisions of this 
Final Judgment, for the enforcement of compliance herewith, and for the 
punishment of any violation hereof.

XIII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire upon the tenth anniversary of the date of its entry.

XIV. Public Interest

    Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

-----------------------------------------------------------------------

United States District Judge

COMPETITIVE IMPACT STATEMENT

    Plaintiff, the United States of America, pursuant to Section 2(b) 
of the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C. 
Sec. 16(b)-(h), files this Competitive Impact Statement relating to the 
proposed Final Judgment submitted for entry in this civil antitrust 
proceeding.

I. Nature and Purpose of the Proceeding

    Plaintiff filed a civil antitrust Complaint on November 12, 1996, 
alleging that the proposed acquisition of the Infinity Broadcasting 
Corporation (``Infinity'') by the Westinghouse Electric Corporation 
(``Westinghouse'') would violate Section 7 of the Clayton Act, 15 
U.S.C. Sec. 18. The Complaint alleges that Westinghouse and Infinity 
own and operate numerous radio stations throughout the United States, 
and that they each own and operate radio stations in the Philadelphia, 
Pennsylvania and Boston, Massachusetts metropolitan areas. This 
acquisition would give Westinghouse control over more than 40 percent 
of the radio advertising revenues in those metropolitan areas, as well 
as a substantial amount of control over access to certain demographic 
groups of radio listeners targeted by advertisers in those metropolitan 
areas. As a result, the combination of these companies would 
substantially lessen competition in the sale of radio advertising time 
in the Philadelphia and Boston metropolitan areas.
    The prayer for relief seeks: (a) adjudication that Westinghouse's 
proposed acquisition of Infinity would violate Section 7 of the Clayton 
Act; (b) preliminary and permanent injunctive relief preventing the 
consummation of the proposed acquisition; (c) an award to the United 
States of the costs of this action; and (d) such other relief as is 
proper.
    Shortly before this suit was filed, a proposed settlement was 
reached that permits Westinghouse to complete its acquisition of 
Infinity, yet preserves competition in the markets in which the 
transaction would raise significant competitive concerns. A Stipulation 
and proposed Final Judgment embodying the settlement were filed with 
the Court at the same time the Complaint was filed.
    The proposed Final Judgment orders Westinghouse to divest WMMR-FM, 
currently owned by Westinghouse, and WBOS-FM, currently owned by 
Infinity, in Philadelphia and Boston, respectively. Unless the United 
States grants an extension of time, Westinghouse must divest these 
radio stations within six months after the filing of the Final 
Judgment, or within five (5) business days after notice of entry of the 
Final Judgment, whichever is later. If Westinghouse does not divest 
these stations within the divestiture period, the Court may appoint a 
trustee to sell the assets. The proposed Final Judgment also requires 
the defendants to ensure that, until the divestitures mandated by the 
Final Judgment have been accomplished, WMMR-FM and WBOS-FM will be 
operated independently as viable, ongoing businesses, and kept separate 
and apart from Westinghouse's and Infinity's other Philadelphia and 
Boston radio stations, respectively. Further, the proposed Final 
Judgment requires the defendants to give plaintiff prior notice 
regarding future radio station acquisitions in Philadelphia and Boston.
    The plaintiff and the defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

II. The Alleged Violation

A. The Defendants

    Westinghouse is a Pennsylvania corporation headquartered in 
Pittsburgh, Pennsylvania. It currently owns, through its subsidiary CBS 
Inc., 41 radio stations in 13 metropolitan areas across the United 
States, including four located in the Philadelphia metropolitan area 
and two located in the Boston metropolitan area. Westinghouse's four 
radio stations in the Philadelphia area are KYW-AM, WMMR-FM, WOGL-FM 
and WPHT-AM; its two radio stations in the Boston area are WBZ-AM and 
WODS-FM. In 1995, its revenues from its Philadelphia stations were 
appropriately $55,300,000, and its revenues from its Boston stations 
were approximately $26,600,000.
    Infinity is a Delaware corporation headquartered in New York, New 
York. Infinity owns 42 radio stations in 13 metropolitan areas across 
the United States, including two located in the Philadelphia 
metropolitan area and four

[[Page 63867]]

located in the Boston metropolitan area. Infinity's two radio stations 
in the Philadelphia area are WYSP-FM and WIP-AM; its four stations in 
the Boston area are WBCN-FM, WZLA-FM, WBOS-FM and WOAZ-FM. In 1995, its 
revenues from its Philadelphia stations were approximately $31,500,000, 
and its revenues from the Boston stations were approximately 
$46,000,000.

B. Description of the Events Giving Rise to the Alleged Violation

    On June 20, 1996, Westinghouse agreed to purchase Infinity for 
approximately $4.9 billion. As is more fully discussed below, 
Westinghouse would control more than 40 percent of the radio 
advertising revenues in Philadelphia and in Boston, and could exercise 
substantial control over access to certain target audiences sought by 
advertisers in those metropolitan areas. The proposed acquisition by 
Westinghouse of Infinity, and the threatened loss of competition that 
would be caused thereby, precipitated the Government's suit.

C. Anticompetitive Consequences of the Proposed Merger

1. Sale of Radio Advertising Time in the Philadelphia and Boston MSAs
    The Complaint alleges that the provision of advertising time on 
radio stations serving the Philadelphia, Pennsylvania Metro Survey Area 
(``MSA'') and the Boston, Massachusetts MSA each constitute a line of 
commerce and section of the country, of relevant market, for antitrust 
purposes. These MSAs are the standard geographical units for which 
Arbitron furnishes radio stations, advertisers and advertising agencies 
in Philadelphia and Boston with data to aid in evaluating radio 
audience size and composition. Local and national advertising that is 
placed on radio stations within the Philadelphia and Boston MSAs is 
aimed at reaching listening audiences in those MSAs, and radio stations 
outside of those MSAs do not provide effective access to those 
audiences. Thus, advertisers would not buy enough advertising time from 
radio stations located outside of the Philadelphia MSA to defeat a 
small but significant non-transitory increase in radio advertising 
prices within that MSA. Likewise, advertisers would not buy enough 
advertising time from radio stations located outside of the Boston MSA 
to defeat a small but significant non-transitory increase in radio 
advertising prices within that MSA.
    Radio advertising time is sold by radio stations directly or 
through their national representatives. Radio stations generate almost 
all of their revenues from the sale of advertising time to local and 
national advertisers.
    Many local and national advertisers purchase radio advertising time 
in Philadelphia and Boston because they find such advertising 
preferable to advertising in other media to meet certain of their 
specific needs. For such advertisers, radio time: may be less expensive 
and, on a per-dollar basis, more cost-efficient than other media at 
reaching the advertiser's target audience (individuals most likely to 
purchase the advertiser's products of services); may reach target 
audiences that cannot be reached as effectively through other media; or 
may offer promotional opportunities to advertisers that they cannot 
exploit as effectively using other media. For these reasons, may local 
and national advertisers in Philadelphia and Boston who purchase radio 
advertising time view radio either as a necessary advertising medium 
for them, or as a necessary advertising complement to other media.
    Although some local and national advertisers may switch some of 
their advertising to other media rather than absorb a price increase in 
radio advertising time in Philadelphia and Boston, the existence of 
such advertisers would not prevent radio stations from profitably 
raising their prices a small but significant amount. At a minimum, 
stations could profitably raise prices to those advertisers who view 
radio either as a necessary advertising medium for them, or as a 
necessary advertising complement to other media. Radio stations, which 
negotiate prices individually with advertisers, can identify those 
advertisers with strong radio preferences. Consequently, radio stations 
can charge different advertisers different rates. Because of this 
ability price discriminate between different customers, radio stations 
may charge higher prices to advertisers that view radio as particularly 
effective for their needs, while maintaining lower prices for other 
advertisers.
2. Harm to Competition
    The Complaint alleges that Westinghouse's proposed acquisition of 
Infinity would lessen competition substantially in the provision of 
radio advertising time in the Philadelphia and Boston MSAs. 
Westinghouse presently controls approximately 28 percent of all radio 
advertising revenues in Philadelphia and approximately 15 percent of 
all radio advertising revenues in Boston. Infinity presently controls 
approximately 16 percent of all radio advertising revenues in 
Philadelphia and more than 25 percent of all radio advertising revenues 
in Boston. Westinghouse's market shares would rise to approximately 45 
percent in Philadelphia and to more than 40 percent in Boston after the 
proposed merger. According to the Herfindahl-Hirschman Index (``HHI''), 
a widely-used measure of market concentration defined and explained in 
Exhibit A annexed hereto, the pre-merger HHI in Philadelphia is 
approximately 1876, which would rise to 2800 after the merger, with a 
change of about 924. In Boston, the pre-,merger HHI is approximately 
1875, which would rise to 2638 after the merger, with a change of about 
763. These substantial increases in concentration are likely to reduce 
competition and lead to higher prices and lower quality of service in 
each of these markets.
    Advertisers select radio stations to reach a large percentage of 
their target audience based upon a number of factors, including, inter 
alia, the size of the station's audience and whether the 
characteristics of its audience have a high correlation to the target 
audience of the advertisers. If a number of stations efficiently reach 
that target audience, advertisers benefit from the competition among 
such stations, which leads to better prices and services. Today, 
several Westinghouse and Infinity stations compete head-to-head to 
reach the same audiences and, for many local and national advertisers 
buying time in Philadelphia and Boston, they are close substitutes for 
each other based on their specific audience characteristics. The 
proposed merger would eliminate this competition, most critically 
affecting advertisers seeking to reach male listeners between the ages 
of 18 and 54 in Philadelphia and Boston.
    During individual price negotiations between advertisers and radio 
stations, advertisers provide the stations with information about their 
advertising needs, including their target audience and the desired 
frequency and timing of ads. Radio stations thus have the ability to 
charge advertisers differing prices after assessing the number and 
attractiveness of alternative radio stations that can meet a particular 
advertiser's specific target audience needs.
    In Philadelphia and Boston, advertisers that must reach male 
listeners within certain age ranges can help ensure competitive rates 
by ``playing off'' Infinity stations against Westinghouse stations. 
Because the direct competition between the Westinghouse and the 
Infinity stations would be eliminated by the proposed merger, and 
because advertisers seeking

[[Page 63868]]

to reach male listeners between the ages of 18 and 54 would have 
inferior alternatives to the merged entity, the acquisition would give 
Westinghouse the ability to raise prices and reduce quality. This is 
particularly true because of the merged entity's ability to charge 
different prices to different advertisers.
    If Westinghouse raised prices or lowered services to those 
advertisers who buy time on Westinghouse and Infinity stations because 
of their strength in delivering access to certain audiences, non-
Westinghouse radio stations in Philadelphia and Boston would not be 
induced to change their formats to attract those audiences in 
sufficiently large numbers to defeat a price increase. Successful radio 
stations are unlikely to undertake a format change solely in response 
to small but significant increases in price being charged to 
advertisers by a multi-station firm such as Westinghouse, because they 
would likely lose a substantial portion of their existing audiences. 
Even if less successful stations did change format, they would still be 
unlikely to attract enough listeners to provide suitable alternatives 
to the merged entity.
    New entry into the Philadelphia and Boston radio advertising 
markets is highly unlikely in response to a price increase by the 
merged entity. No unallocated radio broadcast frequencies exist in 
Philadelphia and Boston. Also, stations located in adjacent communities 
cannot boost their power so as to enter the Philadelphia and Boston 
MSAs without interfering with other stations on the same or similar 
frequencies, a violation of Federal Communications Commission (``FCC'') 
regulations.
    For these reasons, the plaintiff concludes that the merger as 
proposed would substantially lessen competition in the sale of radio 
advertising time in the Philadelphia and Boston MSAs, eliminate actual 
competition between Westinghouse and Infinity, and result in increased 
prices and reduced quality of service for buyers of radio advertising 
time in those markets, all in violation of Section 7 of the Clayton 
Act.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment would preserve competition in the sale 
of radio advertising time in the Philadelphia and Boston MSAs. It 
requires the divestiture of WMMR-FM in Philadelphia and WBOS-FM in 
Boston. The divestitures will preserve choices for advertisers, 
particularly for those seeking to reach male listeners between the ages 
of 18 and 54. They will also help ensure that radio advertising rates 
do not increase and that services do not decline in Philadelphia and 
Boston as a result of the acquisition. This relief will reduce the 
market share Westinghouse would have achieved through the merger from 
about 45 percent to about 37 percent in the Philadelphia MSA, and from 
over 40 percent to 36.5 percent in the Boston MSA.
    Unless the United States grants an extension of time, defendants 
must divest WMMR-FM and WBOS-FM within six months after the Final 
Judgment has been filed, or within five (5) business days after notice 
of entry of this Final Judgment, whichever is later. Until the 
divestitures take place, these stations, now owned by Westinghouse and 
Infinity, respectively, will be maintained as independent competitors 
to the other stations in the Philadelphia and Boston MSAs, 
respectively, including the other Westinghouse and Infinity stations in 
those markets.
    If Westinghouse fails to divest either or both of these stations 
within the time period specified in the Final Judgment, or any 
extension thereof, the Court, upon application of the plaintiff, shall 
appoint a trustee nominated by the plaintiff to effect the required 
divestiture or divestitures. If a trustee is appointed, the proposed 
Final Judgment provides that defendants will pay all costs and expenses 
of the trustee and any professionals and agents retained by the 
trustee. The compensation paid to the trustee and any persons retained 
by the trustee shall be both reasonable in light of the value of WMMR-
FM and WBOS-FM, and shall be based on a fee arrangement providing the 
trustee with an incentive based on the price and terms of the 
divestitures and the speed with which they are accomplished. After 
appointment, the trustee will file monthly reports with the plaintiff, 
the defendants and the Court, setting forth the trustee's efforts to 
accomplish the divestitures ordered under the proposed Final Judgment. 
If the trustee has not accomplished the divestitures within six (6) 
months after its appointment, the trustee shall promptly file with the 
Court a report setting forth (1) the trustee's efforts to accomplish 
the required divestitures, (2) the reasons, in the trustee's judgment, 
why the required divestitures have not been accomplished, and (3) the 
trustee's recommendations. At the same time, the trustee will furnish 
such report to the plaintiff and defendants, who will each have the 
right to be heard and to make additional recommendations consistent 
with the purpose of the trust.
    The proposed Final Judgment requires that defendants maintain WMMR-
FM and WBOS-FM separate and apart from their other stations, pending 
divestiture. The Judgment also contains provisions to ensure that these 
stations will be preserved, so that they will remain viable, aggressive 
competitors after divestiture.
    The proposed Final Judgment also requires defendants to notify the 
plaintiff before acquiring any significant interest in another 
Philadelphia or Boston radio station. Such acquisitions could raise 
competitive concerns but might be too small to be otherwise reported 
under the Hart-Scott-Rodino (``HSR'') premerger notification 
requirements.
    Moreover, defendants are also required to notify the plaintiff 
before they enter into any Joint Sales Agreements (``JSAs''), where one 
station takes over another station's advertising time, or enter into 
any Local Marketing Agreements (``LMAs''), where one station takes over 
another station's broadcasting and advertising time, or any other 
comparable arrangements, in the Philadelphia or Boston areas. 
Agreements whereby defendants sell advertising for or manage other 
Philadelphia or Boston area radio stations would effectively increase 
their market share in such MSA. Despite their clear competitive 
significance, JSAs probably would not be reportable to the plaintiff 
under the HSR Act. Thus, this provision in the decree ensures that the 
plaintiff will receive notice of, and be able to stop, any agreements 
that could have anticompetitive effects in the Philadelphia or Boston 
markets.
    The relief in the proposed Final Judgment is intended to remedy the 
likely anticompetitive effects of the proposed acquisition of Infinity 
by Westinghouse. Nothing in this Final Judgment is intended to limit 
the plaintiff's ability to investigate or bring actions, where 
appropriate, challenging other past or future activities of defendants 
in the Philadelphia and Boston MSAs, including their entry into any 
JSAs, LMAs or any other agreements related to the sale of advertising 
time.

IV. Remedies Available to Potential Private Litigants

    Secion 4 of the Clayton Act, 15 U.S.C. Sec. 15, provides that any 
person who has been injured as result of conduct prohibited by the 
antitrust laws may bring suite in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the

[[Page 63869]]

provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec. 16(a), 
the proposed Final Judgment has no prima facie effect in any subsequent 
private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final 
Judgment

    The plaintiff and the defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the plaintiff has not withdrawn 
its consent. The APPA conditions entry upon the Court's determination 
that the proposed Final Judgment is in the public interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the plaintiff written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register. The plaintiff will evaluate 
and respond to the comments. All comments will be given due 
consideration by the Department of Justice, which remains free to 
withdraw its consent to the proposed Final Judgment at any time prior 
to its entry. The comments and the response of the plaintiff will be 
filed with the Court and published in the Federal Register.
    Any such written comments should be submitted to: Craig W. Conrath, 
Chief, Merger Task Force, Antitrust Division, United States Department 
of Justice, 1401 H Street, N.W., Suite 4000, Washington, D.C. 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The plaintiff considered, as an alternative to the proposed Final 
Judgment, a full trial on the merits of its Complaint against 
defendants. The plaintiff is satisfied, however, that the divestiture 
of WMMR-FM and WBOS-FM and other relief contained in the proposed Final 
Judgment will preserve viable competition in the sale of radio 
advertising time in the Philadelphia and Boston MSAs. Thus, the 
proposed Final Judgment would achieve the relief the Government would 
have obtained through litigation, but avoids the time, expense and 
uncertainty of a full trial on the merits of the Complaint.

VII. Standard of Review Under the APPA for Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty (60) day 
comment period, after which the court shall determine whether entry of 
the proposed Final Judgment ``is in the public interest.'' In making 
that determination, the court may consider--

    (1) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) the impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. Sec. 16(e). As the United States Court of Appeals for the 
D.C. Circuit recently held, this statute permits a court to consider, 
among other things, the relationship between the remedy secured and the 
specific allegations set forth in the government's complaint, whether 
the decree is sufficiently clear, whether enforcement mechanisms are 
sufficient, and whether the decree may positively harm third parties. 
See United States v. Microsoft, 56 F.3d 1448, 1461-62 (D.C. Cir. 1995).
    In conducting this inquiry, ``[t]he Court is nowhere compelled to 
go to trial or to engage in extended proceedings which might have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.'' \1\ Rather,

    \1\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette 
Co., 406 F. supp. 713, 715 (D. Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Responses to Comment filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. Sec. 16(f), those procedures are discretionary. A court 
need not invoke any of them unless it believes that the comments 
have raised significant issues and that further proceedings would 
aid the court in resolving those issues. See H.R. Rep. 93-1463, 93rd 
Cong. 2d Sess. 8-9 (1974), reprinted in U.S.C.C.A.N. 6535, 6538.
---------------------------------------------------------------------------

[a]bsent a showing of corrupt failure of the government to discharge 
its duty, the Court, in making its public interest finding, should * 
* * carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Case. para. 
61,508, at 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988), citing United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083 
(1981); see also Microsoft, 56 F.3d at 1460-62. Precedent requires that

the balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the distance of the Attorney General. The court's role 
in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest,'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\2\

    \2\ Bechtel, 648 F.2d at 666 (citations omitted)(emphasis 
added); see BNS, 858 F.2d at 463; United States v. National 
Broadcasting Co., 449 F. Supp. 1127, 1143 (C.D. Cal. 1978); 
Gillette, 406 F. Supp. at 716. See also Microsoft, 56 F.3d at 1461 
(whether ``the remedies [obtained in the decree are] so inconsonant 
with the allegations charged as to fall outside of the `reaches of 
the public interest' '') (citations omitted).
---------------------------------------------------------------------------

The proposed Final Judgment, therefore, should not be reviewed under a 
standard of whether it is certain to eliminate every anticompetitive 
effect of a particular practice or whether it mandates certainty of 
free competition in the future. Court approval of a final judgment 
requires a standard more flexible and less strict than the standard 
required for a finding of liability. ``[A] proposed decree must be 
approved even if it falls short of the remedy the court would impose on 
its own, as long as it falls within the range of acceptability or is 
`within the reaches of public interest.' '' \3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel. and Tel Co., 552 F. Supp. 
131, 151 (D.D.C. 1982), aff'd. sub nom, Maryland v. United States, 
460 U.S. 1001 (1983), quoting Gillette Co., 406 F. Supp. at 716 
(citations omitted); United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------

    This is strong and effective relief that should fully address the 
competitive harm posed by the proposed merger.

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the plaintiff in 
formulating the proposed Final Judgment.

    Dated: November 14, 1996.


[[Page 63870]]


    Respectfully submitted,
Dando B. Cellini,
Merger Task Force, U.S. Department of Justice, Antitrust Division, 1401 
H Street NW., Suite 4000, Washington, DC 20530, (202) 307-0829.

EXHIBIT A--Definition of HHI and Calculations for Market

    ``HHI'' means the Herfindahl-Hirschman Index, a commonly accepted 
measure of market concentration. It is calculated by squaring the 
market share of each firm competing in the market and then summing the 
resulting numbers. For example, for a market consisting of four firms 
with shares of thirty, thirty, twenty and twenty percent, the HHI is 
2600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2600). The HHI takes into account 
the relative size and distribution of the firms in a market and 
approaches zero when a market consists of a large number of firms of 
relatively equal size. The HHI increases both as the number of firms in 
the market decreases and as the disparity in size between those firms 
increases.
    Markets in which the HHI is between 1000 and 1800 points are 
considered to be moderately concentrated, and those in which the HHI is 
in excess of 1800 points are considered to be concentrated. 
Transactions that increase the HHI by more than 100 points in 
concentrated markets presumptively raise antitrust concerns under the 
Merger Guidelines. See Merger Guidelines Sec. 1.51.

Certificate of Service

    I, Dando B. Cellini, hereby certify that, November 15, 1996, I 
caused a copy of the foregoing Competitive Impact Statement filed this 
day in United States v. Westinghouse Broadcasting Corporation and 
Infinity Broadcasting Corporation, Civil Action No. 1:96CV02563 (NHJ), 
to be served on defendants Westinghouse Broadcasting Corporation and 
Infinity Broadcasting Corporation by having a copy mailed, first class, 
postage prepaid, to:

Joe Sims, Jones, Day, Reavis & Pogue, 1450 G St., N.W., Washington, 
D.C. 20005, Counsel for Westinghouse Electric Corporation
Daniel M. Abuhoff, Debevoise & Plimpton, 875 Third Avenue, New York, NY 
10022, Counsel for Infinity Broadcasting Corporation.

    Dated: November 15, 1996.
Dando B. Cellini,
[FR Doc. 96-30550 Filed 11-29-96; 8:45 am]
BILLING CODE 4410--M