[Federal Register Volume 63, Number 70 (Monday, April 13, 1998)]
[Notices]
[Pages 18036-18048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9374]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. CBS Corporation and American Radio 
Systems 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. CBS Corporation and American Radio Systems 
Corporation, Case No. 1:98CV00819. The proposed Final Judgment is 
subject to approval by the Court after the expiration of the statutory 
60-day pubic 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 March 31, 
1998, alleging that the proposed acquisition of American Radio Systems 
Corporation (``ARS'') by CBS Corporation (``CBS'') would violate 
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. The Complaint alleges 
that CBS and ARS own and operate numerous radio stations throughout the 
United States, and that they each own and operate radio stations in the 
Boston, Massachusetts, St. Louis, Missouri and Baltimore, Maryland 
metropolitan areas. This acquisition would give CBS control over more 
than 40 percent of the radio advertising revenues in those metropolitan 
areas, and would give CBS the ability to raise prices and reduce 
services to many advertisers. As a result, the combination of these 
companies would substantially lessen competition in the sale of radio 
advertising time in the Boston, St. Louis and Baltimore metropolitan 
areas.
    The prayer for relief seeks: (a) Adjudication that CBS's proposed 
acquisition of ARS 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 CBS to complete its acquisition of ARS, yet 
preserves competition in the markets in which the transaction would 
raise significant competitive concerns. A Stipulation, proposed Final 
Judgment embodying the settlement, and Competitive Impact Statement 
were filed with the Court at the same time the Complaint was filed.
    The proposed Final Judgment orders CBS to divest WEEI-AM, WAAF-FM, 
WEGQ-FM and WRKO-AM in Boston, KSD-FM and KLOU-FM in St. Louis, and 
WOCT-FM in Baltimore, all of which are currently owned by ARS. Unless 
the United States grants an extension of time, CBS must divest these 
radio stations within six months after CBS places certain stations 
which it is required to dispose of by FCC rules into FCC disposition 
trusts (with an outside date of nine months after the Complaint was 
filed) or within five business days after notice of entry of the Final 
Judgment, whichever is later.
    If CBS does not divest these stations within the divestiture 
period, the Court, upon application of the United States, is to appoint 
a trustee to sell the assets. The proposed Final Judgment also requires 
CBS to ensure that, until the divestitures mandated by the Final 
Judgment have been accomplished, these stations will be operated 
independently as viable, ongoing businesses, and kept separate and 
apart from CBS's other radio stations in Boston, St. Louis and 
Baltimore. Further, the proposed Final Judgment requires defendants to 
give the United States prior notice regarding future radio station 
acquisitions or certain agreements pertaining to the sale of radio 
advertising time in Boston, St. Louis or Baltimore.
    The United States and CBS and ARS 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.
    A Competitive Impact Statement filed by the United States describes 
the Compliant, 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, DC 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 Street, NW., Washington, DC 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, DC 20001.

[[Page 18037]]

    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.
Constance K. Robinson,
Director of Operations & Merger Enforcement Antitrust Division.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. CBS Corporation and 
American Radio Systems Corporation, Defendants

[No. 98-0819]

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 parties stipulate that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion, at any time after compliance with 
the requirements of the Antitrust Procedures and penalties Act (15 
U.S.C. Sec. 16), and without further notice to any party or other 
proceedings, provided that plaintiff has not withdrawn its consent, 
which it may do at any time before the entry of the proposed Final 
Judgment by serving notice thereof on defendants and by filing that 
notice with the Court.
    (3) Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment pending entry of the Final Judgment by the 
Court, or until expiration of time for all appeals of any Court ruling 
declining entry of the proposed Final Judgment, and shall, from the 
date of the signing of this Stipulation by the parties, comply with all 
the terms and provisions of the proposed Final Judgment as through the 
same were in full force and effect as an Order of the Court.
    (4) The parties recognize that there could be a delay in obtaining 
approval by or a ruling of a government agency related to the 
divestitures required by Section IV of the Final Judgment, 
notwithstanding the good faith efforts of the defendants and any 
prospective Acquirer, as defined in the Final Judgment. In this 
circumstance, plaintiff will, in the exercise of its sole discretion, 
acting in good faith give special consideration to forebearing from 
applying for the appointment of a trustee pursuant to Section V of the 
Final Judgment, or from pursuing legal remedies available to it as a 
result of such delay, provided that: (i) Defendants have entered into 
one or more definitive agreements to divest the WOCT-FM Assets, the 
WEGO-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM 
Assets, the KSD-FM Assets, and the KLOU-FM Assets, as defined in the 
Final Judgment, and such agreements and the Acquirer or Acquiers 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 wit the appropriate agency; (iii) Receipt of such 
approvals are the only closing conditions that have not been satisfied 
or waived; and (iv) Defendants have demonstrated that neither they nor 
the prospective Acquirer or Acquiers are responsible for any such 
delay.
    (5) This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    (6) In the event plaintiff withdraws its consent, as provided in 
paragraph 2 above, or in the event the proposed Final Judgment is not 
entered pursuant to this Stipulation, the time, has expired for all 
appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties are released from all further obligations under this 
Stipulation, and the making of this Stipulation shall be without 
prejudice to any party in this or any other proceeding.
    (7) Defendants represent that the divestitures ordered in the 
proposed Final Judgment can and will be made, and that defendants will 
later raise no claim of hardship or difficulty as grounds for asking 
the Court to modify any of the divestiture provisions contained 
therein.

    Dated: March 31, 1998.

    For Plaintiff United States of America:
Allen P. Grunes,
U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401 
H Street, N.W., Suite 4000, Washington, D.C. 20005, (202) 307-0001.

    For Defendant CBS Corporation:
Joe Sims,
Jones, Day, Reavis & Pogue, 1450 G Street, N.W., Washington, D.C. 
20005, (202) 879-3939.

    For Defendant American Radio Systems Corporation:
Timothy J. O'Rourke,
Dow, Lohnes & Albertson, 1200 New Hampshire Avenue, N.W., Washington, 
D.C. 20036, (202) 776-2000.

    So Ordered:

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United States District Judge

Certificate of Service

    I, Allen P. Grunes, hereby certify that, on March 31, 1998, I 
caused the foregoing document to be served on defendants CBS 
Corporation and American Radio Systems 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 CBS Corporation.

Timothy J. O'Rourke,
Dow, Lohnes & Albertson, 1200 New Hampshire Avenue, N.W., Washington, 
D.C. 20036, Counsel for American Radio Systems Corporation.

Allen P. Grunes.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. CBS Corporation and 
American Radio Systems Corporation, Defendants

[No. 98-0819]

Final Judgment

    WHEREAS, plaintiff, the United States of America, filed its 
Complaint in this action on March 31, 1998, and plaintiff 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

[[Page 18038]]

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 CBS and ARS, 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. ``CBS'' means defendant CBS Corporation, a Pennsylvania 
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 CBS.
    B. ``ARS'' means defendant American Radio Systems Corporation, a 
Delaware corporation with its headquarters in Boston, Massachusetts, 
and includes its successors and assigns, its subsidiaries, and 
directors, officers, managers, agents and employees acting for or on 
behalf of ARS.
    C. ``WOCT-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WOCT 104.3 FM radio station in 
Baltimore, Maryland, 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 
defendants 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 defendants or 
that station in connection with its business.
    D. ``WEGQ-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WEGQ 93.7 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 FCC and other governmental 
agencies relating to that station; all contracts, agreements, leases 
and commitments of defendants 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 
defendants or that station in connection with its business.
    E. ``WAAF-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WAAF 107.3 FM radio station in 
Worcester, 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 FCC and 
other governmental agencies relating to that station; all contracts, 
agreements, leases and commitments of defendants 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 defendants or that station in connection with its 
business.
    F. ``WEEI-AM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WEEI 850 AM 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 FCC and other governmental 
agencies relating to that station; all contracts, agreements, leases 
and commitments of defendants 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 
defendants or that station in connection with its business.
    G. ``WRKO-AM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the WRKO 680 AM 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 FCC and other governmental 
agencies relating to that station; all contracts, agreements, leases 
and commitments of defendants 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 
defendants or that station in connection with its business.
    H. ``KSD-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the KSD 93.7 FM radio station in 
St. Louis, Missouri, 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 FCC and other governmental 
agencies relating to that station; all contracts, agreements, leases 
and commitments of defendants 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 
defendants or that station in connection with its business.
    I. ``KLOU-FM Assets'' means all of the assets, tangible or 
intangible, used in the operation of the KLOU 103.3 FM radio station in 
St. Louis, Missouri, including but not limited to: All real

[[Page 18039]]

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 FCC and 
other governmental agencies relating to that station; all contracts, 
agreements, leases and commitments of defendants 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 defendants or that station in connection with its 
business.
    J. ``Baltimore Area'' means the Baltimore, Maryland Metro Survey 
Area as identified by The Arbitron Radio Market Report for Baltimore 
(Spring 1997), which is made up of the following counties: Anne 
Arundel, Baltimore, Baltimore City, Carroll, Harford, Howard, and Queen 
Annes.
    K. ``Boston Area'' means the Boston, Massachusetts Metro Survey 
Area as identified by The Arbitron Radio Market Report for Boston 
(Spring 1997), which is made up of the following counties: Essex, 
Middlesex, Norfolk, Plymouth, and Suffolk.
    L. ``St. Louis Area'' means the St. Louis, Missouri Survey Area as 
identified by The Arbitron Radio Market Report for St. Louis (Spring 
1997), which is made up of the following counties: Clinton, Franklin, 
Jefferson, Jersey, Lincoln, Madison, Monroe, St. Charles, St. Clair, 
St. Louis, St. Louis City, and Warren.
    M. ``CBS Radio Station'' means any radio station owned by CBS or 
ARS and licensed to a community in the Baltimore Area, the Boston Area, 
or the St. Louis Area, other than WOCT-FM in the Baltimore Area, WEGQ-
FM, WAAF-FM, WEEI-AM and WRKO-AM in the Boston Area, and KSD-FM, and 
KLOU-FM in the St. Louis Area.
    N. ``Non-CBS Radio Station'' means any radio station licensed to a 
community in the Baltimore Area, the Boston Area, or the St. Louis Area 
that is not a CBS Radio Station.
    O. ``Acquirer'' means the entity or entities to whom defendants 
divest the WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the 
WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM Assets, and/or the KLOU-
FM Assets under this Final Judgment.
    P. ``FCC Disposition Trust'' means the FCC-approved trust or trusts 
established for the purpose of insuring compliance with FCC numerical 
limitations on radio local ownership.
    Q. ``FCC Trust Radio Stations'' means those stations which CBS will 
transfer into the FCC Disposition Trust prior to consummation of the 
proposed acquisition.

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 the 
Baltimore Area, the Boston Area, or the St. Louis 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 in connection with the divestiture of the 
WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM 
Assets, the WRKO-AM Assets, the KSD-FM Assets, and/or the KLOU-FM 
Assets; and provided further that if any divestiture assets are placed 
in an FCC Disposition Trust, defendants shall undertake to require that 
the trustee be bound by the provisions of this Final Judgment.

IV. Divestitures

    A. Defendants are hereby ordered and directed, in accordance with 
the terms of this Final Judgment, within six (6) months after CBS 
assigns the FCC Trust Radio Stations to the FCC Disposition Trust, or 
nine (9) months after the filing of the complaint in this action, 
whichever is earlier, to divest the WOCT-FM Assets, the WEGQ-FM Assets, 
the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM 
Assets, and the KLOU-FM Assets to one or more Acquirers acceptable to 
plaintiff in its sole discretion; provided, however, notwithstanding 
the foregoing, the divestitures required by this Final Judgment need 
not be accomplished prior to five (5) days after notice of the entry of 
this Final Judgment by the Court.
    B. Defendants agree to use their best efforts to divest the WOCT-FM 
Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the 
WRKO-AM Assets, the KSD-FM Assets, and the KLOU-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 WOCT-FM Assets, the WEGQ-FM 
Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the 
KSD-FM Assets, and the KLOU-FM Assets. Defendants shall inform any 
person making a bonafide 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 
WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM 
Assets, the WRKO-AM Assets, the KSD-FM Assets, and/or the KLOU-FM 
Assets that the assets described in Section II (C) through (I) are 
being offered for sale and may be purchased separately or as a multi-
station package of two or more stations. Defendants shall also offer to 
furnish to all bona fide prospective purchasers, subject to customary 
confidentiality assurances, all information regarding the WOCT-FM 
Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the 
WRKO-AM Assets, the KSD-FM Assets, and the KLOU-FM Assets customarily 
provided in a due diligence process, except such information 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 
WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM 
Assets, the WRKO-AM Assets, the KSD-FM Assets, and/or the KLOU-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. 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 include all the WOCT-

[[Page 18040]]

FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, 
the WRKO-AM Assets, the KSD-FM Assets, and the KLOU-FM Assets, and 
shall be accomplished in such a way as to satisfy plaintiff, in its 
sole discretion, that such 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 (a) 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 Baltimore Area, the Boston Area, and the St. Louis Area, and (b) 
intends or intend in good faith to continue the operations of the radio 
station as were in effect in the period immediately prior to the filing 
of the complaint in this action (unless any significant change in the 
operations planned by an Acquirer is accepted by the plaintiff in its 
sole discretion); and (ii) pursuant to agreements the terms of which 
shall not, in the sole judgment of plaintiff, interfere with or 
otherwise diminish the ability of the Acquirer or Acquirers to compete 
effectively against defendants.
    F. Defendants shall not interfere with any efforts by any Acquirer 
or Acquirers to employ the general manager or any other employee of 
WOCT-FM, WEGQ-FM, WAAF-FM, WEEI-AM, WRKO-AM, KSD-FM or KLOU-FM.

V. Appointment of Trustee

    A. In the event that defendants have not divested the WOCT-FM 
Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the 
WRKO-AM Assets, the KSD-FM Assets, and the KLOU-FM Assets within the 
time specified in Section IV of this Final Judgment, 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 WOCT-FM Assets, the WEGQ-FM 
Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the 
KSD-FM Assets, and the KLOU-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 IV and VII of this Final Judgment and consistent 
with FCC regulations, and shall have such 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 and agents shall be accountable 
solely 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 WOCT-FM Assets, the WEGQ-FM Assets, 
the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM 
Assets, or the KLOU-FM Assets by the trustee on any grounds other than 
the trustee's malfeasance. Any such objection by defendants must be 
conveyed in writing to plaintiff and the trustee within ten (10) 
calendar days after the trustee has provided the notice required under 
Section VII 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 money shall be paid to defendants, and the trust 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 divestitures and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestitures and the spend with which they are accomplished.
    D. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestitures, including best efforts to 
effect all necessary regulatory approvals. The trustee and any 
consultants, accountants, attorneys and any other persons retained by 
the trustee shall have full and complete access to the personnel, 
books, records and facilities related to the WOCT-FM Assets, the WEGQ-
FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, 
the KSD-FM Assets, and the KLOU-FM Assets, and defendants shall develop 
financial or other information relevant to the assets to be divested 
customarily provided in a due diligence process as the trustee may 
reasonably request, subject to customary confidentiality assurances. 
Defendants shall permit prospective purchasers of the WOCT-FM Assets, 
the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM 
Assets, the KSD-FM Assets, and the KLOU-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, the trustee shall file monthly reports 
with the parties and the Court setting forth the trustee's efforts to 
accomplish the divestitures ordered 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 WOCT-FM Assets, the WEGQ-
FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, 
the KSD-FM Assets, or the KLOU-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 assets.
    F. If the trustee has not accomplished such divestitures within six 
(6) months after its appointment, the trustee thereupon shall file 
promptly 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; 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 the parties, who shall each have the right to be heard and 
to make additional recommendations consistent with the purpose of the 
trust. The Court shall thereafter enter such orders as it shall deem 
appropriate in order to carry out the purpose of the trust, which may, 
if necessary, include extending the trust and the term of the trustee's 
appointment.

[[Page 18041]]

VI. Preservation of Assets/Hold Separate

    Until the divestiture of the WOCT-FM Assets, the WEGQ-FM Assets, 
the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM 
Assets, and the KLOU-FM Assets required by Section IV of the Final 
Judgment has been accomplished:
    A. Prior to the consummation of CBS's acquisition of ARS, 
defendants shall maintain the independence of their respective radio 
stations in the Baltimore Area. Following the consummation of CBS's 
acquisition of ARS, defendants shall take all steps necessary to 
operate WOCT-FM as a separate, independent, ongoing, economically 
viable and active competitor to CBS's other stations in the Baltimore 
Area, and shall take all steps necessary to insure that, except as 
necessary to comply with Section IV and paragraphs (D) and (K) 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, CBS.
    B. Prior to the consummation of CBS's acquisition of ARS, 
defendants shall maintain the independence of their respective radio 
stations in the Boston Area. Following the consummation of CBS's 
acquisition of ARS, defendants shall take all steps necessary to 
operate WEGQ-FM, WAAF-FM, WEEI-AM and WRKO-AM as separate, independent, 
ongoing, economically viable and active competitors to CBS's other 
stations in the Boston Area, and shall take all steps necessary to 
insure that, except as necessary to comply with Section IV and 
paragraphs (E), (F), (G), (H), (L), (M), (N) and (O) of this Section of 
the Final Judgment, the management of said stations, including the 
performance of decision-making functions regarding marketing and 
pricing, will be kept separate and apart from, and not influenced by, 
CBS.
    C. Prior to the consummation of CBS's acquisition of ARS, 
defendants shall maintain the independence of their respective radio 
stations in the St. Louis Area. Following the consummation of CBS's 
acquisition of ARS, defendants shall take all steps necessary to 
operate KSD-FM and KLOU-FM as separate, independent, ongoing, 
economically viable and active competitors to CBS's other stations in 
the St. Louis Area, and shall take all steps necessary to insure that, 
except as necessary to comply with Section IV and paragraphs (I), (J), 
(P) and (Q) of this Section of the Final Judgment, the management of 
said stations, including the performance of decision-making functions 
regarding marketing and pricing, will be kept separate and apart from, 
and not influenced by, CBS.
    D. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WOCT-FM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    E. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WEGQ-FM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    F. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WAAF-FM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    G. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WEEI-AM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    H. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by WRKO-AM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    I. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by KSD-FM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    J. Defendants shall use all reasonable efforts to maintain and 
increase sales of advertising time by KLOU-FM, and shall maintain at 
1997 or previously approved levels for 1998, whichever are higher, 
promotional advertising, sales, marketing and merchandising support for 
said station.
    K. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WOCT-FM are fully maintained. WOCT-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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    L. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WEGQ-FM are fully maintained. WEGQ-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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    M. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WAAF-FM are fully maintained. WAAF-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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    N. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WEEI-AM are fully maintained. WEEI-AM'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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    O. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of WRKO-AM are fully maintained. WRKO-AM'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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    P. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of KSD-FM are fully maintained. KSD-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 policies, 
provided that defendants give plaintiff and Acquirer ten (10) days' 
notice of any such transfer.
    Q. Defendants shall take all steps necessary to ensure that the 
assets used in the operation of KLOU-FM are fully maintained. KLOU-FM's 
sales and marketing employees shall not be

[[Page 18042]]

transferred or reassigned to any other station, except for transfer 
bids initiated by employees pursuant to defendants' regular, 
established job posting policies, provided that defendants give 
plaintiff and Acquirer ten (10) days' notice of any such transfer.
    R. Defendants shall not, except as part of a divestiture approved 
by plaintiff, sell any WOCT-FM Assets, WEGQ-FM Assets, WAAF-FM Assets, 
WEEI-AM Assets, WRKO-AM Assets, KSD-FM Assets, or KLOU-FM Assets.
    S. Defendants shall take no action that would jeopardize the sale 
of the WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the 
WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM Assets, or the KLOU-FM 
Assets.
    T. Defendants shall 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.

VII. Notification

    Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, any proposed divestitures 
pursuant to Sections IV or V of this Final Judgment, defendants or the 
trustee, whichever is then responsible for effecting the divestitures, 
shall notify plaintiff of the proposed divestitures. 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 WOCT-FM Assets, the WEGQ-FM Assets, the WAAF-
FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, the KSD-FM Assets, 
or the KLOU-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, or any other third party, additional information concerning 
the proposed divestitures and the proposed purchaser. Defendants and 
the trustee shall furnish any additional information requested from 
them within fifteen (15) calendar days of the receipt of the request, 
unless the parties shall otherwise agree. Within thirty (30) calendar 
days after receipt of the notice or within twenty (20) calendar days 
after plaintiff has been provided the additional information requested 
from defendants, the proposed purchaser or purchasers, and any third 
party, whichever is later, plaintiff shall provide written notice to 
defendants and the trustee, if there is one, stating whether or not it 
objects to the proposed divestiture. If plaintiff provides written 
notice to defendants and the trustee 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. 
Absent written notice that plaintiff does not object to the proposed 
purchaser or upon objection by the plaintiff, a divestiture proposed 
under Section IV or Section V may not be consummated. Upon objection by 
defendants under the provision 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 the Complaint 
in this matter and every thirty (30) calendar days thereafter until the 
divestitures have 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 
Sections 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, 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 WOCT-FM Assets, the WEGQ-
FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the WRKO-AM Assets, 
the KSD-FM Assets, and/or the KLOU-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 WOCT-FM 
Assets, the WEGQ-FM Assets, the WAAF-FM Assets, the WEEI-AM Assets, the 
WRKO-AM Assets, the KSD-FM Assets, or the KLOU-FM Assets.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to 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 WOCT-FM, WEGQ-FM, WAAF-FM, WEEI-AM, WRKO-AM, KSD-FM, and KLOU-
FM pursuant to Section VI 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 efforts made to 
preserve the assets to be divested and effect the divestitures.

X. Notice

    A. Unless such transaction is otherwise subject to the reporting 
and waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. Sec. 18a (the ``HSR 
Act''), defendants, without providing advance notification to the 
plaintiff, shall not directly or indirectly acquire any assets of or 
any interest, including any financial, security, loan, equity or 
management interest, in any Non-CBS Radio Station; provided, however, 
that defendants need not provide notice under this provision for any 
direct or indirect acquisition of equity of a Non-CBS Radio Station 
that would result in defendants' holding no more than five percent of 
the total equity of the station.
    B. Defendants, without providing advance notification to the 
plaintiff, shall not directly or indirectly enter into any agreement or 
understanding that would allow defendants to market or sell advertising 
time or to establish advertising prices for any Non-CBS Radio Station.
    C. Notification described in (A) and (B) 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 respect to CBS Radio Stations 
in the Baltimore Area, the Boston Area, and the St. Louis Area. 
Notification shall be provided at least thirty (30) days prior to 
acquiring any such interest covered in (A) or (B) above, and shall 
include, beyond what may be required by the applicable instructions, 
the names of the principal representatives of the parties to the 
agreement who negotiated the agreement, and any management or strategic 
plans

[[Page 18043]]

discussing the proposed transaction. If within the 30-day 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.
    D. 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 or securing compliance with the 
Final Judgment and subject to any legally recognized privilege, from 
time to time:
    A. Duly authorized representatives of the United States Department 
of Justice, including consultants and other persons retained by the 
plaintiff, upon written request of the Attorney General, or of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to defendants made to their principal offices, shall 
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 the matters 
contained in this Final Judgment; and
    (2) Subject to the reasonable convenience of defendants and without 
restraint or interference from them, to interview, either informally or 
on the record, directors, officers, employees and agents of defendants, 
who may have counsel present, regarding any such matters.
    B. Upon the written request of the 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 the 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 for the purpose of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for such further orders and directions as may be necessary or 
appropriate for the construction or carrying out of this Final 
Judgment, for the modification of any of the provisions hereof, for the 
enforcement of compliance herewith, and for the punishment of any 
violations 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. Pubic Interest

    Entry of this Final Judgment is in the public interest.

    Dated ________________.

----------------------------------------------------------------------
United States District Judge

Certificate of Service

    I, Allen P. Grunes, hereby certify that, on March 31, 1998, I 
caused the foregoing document to be served on defendants CBS 
Corporation and American Radio Systems Corporation by having a copy 
mailed, first-class, postage prepaid, to:
Joe Sims,
Jones, Day, Reavis & Pogue, 1450 G St., NW., Washington, DC 20005, 
Counsel for CBS Corporation.

Timothy J. O'Rourke,
Dow, Lohnes & Albertson, 1200 New Hampshire Avenue, NW., Washington, DC 
20036, Counsel for American Radio Systems Corporation.

Allen P. Grunes.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. CBS Corporation and 
American Radio Systems Corporation, Defendants

[Case Number 1:98CV00819]

JUDGE: Emmet G. Sullivan
DECK TYPE: Antitrust
DATE STAMP: 03/31/98

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 March 31, 1998, 
alleging that a proposed acquisition of American Radio Systems 
Corporation (``ARS'') by CBS Corporation (``CBS'') would violate 
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. The Complaint alleges 
that CBS and ARS both own and operate numerous radio stations 
throughout the United States, and that they each own and operate radio 
stations in the Boston, St. Louis, and Baltimore metropolitan areas. 
The acquisition would give CBS a significant share of the radio 
advertising market in each of these metropolitan areas, control over a 
high percentage of the available radio signals which cover the markets, 
and control over stations that are close substitutes for each other 
based on their specific audience characteristics. In Boston, according 
to 1997 industry estimates, the acquisition would give CBS control of 3 
out of 5 top radio stations or 59 percent of the radio advertising 
revenues. In St. Louis, CBS would control 4 out of the 7 top radio 
stations or 49 percent of the radio advertising revenues. Finally, CBS 
would control 5 of the top 9 radio stations or 46 percent of the radio 
advertising revenues in Baltimore. As a result, the combination would 
substantially lessen competition in the sale of radio advertising time 
in

[[Page 18044]]

the Boston, St. Louis, and Baltimore metropolitan areas.
    The prayer for relief seeks: (a) An adjudication that the proposed 
transactions described in the Complaint would violate Section 7 of the 
Clayton Act; (b) preliminary and permanent injunctive relief preventing 
the consummation of the transaction; (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 CBS to complete its acquisition of ARS, yet 
preserves competition in the markets in which the transactions would 
raise significant competitive concerns. A Stipulation and proposed 
Final Judgment embodying the settlement were filed at the same time the 
Complaint was filed.
    The proposed Final Judgment orders CBS to divest WEEI-AM, WEGQ-FM, 
WAAF-FM and WRKO-AM in Boston, KSD-FM and KLOU-FM in St. Louis, and 
WOCT-FM in Baltimore. These stations are currently owned by ARS. Unless 
the plaintiff grants a time extension, CBS must divest these radio 
stations within six months after CBS places certain stations which it 
is required to dispose of by FCC rules into FCC disposition trusts. The 
FCC disposition trusts require disposition within six months, with the 
result that the divestitures required under the Final Judgment for 
antitrust purposes and the divestitures required for FCC regulatory 
purposes will be accomplished during the same period of time. In order 
to insure prompt divestiture, the proposed Final Judgment provides that 
the divestitures shall take place within 6 months of the date CBS 
places stations into the FCC disposition trusts or 9 months from the 
date the Complaint in this action is filed, whichever is sooner. This 
provision establishes an outside date based on the filing of the 
Complaint in the event that there is any delay associated with the 
establishment of the FCC disposition trusts. (Plaintiff has no reason 
to believe that there will be any such delay.) Finally, in the event 
that the Court does not, for any reason, enter the Final Judgment 
within the time period measured by the establishment of the FCC 
disposition trusts or the filing of the complaint, the divestitures are 
to occur within five (5) business days after notice of entry of the 
Final Judgment.
    If CBS does not divest these stations within the divestiture 
period, the Court, upon plaintiff's application, is to appoint a 
trustee to sell the assets. The proposed Final Judgment also requires 
CBS to ensure that, until the divestitures mandated by the Final 
Judgment have been accomplished, these stations will be operated 
independently as viable, ongoing businesses, and kept separate and 
apart from CBS's other radio stations in Boston, St. Louis and 
Baltimore. Further, the proposed Final Judgment requires defendants to 
give plaintiff prior notice regarding future radio station acquisitions 
or certain agreements pertaining to the sale of radio advertising time 
in Boston, St. Louis or Baltimore.
    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 Violations

A. The Defendants

    CBS is a Pennsylvania corporation with its headquarters in New 
York, New York. It currently operates 76 radio stations located in 17 
metropolitan areas in the United States. It owns four radio stations in 
the Boston area (WBCN-FM, WBZ-AM, WODS-FM and WZLX-FM), one station in 
the St. Louis area (KMOX-AM), and five radio stations in the Baltimore 
area (WCAO-AM, WHFS-FM, WJFK-AM, WLIF-FM and WXYV-FM). In 1996, its 
revenues from its Boston stations were approximately $69,600,000, its 
revenues from its St. Louis station were approximately $21,900,000, and 
its revenues from its Baltimore stations were approximately 
$15,900,000.
    ARS is a Delaware corporation headquartered in Boston, 
Massachusetts. It owns and operates 85 radio stations located in 19 
metropolitan areas nationwide. It owns six radio stations in the Boston 
area (WAAF-FM, WBMX-FM, WEEI-AM, WEGQ-FM, WNFT-AM, and WRKO-AM), four 
radio stations in the St. Louis area (KEZK-FM, KLOU-FM, KSD-FM, and 
KYKY-FM), and five radio stations in the Baltimore area (WBGR-AM, WBMD-
AM, WOCT-FM, WQSR-FM and WWMX-FM). In 1996, its revenues from its 
Boston stations were approximately $55,700,000, its revenues from its 
St. Louis stations were approximately $26,950,000, and its revenues 
from its Baltimore stations were approximately $26,850,000.

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

    On September 19, 1997, CBS (formerly known as Westinghouse Electric 
Corporation) entered into an Agreement and Plan of Merger with ARS. 
This Agreement was amended and restated on December 18, 1997, and 
further amended on December 19, 1997. Pursuant to the Agreement, ARS's 
radio operations will be acquired by CBS. ARS's tower operations will 
be separately spun off and will not be acquired by CBS. The transaction 
is valued at approximately $1.6 billion. The result of this 
transaction, as is more fully discussed below, would be to give CBS a 
significant share of the radio advertising market in Boston, St. Louis, 
and Baltimore as well as a significant percentage of advertising 
directed to certain target audiences in these areas.
    CBS and ARS previously have competed for the business of local and 
national companies seeking to advertise in the Boston, St. Louis, and 
Baltimore areas. The proposed acquisition by CBS of ARS, and the 
threatened loss of competition that would be caused thereby, 
precipitated the government's suit.

C. Anticompetitive Consequences of the Proposed Transaction

1. Sale of Radio Advertising Time in Boston
    The Complaint alleges that the provision of advertising time on 
radio stations serving the Boston, St. Louis, and Baltimore Metro 
Service Area (``MSA'') constitutes a line of commerce and section of 
the country, or relevant market, for antitrust purposes. The MSA is the 
geographical unit for which Arbitron furnishes radio stations, 
advertisers and advertising agencies with data to aid in evaluating 
radio audience size and composition. Advertisers use this data in 
making decisions about which radio station or combination of radio 
stations can deliver their target audiences in the most efficient and 
cost-effective way. The Boston MSA includes five counties: Essex, 
Middlesex, Norfolk, Plymouth, and Suffolk. The St. Louis MSA includes 
twelve counties: Clinton, Franklin, Jefferson, Jersey, Lincoln, 
Madison, Monroe, St. Charles, St. Clair, St. Louis, St. Louis City, and 
Warren. The Baltimore MSA includes seven counties: Anne Arundel, 
Baltimore, Baltimore City, Carroll, Hartford, Howard, and Queen Anne's.
    Local and national advertising that is placed on radio stations 
within the Boston, St. Louis, and Baltimore MSAs is aimed at reaching 
listening audiences

[[Page 18045]]

within the respective MSAs, and other radio stations do not provide 
effective access to these audiences. Thus, if there were a small but 
significant nontransitory increase in radio advertising prices within 
one of these MSAs, advertisers would not buy enough advertising time 
from radio stations outside of the Boston, St. Louis, or Baltimore MSAs 
to defeat the increase.
    Radio stations earn their revenues from the sale of advertising 
time to local and national advertisers. Many local and national 
advertisers purchase radio advertising time in Boston, St. Louis, or 
Baltimore because they find such advertising preferable to advertising 
in other media for their specific needs. For such advertisers, radio 
time (a) may be less expensive and more cost-efficient than other media 
at reaching the advertiser's target audience (individuals most likely 
to purchase the advertiser's products or services); (b) may reach 
certain target audiences that cannot be reached as effectively through 
other media; or (c) may offer promotional opportunities to advertisers 
that they cannot exploit as effectively using other media. For these 
and other reasons, many local and national advertisers in Boston, St. 
Louis, or Baltimore 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 Boston, St. Louis, or Baltimore, the 
existence of such advertisers would not prevent radio stations from 
raising their prices a small but significant amount. At a minimum, 
stations could raise prices profitably 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 to price discriminate between different customers, radio 
stations may charge higher rates to advertisers that view radio as 
particularly effective for their needs, while maintaining lower rates 
for other advertisers.
2. Harm to Competition
    The Complaint alleges that CBS's proposed acquisition of ARS would 
lessen competition substantially in the provision of radio advertising 
time on stations in the Boston, St. Louis, or Baltimore MSAs. The 
proposed transactions would create further market concentration in 
already highly concentrated markets, and CBS would control a 
substantial share of the advertising revenues in these markets. CBS's 
market share of radio advertising revenues in Boston would rise from 33 
percent to 59 percent after the proposed transaction (BIA Investing in 
Radio 4th ed. 1997). According to the Herfindahl-Hirschman Index 
(``HHI''), a widely-used measure of market concentration defined and 
explained in Appendix A, CBS's post-transaction HHI in Boston would be 
4059, representing an increase of 1746 points. In St. Louis, CBS's 
post-transaction share of radio advertising revenue would increase from 
22 to 49 percent. CBS's post-transaction HHI would equal 3075, 
representing an increase of 1200 points. In Baltimore, CBS's market 
share of radio advertising revenue would increase from 17 to 46 percent 
as a result of the transaction. CBS's post-transaction HHI in Baltimore 
would be 3077, an increase of 985 points. These substantial increases 
in concentration are likely to give CBS the unilateral power to raise 
advertising prices and reduce the level of service provided to 
advertisers in Boston, St. Louis, and Baltimore.
    Furthermore, the proposed transactions would eliminate head-to-head 
competition between CBS and ARS for advertisers seeking to reach 
specific audiences. 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, the 
characteristics of its audience, and the geographic reach of a 
station's signal. Many advertisers seek to reach a large percentage of 
their target audience by selecting those stations whose audience best 
correlates to their target audience. Today, several CBS and ARS 
stations in Boston, St. Louis, and Baltimore compete head-to-head to 
reach the same audiences and, for many local and national advertisers 
buying time in those markets, the stations are close substitutes for 
each other based on their specific audience characteristics. The 
proposed transaction would eliminate such competition.
    Format changes are unlikely to deter the anticompetitive 
consequences of this transaction. If CBS raised prices or lowered 
services to those advertisers who buy ARS and CBS stations because of 
their strength in delivering access to certain specific audiences, non-
CBS radio stations in Boston, St. Louis, and Baltimore respectively, 
would not be induced to change their formats to attract a greater share 
of the same listeners and to serve better those advertisers seeking to 
reach such listeners. 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 CBS, because they would likely lose a substantial portion of 
their existing audiences. Even if less successful stations did change 
format, they still would be unlikely to attract enough listeners to 
provide a suitable alternative to CBS.
    Finally, new entry into the Boston, St. Louis, or Baltimore radio 
advertising markets is highly unlikely in response to a price increase 
by CBS. No unallocated radio broadcast frequencies exist in these 
markets. Also, it is unlikely that stations located in adjacent 
communities could boost their power so as to enter the Boston, St. 
Louis, or Baltimore markets without interfering with other stations on 
the same or similar frequencies, a violation of FCC regulations.
    For all of these reasons, plaintiff concludes that the proposed 
transactions would lessen competition substantially in the sale of 
radio advertising time on radio stations serving the Boston, St. Louis, 
and Baltimore MSAs, eliminate actual competition between CBS and ARS, 
and result in increased prices and reduced quality of service for radio 
advertising time on stations in the Boston, St. Louis, and Baltimore 
MSAs, 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 Boston, St. Louis, and Baltimore MSAs. 
It requires the divestiture of WEEI-AM, WEGQ-FM, WAAF-FM, and WRKO-FM 
in Boston, the divestiture of KSD-FM and KLOU-FM in St. Louis, and the 
divestiture of WOCT-FM in Baltimore. This relief will reduce the market 
share in advertising revenues CBS would have achieved through the 
proposed transaction from 59 percent to 39 percent in the Boston 
market, 49 percent to 39 percent in the St. Louis market, and from 46 
percent to about 40 percent in the Baltimore radio market.
    The divestitures will ensure that the affected markets will remain 
competitive. First, no firm will dominate the competitively 
significantly radio signals in any market. Second, advertisers will 
have sufficient alternatives to the merged firm in reaching groups of 
radio listeners most

[[Page 18046]]

affected by the transaction; that is, advertisers can reasonably 
efficiently reach such audiences (``buy around'') without using the 
merged firm. Third, the ownership structure in each market is such that 
it will allow for the possibility of at least three significant 
competitors who may compete for advertisers' business.
    Unless plaintiff grants an extension of time, CBS must divest WEEI-
AM, WEGQ-FM, WAAF-FM, and WRKO-AM in Boston, KSD-FM and KLOU-FM in St. 
Louis, and WOCT-FM in Baltimore, within six months after CBS places 
stations into FCC disposition trusts (with an outside date of nine 
months after the Complaint has been filed) or within five (5) business 
days after notice of entry of the Final Judgment, whichever is later. 
Until the divestitures take place, these stations will be maintained as 
viable and independent competitors to CBS's other stations in the 
Boston, St. Louis, and Baltimore MSAs.
    The divestitures must be to a purchaser or purchasers acceptable to 
the plaintiff in its sole discretion. Unless plaintiff otherwise 
consents in writing, the divestitures shall include all the assets of 
the stations being divested, and shall be accomplished in such a way as 
to satisfy plaintiff, in its sole discretion, that such assets can and 
will be used as viable, ongoing commercial radio businesses. In 
addition, the purchaser or purchasers must intend in good faith to 
continue the operations of the radio stations as were in effect in the 
period immediately prior to the filing of the complaint, unless any 
significant change in the operations planned by a purchaser is accepted 
by the plaintiff in its sole discretion. This provision is intended to 
insure that the stations to be divested remain competitive with CBS's 
other stations in Boston, St. Louis, and Baltimore.
    If defendants fail to divest these stations within the time periods 
specified in the Final Judgment, the Court, upon plaintiff's 
application, is to appoint a trustee nominated by plaintiff to effect 
the 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 WEEI-AM, 
WEGQ-FM, WAAF-FM, and WRKO-AM in Boston, KSD-FM and KLOU-FM in St. 
Louis, and WOCT-FM in Baltimore, and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestiture and the speed with which they are accomplished. After 
appointment the trustee will file monthly reports with the plaintiff, 
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.
    The proposed Final Judgment requires that prior to the consummation 
of the transaction, defendants will maintain the independence of their 
respective radio stations in Boston, St. Louis, and Baltimore. 
Following the consummation of CBS's acquisition of ARS, CBS is required 
to maintain WEEI-AM, WEGQ-FM, WAAF-FM, and WRKO-AM in Boston, KSD-FM 
and KLOU-FM in St. Louis, and WOCT-FM in Baltimore as separate and 
apart from defendant CBS's other Boston, St. Louis, and Baltimore 
stations, pending divestiture. The Judgment also contains provisions to 
ensure that these stations will be preserved, so that the stations 
remain viable, aggressive competitors after divestiture.
    The proposed Final Judgment also prohibits CBS from entering into 
certain agreements with other Boston, St. Louis, and Baltimore radio 
stations without providing at least thirty (30) days' notice to the 
Department of Justice. Specifically, CBS must notify the Department 
before acquiring any interest in another Boston, St. Louis, or 
Baltimore radio station. Such acquisitions could raise competitive 
concerns but might be too small to be reported otherwise under the 
Hart-Scott-Rodino (``HSR'') premerger notification statute. Moreover, 
CBS may not agree to sell radio advertising time for any other Boston, 
St. Louis, or Baltimore radio station without providing plaintiff with 
notice. In particular, the provision requires CBS to notify the 
Department before it enters into any Joint Sales Agreements (``JSAs''), 
where one station takes over another station's advertising time, or any 
Local Marketing Agreements (``LMAs''), where one station takes over 
another station's broadcasting and advertising time, or other 
comparable arrangements, in the Boston, St. Louis, or Baltimore areas. 
Agreements whereby CBS sells advertising for or manages other Boston, 
St. Louis, or Baltimore area radio stations would effectively increase 
its market share in these MSAs. Despite their clear competitive 
significance, JSAs probably would not be reportable to the Department 
under the HSR Act. Thus, this provision in the proposed Final Judgment 
ensures that the Department will receive notice of and be able to act, 
if appropriate, to stop any agreements that might have anticompetitive 
effects in the Boston, St. Louis, and Baltimore markets.
    The relief in the proposed Final Judgment is intended to remedy the 
likely anticompetitive effects of CBS's proposed transaction with ARS 
in Boston, St. Louis, and Baltimore. Nothing in this Final Judgment is 
intended to limit the plaintiff's ability to investigate or to bring 
actions, where appropriate, challenging other past or future activities 
of defendants in the Boston, St. Louis, and Baltimore MSAs.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit 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 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

[[Page 18047]]

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 entry. The comments 
and the response of the plaintiff will be filed with the Court and 
published in the Federal Register.
    Written comments should be submitted to: Craig W. Conrath, Chief, 
Manager Task Force, Antitrust Division, United States Department of 
Justice, 1401 H Street, NW., Suite 4000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and that 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

    Plaintiff considered, as an alternative to the proposed Final 
Judgment, a full trial on the merits of its Complaint against 
defendants. Plaintiff is satisfied, however, that the divestiture of 
WEEI-AM, WEGQ-FM, WAAF-FM, and WRKO-AM in Boston, KSD-FM and KLOU-FM in 
St. Louis, and WOCT-FM in Baltimore, and other relief contained in the 
proposed Final Judgment will preserve viable competition in the sale of 
radio advertising time on stations serving the Boston, St. Louis, and 
Baltimore 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 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 he basis of the Competitive 
Impact Statement and Response to Comments 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 Cas. 
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 discretion 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 transactions.

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.

    Date: March 31, 1998.

    Respectfully submitted,
Allen P. Grunes,
Merger Task Force, U.S. Department of Justice, Antitrust Division, 1401 
H Street, N.W.; Suite 4000, Washington, D.C. 20530, (202) 307-0001.

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 (302 + 302 + 202 +202 
= 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 numbers 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

[[Page 18048]]

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, Allen P. Grunes, hereby certify that, on March, 31, 1998, I 
caused the foregoing document to be served on defendants CBS 
Corporation and American Radio Systems 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 CBS Corporation.

Timothy J. O'Rourke,
Dow, Lohnes & Albertson, 1200 New Hampshire Ave., N.W., Washington, 
D.C. 20036, Counsel of American Radio Systems Corporation.

Allen P. Grunes,
[FR Doc. 98-9374 Filed 4-10-98; 8:45 am]
BILLING CODE 4410-11-M