[Federal Register Volume 64, Number 10 (Friday, January 15, 1999)]
[Notices]
[Pages 2668-2677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-826]


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DEPARTMENT OF JUSTICE

Antitrust Division


Proposed Final Judgment and Competitive Impact Statement; United 
States of America v. Chancellor Media Corporation and Whiteco 
Industries, Inc.

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 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 of America v. Chancellor Media Corporation and Whiteco 
Industries Inc., Case No. 1:98CV02875. 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. 16(b)-(h).
    The United States filed a civil antitrust Complaint on November 25, 
1998, alleging that the proposed acquisition of Whiteco Industries Inc. 
(``Whiteco'') by Chancellor Media Corporation (``Chancellor'') would 
violate section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint 
alleges that Chancellor and Whiteco compete head-to-head to sell 
outdoor bulletin advertising in seven counties: (1) Hartford County, 
Connecticut; (2) Shawnee County, Kansas; (3) Leavenworth County, 
Kansas; (4) Potter County, Texas; (5) Nolan County, Texas; (6) 
Westmoreland County, Pennsylvania and (7) Washington County, 
Pennsylvania (collectively ``the Seven Counties''). Outdoor advertising 
companies sell advertising space, such as on bulletins, to local and 
national customers. The outdoor bulletin advertising business in the 
Seven Counties is highly concentrated. Chancellor through its 
subsidiary, Martin Media, and Whiteco have a combined share of revenue 
ranging from about 48 percent to 88 percent in the Seven Counties. 
Unless the acquisition is blocked, competition would be substantially 
lessened in the Seven Counties, and advertisers would pay higher 
prices.
    The prayer for relief seeks: (a) An adjudication that the proposed 
transaction 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 Chancellor to complete its acquisition of Whiteco, 
yet preserves competition in the Seven Counties where the transaction 
raises significant competitive concerns. A Stipulation and proposed 
Final Judgment embodying the settlement were filed at the same time the 
Complaint was filed.
    The proposed settlement requires Chancellor to divest bulletin 
faces equal to the number of faces operated by Whiteco in:

(1) Hartford County, Connecticut;
(2) Shawnee County, Kansas;
(3) Leavenworth County, Kansas;
(4) Potter County, Texas;
(5) Nolan County, Texas; and
(6) Westmoreland and Washington Counties, Pennsylvania

Unless the plaintiff grants a time extension, Chancellor must divest 
these outdoor bulletin advertising assets within six (6) months after 
the filing of the Complaint in this action. Finally, in the event that 
the Court does not, for any reason, enter the Final Judgment within 
that six-month period, the divestitures are to occur within five (5) 
business days after notice of entry of the Final Judgment.
    If Chancellor does not divest the bulletin advertising assets in 
the specified counties 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 that, until the divestitures 
mandated by the Final Judgment have been accomplished, Chancellor shall 
take all steps necessary to maintain and operate the bulletin 
advertising assets as active competitors; maintain the management, 
staffing, sales and marketing of the bulletin advertising assets; and 
maintain the bulletin advertising assets in operable condition at 
current capacity configurations. Further, the proposed Final Judgment 
requires Chancellor to give the United States prior notice regarding 
certain future outdoor bulletin advertising acquisitions or agreements 
pertaining to the sale of outdoor advertising in the Seven Counties.
    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.
    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, 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 2669]]

    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.

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. 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 though the 
same were in full force and effect as an Order of the Court.
    (4) Defendants shall not consummate the transaction sought to be 
enjoined by the Complaint herein before the Court has signed this 
stipulation and order.
    (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 (a) the plaintiffs withdraws its consent, as 
provided in paragraph 2 above, or (b) 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: November 23, 1998.

    For Plaintiff United States of America:
Renee Eubanks,
U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401 
H Street, NW, Suite 4000, Washington, DC 20005, (202) 307-0001.

    For Defendant Chancellor Media Corporation:
Bruce Prager
Steven Sculman,
Latham and Watkins, 1001 Pennsylvania Avenue, Suite 1300, Washington, 
DC 20004, (202) 637-2200.

    For Defendants Whiteco Industries, Inc. and Metro Management 
Associates:
Charles Biggio,
Akin, Gump, Strauss, Hauer & Feld, L.L.P. 590 Madison Avenue, 20th 
Floor, New York, NY 10022, (212) 672-1000.

    So ordered:
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United States District Judge

Certificate of Service

    I, Renee Eubanks, hereby certify that, on November 25, 1998, I 
caused the foregoing document to be served on defendants Chancellor 
Media Corporation, Whiteco Industries, and Metro Management Associates 
having a copy mailed, first-class, postage prepaid, to:
Bruce J. Prager
Steven H. Schulman,
Latham & Watkins, 1001 Pennsylvania Ave., NW, Suite 1300, Washington, 
DC 20004, Counsel for Chancellor Media Corporation.
Charles Biggio,
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 590 Madison Avenue, 20th 
Floor, New York, NY 10022, Counsel for Whiteco Industries, Inc. and 
Metro Management Associates.

Final Judgment

    Whereas, plaintiff, the United States of America, filed its 
Complaint in this action of November 25, 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 essence of this Final Judgment is prompt and 
certain divestiture of the outdoor advertising assets in the Seven 
Counties identified below to ensure that competition is substantially 
preserved;
    And whereas, plaintiff requires defendants to make the divestitures 
for the purpose of maintaining the current level of competition in the 
sale of outdoor advertising;
    And whereas, defendants have represented to the plaintiff that the 
divestitures ordered herein can and will be made and that defendants 
will not later raise claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestitures 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. Judisdiction

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

II. Definitions

    As used in this Final Judgment:
    A. ``DOJ means the Antitrust Division of the United States 
Department of Justice.
    B. ``Chancellor'' means defendant Chancellor Media Corporation, a 
Delaware corporation with its headquarters in Dallas, Texas, and its 
successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and directors, officers, managers, 
agents, and employees, including but not limited to Martin Media, L.P. 
(``Martin''), a limited partnership with its headquarters in Dallas, 
Texas.
    C. ``Martin'' means Martin Media L.P., a limited partnership with 
its headquarters in Dallas, Texas, and its successors, assigns, 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and directors, officers, managers, agents, and employees.
    D. ``Whiteco'' means defendant Whiteco Industries, Inc., a Nebraska 
corporation with its headquarters in Merrillville, Indiana, and its 
successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint

[[Page 2670]]

ventures, and directors, officers, managers, agents, and employees.
    E. ``Metro'' means defendant Metro Management Associates, an 
Indiana General Partership with its headquarters in Merrillville, 
Indiana, and its successors, assigns, subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and directors, officers, 
managers, agents, and employees.
    F. ``Defendants'' means Chancellor, Whiteco, and Metro.
    G. ``Advertising Assets'' means the outdoor advertising bulletin 
faces equal in number to, and having approximately the same market and 
rental value as, the faces owned and operated by Whiteco or Metro, as 
of the date the complaint in this action is filed, in each of these 
Seven Counties: (1) Hartford County, Connecticut; (2) Shawnee County, 
Kansas; (3) Leavenworth County, Kansas; (4) Potter County, Texas; (5) 
Nolan County, Texas; (6) Westmoreland County, Pennsylvania; and (7) 
Washington County, Pennsylvania, with the exception of the 23 bulletin 
faces located on I-70, west of Exit 4 in the county, (collectively 
``the Seven Counties''). This includes all tangible and intangible 
assets used in the sale of outdoor advertising on those bulletin faces 
in each of the Seven Counties including: All real property (owned or 
leased); all licenses, permits and authorizations issued by any 
governmental organization relating to the operation of the bulletin 
faces; and all contracts, agreements, leases, licenses, commitments and 
understandings pertaining to the sale of outdoor advertising on those 
bulletin faces.
    H. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom Chancellor and Whiteco divest the Advertising Assets pursuant to 
this Final Judgment.

III. Applicability

    A. The provisions of this Final Judgment apply to the defendants, 
their successors and assigns, their subsidiaries, 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 their outdoor 
advertising business in any of the Seven Counties, that the Acquirer or 
Acquirers agree to be bound by the provisions of this Final Judgment.

IV. Divestiture

    A. Chancellor is hereby ordered and directed in accordance with the 
terms of this Final Judgment, within six (6) months after the filing of 
the Complaint in this matter or five (5) days after notice of the entry 
of this Final Judgment by the Court, whichever is later, to divest the 
Advertising Assets to an Acquirer (or Acquirers) acceptable to DOJ in 
its sole discretion.
    B. Defendants shall use their best efforts to accomplish the 
divestitures as expeditiously and timely as possible. DOJ, in its sole 
discretion, may extend the time period for any divestiture 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 of the Advertising Assets described in this 
Final Judgment. Defendants shall inform any person making an inquiry 
regarding a possible purchase that the sale is being made pursuant to 
this Final Judgment and provide such person with a copy of this Final 
Judgment. Defendants shall also offer to furnish to all prospective 
Acquirers, subject to customary confidentiality assurances, all 
information regarding the Advertising 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 DOJ at the same time that such 
information is made available to any other person.
    D. Defendants shall permit prospective Acquirers of the Advertising 
Assets to have reasonable access to personnel and to make such 
inspection of the physical facilities of the Advertising Assets and any 
and all financial, operational, or other documents and information 
customarily provided as part of a due diligence process.
    E. The defendants shall not take any action that will impede in any 
way the divestiture of the Advertising Assets.
    F. Divestiture of the Advertising Assets may be made to one or more 
Acquirers, so long as there is only one acquirer for any particular 
county's assets, and provided that in each instance it is demonstrated 
to the sole satisfaction of DOJ that the Advertising Assets will remain 
viable and the divestiture of such advertising assets will remedy the 
competitive harm alleged in the complaint. The divestitures, whether 
pursuant to Section IV or Section V of this Final Judgment:

    (1) Shall be made to an Acquirer (or Acquirers) who it is 
demonstrated to DOJ's sole satisfaction has or have the intent and 
capability (including the necessary managerial, operational, and 
financial capability) of competing effectively in the sale of 
outdoor advertising; and
    (2) Shall be accomplished so as to satisfy DOJ, in its sole 
discretion, that none of the terms of any agreement between an 
Acquirer (or Acquirers) and Chancellor or Whiteco give Chancellor or 
Whiteco the ability unreasonably to raise the Acquirer's (or 
Acquirers') costs, to lower the Acquirer's (or Acquirers') 
efficiency, or otherwise to interfere with the ability of the 
Acquirer (or Acquirers) to compete effectively.

V. Appointment of Trustee

    A. In the event that defendants have not divested the Advertising 
Assets within the time specified in Section IV(A) of this Final 
Judgment, the Court shall appoint, on application of the United States, 
a trustee selected by DOJ in its sole discretion to effect the 
divestiture of the Advertising Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Advertising 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 Sections IV and X of this 
Final Judgment, 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 of Advertising Assets at the 
earliest possible time to an Acquirer (or Acquirers) acceptable to DOJ 
in its sole discretion, and shall have such other powers as this Court 
shall deem appropriate. Defendants shall not object to a sale by the 
trustee on any grounds other than the trustee's malfeasance. Any such 
objections 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

[[Page 2671]]

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 as 
appropriate according to ownership of the assets 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 divested business 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 use their best efforts to assist the trustee in 
accomplishing the required divestitures, including best efforts to 
effect all necessary consents and regulatory approvals. The trustee, 
and any consultants, accountants, attorneys and other persons retained 
by the trustee, shall have full and complete access to the personnel, 
books, records, and facilities of the businesses to be divested, and 
defendants shall develop financial or other information relevant to the 
businesses 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 
Acquirers of the Advertising Assets to have reasonable access to 
personnel and to make such inspection of physical facilities and any 
and all financial, operational or other documents and other 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 pursuant to 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 businesses to be divested, 
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 the businesses to be divested.
    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 
report 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 enter thereafter 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 by a period requested by DOJ.

VI. Notice

    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. 18a (the ``HSR Act''), 
defendants, without providing advance notification to DOJ, shall not 
directly or indirectly acquire any assets of or any interest, including 
any financial, security, loan, equity or management interest, in any 
outdoor advertising business in any of the Seven Counties that 
constitute the greater of (i) four bulletin faces, or (ii) $250,000 in 
bulletin face assets in any one county during a five-year period. For 
the purposes of this limitation, there shall be two consecutive five-
year periods. Acquisitions during each of these five-year periods shall 
be aggregated, with the first period ending five years after the Final 
Judgment is entered, and the second period beginning immediately upon 
the expiration of the first five-year period.
    Such notification shall be provided to the DOJ 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 through 9 of the instructions must be provided only about 
outdoor advertising operations in Seven Counties. Notification shall be 
provided at least thirty (30) days prior to acquiring any such 
interest, 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 discussing the proposed transaction. If 
within the 30-day period after notification, representatives of DOJ 
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. 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.

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 DOJ, 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 businesses to be divested that are the 
subject of the binding contract, together with full details of same. 
Within fifteen (15) calendar days of receipt by DOJ of notice, DOJ may 
request from defendants, the proposed Acquirer (or Acquirers), or any 
other third party Acquirer or Acquirers additional information 
concerning the proposed divestitures and the proposed Acquirer or 
Acquirers. 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 DOJ has been provided the additional 
information requested from defendants, the proposed Acquirer (or 
Acquirers), and any third party, whichever is later, DOJ shall provide

[[Page 2672]]

written notice to defendants and the trustee, if there is one, stating 
whether or not it objects to the proposed divestitures. If DOJ provides 
written notice to defendants and the trustee that DOJ does not object, 
then the divestitures may be consummated, subject only to defendants' 
limited right to object to the sale under Section V(B) of the Final 
Judgment. Absent written notice that DOJ does not object to the 
proposed Acquirer (or Acquirers) or upon objection by DOJ, 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. 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 DOJ an 
affidavit as to the fact and manner of compliance with 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 businesses to be divested, 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 for the Advertising Assets and 
to provide required information to prospective Acquirers.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to DOJ an affidavit that 
describes in detail all actions they have taken and all steps they have 
implemented on an on-going basis to preserve the Advertising Assets 
pursuant to Section IX of this Final Judgment. The affidavit also shall 
describe, but not be limited to, the efforts of defendants to maintain 
and operate the Advertising Assets as active competitors; maintain the 
management, staffing, sales, and marketing of the Advertising Assets; 
and maintain the Advertising Assets in operable condition at current 
capacity configurations. Defendants shall deliver to DOJ 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 the change is implemented.
    C. Until one year after such divestiture has been completed, 
defendants shall preserve all records of all efforts made to preserve 
the business to be divested and effect the divestitures.

IX. Preservation of Assets

    Until the divestitures required by the Final Judgment have been 
accomplished, defendants shall take all steps necessary to maintain and 
operate the Advertising Assets in Hartford County, Connecticut, and 
Westmoreland and Washington Counties, Pennsylvania, as active 
competitors; maintain sufficient management and staffing, maintain 
sales and marketing of the Advertising Assets; and maintain the 
Advertising Assets in operable condition at current capacity 
configurations. In each of the remaining Counties, defendants shall 
maintain and operate the Advertising Assets as active competitors, such 
that the sales and marketing of the Advertising Assets shall be 
conducted separate from, and in competition with, Chancellor's bulletin 
faces in each of the respective counties; defendants also shall 
maintain these Advertising Assets in operable condition at current 
capacity configurations. Defendants shall take no action that would 
jeopardize the divestitures described in this Final Judgment.

X. Financing

    The defendants are ordered and directed not to finance all or any 
part of any purchase by an Acquirer (or Acquirers) made pursuant to 
Sections IV or V of this Final Judgment.

XI. Compliance Inspection

    For purposes 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 plaintiff, upon the 
written request of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to the defendants made to 
their principal offices, shall be permitted:

    (1) Access during office hours of the defendants to inspect and 
copy all books, ledgers, accounts, correspondence, memoranda, and 
other records and documents in the possession or under the control 
of the defendants, who may have counsel present, relating to the 
matters contained in this Final Judgment; and
    (2) Subject to the reasonable convenience of the defendants and 
without restraint or interference from any of them, to interview, 
either informally or on the record, their officers, employees, and 
agents, who may have counsel present, regarding any such matters.

    B. Upon the written request of the Assistant Attorney General in 
charge of the Antitrust Division, made to the defendants' principal 
offices, the defendants shall submit such written reports, under oath 
if requested, with respect to any matter contained in the Final 
Judgment.
    C. No information or documents obtained by the means provided in 
Sections VIII or XI of this Final Judgment shall be divulged by a 
representative of the 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 the 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 the 
defendants to the plaintiff, the defendants represent and identify 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 the defendants mark 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 the plaintiff to the defendants prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding) to which the defendants are 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; however, 
all Whiteco and Metro obligations under the terms of this Final 
Judgment cease once Whiteco and Metro irrevocably convey the 
Advertising

[[Page 2673]]

Assets (owned by Whiteco and/or Metro) to be divested by Chancellor 
pursuant to Section IV.

XIV. Public Interest

    Entry of this Final Judgment is in the public interest.
Dated:-----------------------------------------------------------------
----------------------------------------------------------------------
United States District Judge

Certificate of Service

    I, Renee Eubanks, hereby certify that, on November 25, 1998, I 
caused the foregoing document to be served on defendants Chancellor 
Media Corporation, Whiteco Industries, and Metro Management Associates 
having a copy mailed, first-class, postage prepaid, to:
Bruce J. Prager
Steven H. Schulman,
Latham & Watkins, 1001 Pennsylvania Ave., NW, Suite 1300, Washington, 
DC 20004, Counsel for Chancellor Media Corporation.
Charles Biggio,
Akin, Gump, Strauss, Hauer & Field, L.L.P., 590 Madison Avenue, 20th 
Floor, New York, NY 10022, Counsel for Whiteco Industries, Inc. and 
Metro Management Associates.

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. 
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 25, 1998, 
alleging that a proposed acquisition of Whiteco Industries, Inc. and 
Metro Management Association (collectively ``Whiteco'') by Chancellor 
Media Corporation (``Chancellor'') would violate section 7 of the 
Clayton Act, 15 U.S.C. 18. The Complaint alleges that Chancellor and 
Whiteco compete head-to-head to sell outdoor bulletin advertising in 
seven counties: (1) Hartford County, Connecticut; (2) Shawnee County, 
Kansas; (3) Leavenworth County, Kansas; (4) Potter Country, Texas; (5) 
Nolan County, Texas; (6) Westmoreland County, Texas; and (7) Washington 
County, Texas, (collectively ``the Seven Counties''). Outdoor 
advertising companies sell advertising space, such as on billboards, to 
local and national customers. The outdoor advertising business in the 
Seven Counties is highly concentrated. Chancellor and Whiteco have a 
combined share of revenue ranging from about 48 percent to a virtual 
monopoly in the Seven Counties. Unless the acquisition is blocked, 
competition would be substantially lessened in the Seven Counties, and 
advertisers would pay higher prices.
    The prayer for relief seeks: (a) An adjudication that the proposed 
transaction 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 Chancellor to complete its acquisition of Whiteco, 
yet preserves competition in the Seven Counties where the transaction 
raises 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 Chancellor to divest outdoor 
bulletin advertising assets equal in number to, and having 
approximately the same market and rental value as, the outdoor bulletin 
advertising assets operated by Whiteco in each of the Seven Counties. 
In doing so, Chancellor may divest outdoor bulletin advertising assets 
currently owned by either Whiteco or Chancellor. Unless the plaintiff 
grants a time extension, Chancellor must divest these outdoor bulletin 
advertising assets within six (6) months after the filing of the 
Complaint in this action or within five (5) business days after notice 
of entry of the Final Judgment, whichever is later.
    If Chancellor does not divest the outdoor bulletin advertising 
assets in the specified counties 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 that, until the 
divestitures mandated by the Final Judgment have been accomplished in 
Hartford, Washington and Westmoreland Counties, Chancellor, Whiteco 
and/or Metro shall take all steps necessary to maintain and operate the 
outdoor bulletin advertising assets as active competitors; maintain 
sufficient management and staffing, and maintain sales and marketing of 
the outdoor bulletin advertising assets; and maintain the outdoor 
bulletin advertising assets in operable condition at current capacity 
configurations. In the remaining counties, Chancellor, Whiteco and/or 
Metro shall take all steps necessary to maintain and operate the 
outdoor bulletin advertising assets as active competitors, such that 
the sale and marketing of the assets shall be conducted separate from, 
and in competition with Chancellor's bulletin faces in the respective 
counties. Further, the proposed Final Judgment requires Chancellor to 
give the United States prior notice regarding certain future outdoor 
advertising acquisitions or agreements pertaining to the sale of 
outdoor bulletin advertising in the Seven Counties.
    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
    Chancellor, a large nationwide operator of media businesses, 
including outdoor advertising, is a Delaware corporation headquartered 
in Dallas, Texas. Chancellor conducts some outdoor advertising business 
through its subsidiary, Martin Media, L.P. (``Martin''), a limited 
partnership headquartered in Dallas, Texas. Martin sells outdoor 
advertising in many states throughout the United States, including in 
each of the Seven Counties. In 1997 Chancellor's total revenues from 
outdoor advertising were approximately $78 million.
    Whiteco is a Nebraska corporation headquartered in Merrillville, 
Indiana. Whiteco sells outdoor advertising in 32 states, including in 
each of the Seven Counties. In 1997, its revenues from outdoor 
advertising were approximately $6.9 million.
B. Description of the Events Giving Rise to the Alleged Violations
    On August 30, 1998, Chancellor entered into an Asset Purchase 
Agreement with Whiteco. Chancellor agreed to purchase certain assets of 
Whiteco used or useful in the outdoor advertising business of Whiteco 
in the United States. The transaction is valued at approximately $930 
million.
    Chancellor and Whiteco compete for the business of advertisers 
seeking to obtain outdoor advertising space in the Seven Counties. The 
proposed acquisition of Whiteco by Chancellor would eliminate that 
competition in violation of Section 7 of the Clayton Act.

[[Page 2674]]

C. Anticompetitive Consequences of the Proposed Transaction
    The Complaint alleges that the sale of outdoor advertising in the 
Seven Counties constitutes a relevant product market and a line of 
commerce, and that each county constitutes a relevant geographic market 
and section of the country for antitrust purposes.
    Advertisers select outdoor advertising based upon a number of 
factors including, inter alia, the size of the target audience 
(individuals most likely to purchase the advertiser's products or 
services), the traffic patterns of the audience, and other audience 
characteristics. Many advertisers seek to reach a large percentage of 
their target audience by selecting outdoor advertising on highways and 
roads where vehicle traffic is high, so that the advertising will be 
frequently viewed by the target audience, or where the vehicle traffic 
is close to the advertiser's location. When different firms own outdoor 
advertising spaces that can efficiently reach that target audience, 
advertisers benefit from the competition among outdoor advertising 
providers, who offer better prices or services. Many local and/or 
national advertisers purchase outdoor advertising because outdoor 
advertising space is less expensive and more cost-efficient than other 
media at reaching the advertiser's target audience with the type of 
advertising message that the advertiser prefers to deliver.
    Outdoor advertising has prices and characteristics that are 
distinct from other advertising media. An advertiser's evaluation of 
the importance of these characteristics depends on the type of 
advertising message the advertiser wishes to convey and the price the 
advertiser is willing to pay to deliver that message. Many advertisers 
who use outdoor advertising also advertise in other media, including 
radio, television, newspapers and magazines, but use outdoor 
advertising when they want a large number of exposures to consumers at 
a low cost per exposure. Because each exposure is brief, outdoor 
advertising is most suitable for highly visual, limited information 
advertising.
    For many advertising customers, outdoor advertising's particular 
combination of characteristics makes it an advertising medium for which 
there are no close substitutes. Such customers who want or need to use 
outdoor advertising would not switch to another advertising medium if 
outdoor advertising prices increased by a small but significant amount. 
Although some local and national advertisers may switch some of their 
advertising to other media, rather than absorb a price increase in 
outdoor advertising space, the existence of such advertisers would not 
prevent outdoor advertising companies in the Seven Counties from 
profitably raising their prices a small but significant amount. At a 
minimum, outdoor advertising companies could profitably raise prices to 
those advertisers who view outdoor advertising as a necessary 
advertising medium for them, or as a necessary advertising complement 
to other media. Outdoor advertising companies negotiate prices 
individually with advertisers. During individual price negotiations 
between advertisers and outdoor advertising companies, advertisers 
provide the outdoor advertising companies with information about their 
advertising needs, including their target audience and the desired 
exposure. Outdoor advertising companies thus have the ability to charge 
advertisers differing rates based in part on the number and 
attractiveness of competitive outdoor advertising companies that can 
meet a particular advertiser's specific target needs. Because of this 
ability to price discriminate among customers, outdoor advertising 
companies may charge higher prices to advertisers that view outdoor 
advertising as particularly effective for their needs, while 
maintaining lower prices for other advertisers.
    The Complaint alleges that Chancellor's proposed acquisition of 
Whiteco would lessen competition substantially in the sale of outdoor 
advertising in each of the Seven Counties. The proposed transaction 
would create further market concentration in already highly 
concentrated markets, and Chancellor would control a substantial share 
of the outdoor advertising revenues in these markets. Using a measure 
of market concentration called the Herfindahl-Hirschman Index 
(``HHI''), explained in Appendix A annexed hereto, post acquisition:

    a. In Hartford County, Connecticut, Chancellor's share of the 
outdoor advertising market, based on advertising revenues, would 
increase to 100 percent. The approximately post-merger HHI would be 
10000, representing an increase of about 4992.
    b. In Shawnee County, Kansas, Chancellor's share of the outdoor 
advertising market, based on advertising revenues, would increase to 
about 48 percent. The approximate post-market HHI would be 5008, 
representing an increase of about 1144.
    c. In Leavenworth County, Kansas, Chancellor's share of the 
outdoor advertising market, based on advertising revenues, would 
increase to about 60 percent. The approximate post-merger HHI would 
be 4130, representing an increase of about 832.
    d. In Potter County, Texas, Chancellor's share of the outdoor 
advertising market, based on advertising revenues, would increase to 
about 82 percent. The approximate post-merger HHI would be 6959, 
representing an increase of about 1050.
    e. In Nolan County, Texas, Chancellor's share of the outdoor 
advertising market, based on advertising revenues, would increase to 
about 76 percent. The approximate post-merger HHI would be 6049, 
representing an increase of about 1920.
    f. In Westmoreland County, Pennsylvania, Chancellor's share of 
the outdoor advertising market, based on advertising revenues, would 
increase to about 71 percent. The approximate post-merger HHI would 
be 5454 representing an increase of about 2516.
    g. In Washington County, Pennsylvania, Chancellor's share of the 
outdoor advertising market, based on advertising revenues, would 
increase to about 88 percent. The approximate post-merger HHI would 
be 8888 representing an increase of about 1560.

    In each of the Seven Counties, Chancellor and Whiteco compete head-
to-head and, for many local and/or national advertisers buying space, 
they are close substitutes for each other. During individual price 
negotiations, advertisers that desire to reach a certain audience can 
help ensure competitive prices by ``playing off'' Whiteco against 
Chancellor. Chancellor's acquisition of Whiteco will end this 
competition. After the acquisition, such advertisers will be unable to 
reach their desired audiences with equivalent efficiency without using 
Chancellor's outdoor advertising. Because advertisers seeking to reach 
these audiences would have inferior alternatives to the merged entity 
as a result of the acquisition, the acquisition would give Chancellor 
the ability to raise prices and reduce the quality of its service to 
some of its advertisers in each of the Seven Counties.
    New entry into the advertising market in response to a small but 
significant price increase by the merged parties in any of these 
markets is unlikely to be timely and sufficient to render the price 
increase unprofitable.
    For all of these reasons, plaintiff concludes that the proposed 
transaction would lessen competition substantially in the sale of 
outdoor advertising in the Seven Counties, eliminate actual and 
potential competition between Chancellor and Whiteco, and result in 
increased prices and/or reduced quality of services of outdoor 
advertisers in each of the Seven Counties, all in violation of section 
7 of the Clayton Act.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment would preserve existing competition in 
the sale

[[Page 2675]]

of outdoor advertising space in Seven Counties. It requires the 
divestiture of bulletin faces equal in number to, and having 
approximately the same market and rental value as, the number of faces 
operated by Whiteco in the Seven Counties. Exempt from the divestiture 
are the 23 bulletin faces located on I-70 west of Exit 4 in Washington 
County, Pennsylvania. This relief maintains the level of competition 
that existed premerger and ensures that the affected markets will 
suffer no reduction in competition as a result of the merger. 
Advertisers will continue to have alternatives to the merged firm in 
purchasing outdoor advertising. Finally, the ownership structure is 
maintained in that the number of competitors who may compete for 
advertisers' business will remain unchanged.
    Unless plaintiff grants an extension of time, the divestitures must 
be completed within six (6) months after the filing of the Complaint in 
this matter or within five (5) business days after notice of entry of 
this Final Judgment by the Court, whichever is later. Until the 
divestitures take place in Hartford, Washington and Westmoreland 
Counties, defendants must maintain and operate the advertising assets 
as active competitors; maintain sufficient management and staffing, 
maintain sales and marketing of the advertising assets; and maintain 
the advertising assets in operable condition at current capacity 
configurations. In the remaining counties, defendants must maintain and 
operate the advertising assets as active competitors; such that the 
sales marketing of the assets is conducted separate from, and in 
competition with the Chancellor's bulletin faces in the respective 
counties.
    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 outdoor advertising business 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 outdoor advertising businesses. In addition, the purchaser 
or purchasers must intend in good faith to continue the operations of 
the outdoor advertising businesses 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 
ensure that the outdoor advertising businesses to be divested remain 
competitive with Chancellor's other outdoor advertising businesses in 
the Seven Counties.
    If defendants fail to divest these outdoor advertising assets 
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 the advertising assets, 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. 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 contains provisions to ensure that 
these outdoor advertising assets will be preserved, so that the 
advertising assets remain viable competitors after divestiture.
    The proposed Final Judgment requires Chancellor to provide at least 
thirty (30) days' notice to the Department of Justice before acquiring 
more than a de minimis interest in any assets of, or any interest in, 
another outdoor advertising company in the Seven Counties. 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, Chancellor may not agree to sell 
outdoor advertising space for any other outdoor advertising company in 
the Seven Counties without providing plaintiff with notice. 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 Seven 
Counties.
    The relief in the proposed Final Judgment is intended to remedy the 
likely anticompetitive effects of Chancellor's proposed transaction 
with Whiteco in the Seven Counties. 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 Seven Counties.

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. 
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 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, 
Merger Task Force, Antitrust Division, United States Department of 
Justice,

[[Page 2676]]

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 and 
other relief contained in the proposed Final Judgment will preserve 
viable competition in the sale of outdoor advertising space in the 
Seven Counties. 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. 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 the 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. 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, 406 F. Supp. at 716 
(citations omitted); United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------

    The relief obtained in this case is strong and effective relief 
that should fully address the competitive harm posed by the proposed 
transaction.

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: December 16, 1998.

      Respectfully submitted,
Renee Eubanks,
Merger Task Force, U.S. Department of Justice, Antitrust Division, 1401 
H Street, NW; Suite 4000, Washington, DC 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 (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, Renee Eubanks hereby certify that, on December 16, 1998, I 
caused the foregoing document to be served on defendants Whiteco 
Industries, Inc, Metro Management Associates, and

[[Page 2677]]

Chancellor Media Corporation by having a copy mailed, first-class, 
postage prepaid, to:
Steven H. Schulman,
Bruce J. Prager,
Latham & Watkins, 1001 Pennsylvania Ave., NW, Suite 1300, Washington, 
DC 20004, Counsel for Chancellor Media Corporation.
Charles Biggio,
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 590 Madison Avenue, 20th 
Floor, New York, NY 10022, Counsel for Whiteco Industries, Inc. and 
Metro Management Associates.

[FR Doc. 99-826 Filed 1-14-99; 8:45 am]
BILLING CODE 4410-11-M