[Federal Register Volume 65, Number 53 (Friday, March 17, 2000)]
[Notices]
[Pages 14616-14625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4593]


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DEPARTMENT OF JUSTICE

Antitrust Division


Proposed Final Judgment and Competitive Impact Statement: United 
States of America v. CBS Corporation, Infinity Broadcasting Corporation 
and Outdoor Systems, 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. CBS Corporation, Infinity Broadcasting Corporation 
and Outdoor Systems, Inc. Case No. 1:99CV03212. The proposed Final 
Judgment is subject to approval by the Court after the expiration of 
the statutory 60-day public comment period and compliance with the 
Antitrust Procedures and Penalties Act. 15 U.S.C. Sec. 16(b)-(h).
    The United States filed a civil antitrust Complaint on December 6, 
1999, alleging that the proposed acquisition of Outdoor Systems, Inc. 
(``OSI'') by CBS Corporation (``CBS'') would violate Section 7 of the 
Clayton Act, 15 U.S.C. 18. The Complaint alleges that CBS and OSI 
compete head-to-head to sell out-of-home advertising displays in Three 
Metropolitan Areas: (1) New York, New York; (2) New Orleans, Louisiana; 
and (3) Phoenix, Arizona; (collectively ``the Three Metropolitan 
Areas''). Outdoor advertising companies sell out-of-home advertising 
display space to local and national customers. The out-of-home 
advertising display business in the Three Metropolitan Areas is highly 
concentrated. CBS, through TDI, a subsidiary of CBS-owned Infinity 
Broadcasting Corporation, and OIS would have a combined share of 
revenue is excess of 60 percent in New York, New York and a combined 
share in excess of 75 percent in Phoenix, Arizona and New Orleans, 
Louisiana. Unless the acquisition is blocked, competition would be 
substantially lessened in the Three Metropolitan Areas, and advertisers 
would likely 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 CBS to complete its acquisition of OSI, yet 
preserves competition in the Three Metropolitan Areas 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.
    In Phoenix and New Orleans, the defendants are required to divest 
assets equivalent to all the out-of-home assets of one of the merging 
parties, thus completely restoring the pre-merger industry structure 
and resolving any competitive concerns. In New York, the defendants are 
required to divest assets yielding a net revenue of no less than $25.3 
million, which is equivalent to all the out-of-home advertising assets 
of OSI with the exception of its bus shelter and subway businesses. 
With respect to these two businesses, if the parties possess both 
contracts as of February 2000, they are required to divest one of these 
businesses.
    Unless the plaintiff grants a time extension, CBS must divest these 
outdoor advertising assets with one-hundred and fifty (150) days 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 with that 
one-hundred and fifty day period, the divestitures are to occur within 
five (5) business days after notice of entry of the Final Judgment.
    If CBS does not divest the assets within the time periods specified 
in the final judgment, 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, CBS shall take all steps necessary to maintain 
and operate the divestiture assets as active competitors; maintain the 
management, staffing, sales and marketing of the out-of-home 
advertising displays; and maintain out-of-home advertising displays in 
operable condition. Further, the proposed Final Judgment requires CBS 
to give the United States prior notice regarding certain future outdoor 
advertising acquisitions or agreements pertaining to the sale of 
outdoor advertising in the Three Metropolitan Areas,
    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 Willie Hudgins, Assistant Chief, Litigation II, 
Antitrust Division, 1401 H Street, NW., Suite 3000, Washington,

[[Page 14617]]

D.C. 20530 (telephone: 202-307-0001). Copies of the Complaint, 
Stipulation, proposed Final Judgment and Competitive Impact Statement 
are available for inspection in Room 215 of the Antitrust Division, 
Department of Justice, 325 7th 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.
    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.


Constance K. Robinson,
Director of Operations, 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. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon writing by the parties and 
submitted to the Court.
    5. In the event (a) the plaintiff 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.
    6. 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: December 6, 1999.

    For Plaintiff United States:

Renee Eubanks,
U.S. Department of Justice, Antitrust Division, Litigation II, 1401 
H Street, NW, Suite 4000, Washington, DC 20005, Washington, DC 
20005, (202) 307-0001.

    Dated December 6, 1999.

    So Ordered:

Thomas F. Hogan,
United States District Judge.
    For Defendant CBS Corporation and Infinity Broadcasting 
Corporation:

Helene Jaffe,
Weil, Gotshal & Manges, LLP, 767 Fifth Avenue, New York, NY 10153-
0119, (212) 310-8000.

    For Defendants Outdoor Systems Inc.:

Lawrence R. Fullerton,
Powell, Goldstein, Frazer, & Murphy, 1001 Pennsylvania Ave., NW, 
Washington, DC 20004, (202) 624-7282.

Final Judgment

    Whereas, plaintiff, the United States of America, filed its 
Complaint in this action on December 6, 1999, 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 out-of-home advertising assets in the Three 
Metropolitan Areas, as defined 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 out-of-home 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. Jurisdiction

    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 herein 
after defined, under Section 7 of the Clayton Act, as amended (15 
U.S.C. 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 its 
successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and directors, officers, managers, 
agents, and employees, including but not limited to, Infinity 
Broadcasting Corporation, and TDI Worldwide Inc., a subsidiary of CBS-
owned Infinity Broadcasting Corporation.
    B. ``Infinity'' means Defendant Infinity Broadcasting Corporation, 
a Delaware corporation with its headquarters in New York, New York, and 
its successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and directors, officers, managers, 
agents, and employees.
    C. ``OSI'' means Defendant Outdoor Systems, Inc., a Delaware 
corporation with its headquarters in Phoenix, Arizona, and its 
successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and directors, officers, managers, 
agents, and employees.
    D. ``Defendants'' means CBS, Infinity, and OSI.
    E. ``Net Revenues'' means gross revenues minus agency commissions 
as those terms are ordinarily and customarily calculated with respect 
to the assets covered by this Final Judgment.
    F. ``Out-of-Home Advertising Display Assets'' means:

[[Page 14618]]

    (1) CBS's business of selling advertising displays that appear on 
or in public buses in the New Orleans Metropolitan Area, the rights to 
place and sell advertising on such faces having been awarded to TDI 
through contract by the Regional Transit Authority in New Orleans or 
any other governing authority;
    (2) Either (a) CBS's business of selling advertising displays that 
appear on or in public buses in the Phoenix Metropolitan Area, the 
rights to place and sell advertising on such faces having been awarded 
to TDI through contract by the Phoenix Transit System or any other 
governing authority, or (b) a combination of out-of-home advertising 
display faces in the Phoenix Metropolitan Area, to be approved by the 
United States in its sole discretion, consisting of mix of Bulletins, 
Thirty-sheet posters, Walls, and Spectaculars that yielded Net Revenues 
in 1998 of no less than the Net Revenues generated in 1998 from the 
sale of the outdoor advertising display faces described in Section 
II(F)(2)(a); and
    (3) A combination of out-of-home advertising display faces owned 
and/or operated by the Defendants in the New York City Area, to be 
approved by the United States in its sole discretion, consisting of a 
mix of Bulletins, Thirty-sheet posters, Walls, and Spectaculars that 
yielded Net Revenues in 1998 of no less than twenty-five point three 
($25.3) million dollars.
    Out-of-Home Advertising Display Assets includes all tangible and 
intangible assets used in the sale of advertising on each of the 
display faces described above including, but not limited to, all real 
property (owned or leased); all licenses, permits and authorizations 
issued by any governmental organization relating to the operation of 
the display faces; all contracts, agreements, leases, licenses, 
commitments and understandings pertaining to the sale of advertising on 
those display faces; all applicable customer lists, contracts, 
accounts, promotional materials, and credit records pertaining to the 
sale of advertising on those display faces; all applicable logs and 
other records maintained by Defendants in connection with the display 
faces; and maps or other documents depicting the location of the 
display faces.
    G. ``New York City Subway Business'' means OSI's business of 
selling advertising on displays within the subway transit system of the 
New York City Area, including, but not limited to, subway car interior 
displays, platform postings and lighted platform displays, the rights 
to place and sell advertising on such displays pursuant to contract 
awarded by the Metropolitan Transit Authority of New York to OSI. The 
New York City Subway Business includes all tangible and intangible 
assets used in the sale of advertising on each of the display faces 
described above including, but not limited to, all real property (owned 
or leased); all licenses, permits and authorizations issued by any 
governmental organization relating to the operation of the display 
faces; all contracts, agreements, leases, licenses, commitments and 
understandings pertaining to the sale of advertising on those display 
faces; all applicable customer lists, contracts, accounts, promotional 
materials, and credit records pertaining to the sale of advertising on 
those display faces; all applicable logs and other records maintained 
by Defendants in connection with the display faces; and maps or other 
documents depicting the location of the display faces.
    H. ``New York City Bus Shelter Business'' means OSI's business of 
selling advertising on display faces mounted in glass in or on bus 
shelters and often backlit for 24-hour visibility, found along public 
bus routes in the New York City Area, the rights to place and sell 
advertising such displays, pursuant to contract awarded by the New York 
City Department of Transportation to OSI. The New York City Bus Shelter 
Business includes all tangible and intangible assets used in the sale 
of advertising on each of the display faces described above including, 
but not limited to, all real property (owned or leased); all licenses, 
permits and authorizations issued by any governmental organization 
relating to the operation of the display faces; all contracts, 
agreements, leases, licenses, commitments and understandings pertaining 
to the sale of advertising on those display faces; all applicable 
customer lists, contracts, accounts, promotional materials, and credit 
records pertaining to the sale of advertising on those display faces; 
all applicable logs and other records maintained by Defendants in 
connection with the display faces; and maps or other documents 
depicting the location of the display faces.
    I. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom CBS and OSI divest the assets required to be divested pursuant to 
this Final Judgment.
    J. ``Bulletins'' are defined as structures typically sized 14' x 
48' or larger, located primarily on major highways, expressways or 
principal arterials.
    K. ``Thirty-sheet posters'' are defined as poster panels, typically 
of lithographed or silk-screened material, typically measuring 12' x 
25' or 300 square feet or larger and located primarily on primary and 
secondary arterials.
    L. ``Walls'' are defined as painted or computer generated vinyl 
advertisements found directly on building walls.
    M. ``Spectaculars'' are defined as non-standard sized structures 
which are custom designed to gain maximum attention at key locations 
with mass consumer exposure.
    N. ``Metropolitan Areas'' means: (1) With respect to New York, New 
York, the five boroughs of Brooklyn, Queens, Manhattan, the Bronx and 
Staten Island (``New York City Area''); (2) with respect to New 
Orleans, Louisiana, the parishes of St. Tammany, Orleans and Jefferson, 
(``New Orleans Metropolitan Area'') and (3) with respect to Phoenix, 
Arizona, Maricopa County (``Phoenix Metropolitan Area'').
    O. ``Three Metropolitan Areas'' means the New York City Area, the 
Phoenix Metropolitan Area; and the New Orleans Metropolitan Area.

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 of substantially all of their out-of-home 
advertising business in any of the Three Metropolitan Areas, that the 
purchasing party or parties agree(s) to be bound by the provisions of 
this Final Judgment.

IV. Divestiture

    A. Defendants are hereby ordered and directed in accordance with 
the terms of this Final Judgment, within one hundred fifty days (150) 
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 Out-of-Home Advertising Display Assets to an 
Acquirer (or Acquirers) acceptable to the United States in its sole 
discretion.
    B. If, as of February 1, 2000, (1) CBS or OSI is deriving revenue 
from the sale of advertising on displays within the subway transit 
system of the New York City Area, in accordance with any franchise, 
contract, agreement with, understanding, or condition imposed by

[[Page 14619]]

the Metropolitan Transit Authority, and (2) CBS or OSI is deriving 
revenue from the sale of advertising on display faces found along 
public bus routes in the New York City Area, in accordance with any 
franchise, contract, agreement with, understanding, or condition 
imposed by the New York City Department of Transportation, then CBS 
and/or OSI must divest, by the terms of this Final Judgment, at their 
option, either the New York City Subway Business or the New York City 
Bus Shelter Business; and inform the United States on February 1, 2000 
which of the two businesses they intend to divest. The divestitures 
required under this subsection shall also be accomplished within one 
hundred fifth (150) calendar days 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 an Acquirer acceptable to 
the United States is its sole discretion.
    C. Defendants shall use their best efforts to accomplish the 
divestitures as expeditiously and timely as possible and shall use 
their best efforts to obtain all transit or other governing authority 
consents and approvals necessary to complete the divestitures. The 
United States, 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.
    D. In accomplishing the divestitures ordered by this Final Judgment 
Defendants promptly shall make known, by usual and customary means, the 
availability of the assets required to be divested pursuant to Section 
IV (A) and (B) of this Final Judgment (``Divestiture Assets''). 
Defendants shall inform any person making any 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 Divestiture 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 the United States at the same time that 
such information is made available to any other person.
    E. Defendants shall permit prospective Acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make such 
inspection of the physical facilities associated with the assets and 
any and all financial, operational, or other documents and information 
customarily provided as part of a due diligence process.
    F. Defendants shall not interfere with any negotiations by any 
Acquirer to employ any of Defendants' employees who work at, or whose 
principal responsibilities relate to, the Divestiture Assets.
    G. Defendants shall take no action, direct or indirect, that will 
impede in any way the operation of Divestiture Assets.
    H. Unless the United States otherwise consents in writing and 
whether pursuant to Section IV or Section V of this Final Judgment:
    (1) The divestitures in the Phoenix Metropolitan Area shall be made 
to a single Acquirer;
    (2) The divestitures in the New Orleans Metropolitan Area shall be 
made to a single Acquirer; and
    (3) The divestitures in the New York City Area of the New York City 
Subway Business or New York City Bus Shelter Business; and those assets 
described in Section II (F)(3) of this Final Judgment, shall be made to 
a single Acquirer. If, after making a reasonable, good faith effort, 
Defendants are unable to effect a sale to a single Acquirer, they may 
submit more than one Acquirer for approval by the United States which, 
in its sole discretion, may determine whether to permit such a sale.
    1. Unless the United States otherwise consents in writing, the 
divestitures pursuant to Section IV, or by trustee appointed pursuant 
to Section V of this Final Judgment, shall include all of the 
Divestiture Assets and be accomplished in such a way as to satisfy the 
United States, in its sole discretion, that the Divestiture Assets can 
and will be used by an Acquirer or Acquirers as viable, ongoing 
commercial businesses engaged in the sale of out-of-home advertising 
and that 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 the 
United States' sole satisfaction has or have the intent and capability 
(including the necessary managerial, operational, and financial 
capability) of competing effectively in the sale of out-of-home 
advertising; and (2) shall be accomplished so as to satisfy the United 
States, in its sole discretion, that none of the terms of any agreement 
between an Acquirer (or Acquirers) and CBS or OSI give CBS or OSI 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 Divestiture 
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 the United States in its sole discretion to 
effect the divestiture of the Divestiture Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. In the 
event that divestitures are required under Section IV(B), then the 
trustee shall have the right in, in its sole discretion, to divest 
either the New York City Subway Business or the New York City Bus 
Shelter Business. The trustee shall also have the right, in its sole 
discretion, to divest either the assets described in Section 
II(F)(2)(a) or the assets described in Section II(F)(2)(b). 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 VII 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 Divestiture Assets at the 
earliest possible time to an Acquirer (or Acquirers) acceptable to the 
United States 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 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

[[Page 14620]]

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 Divestiture Assets to have reasonable access to 
personnel and to make such inspection of physical facilities associated 
with the displays 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 it 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 wit 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 bee 
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 plaintiff and the Defendants, each of whom shall 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 the 
United States.

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. Sec. 18a (the ``HSR 
Act''), Defendants shall give thirty (30) days notice to the United 
States prior to acquiring any assets of or any interest, including any 
financial, security, loan, equity or management interest, in any out-
of-home display advertising business, that owns and/or operates any 
out-of-home displays that have a similar advertising purpose as the 
out-of-home displays currently held by the Defendants:
    (1) In the new Orleans metropolitan Area and the Phoenix 
Metropolitan Area that generates Net Revenues of $250,000 or greater 
over a twelve-month period (beginning when this Final Judgment is 
entered and continuing for the term of the Final Judgment); for the 
purposes of this limitation, acquisitions during each twelve-month 
period shall be aggregated; and
    (2) In the New York City Area that generates Net Revenues of $3.9 
million or greater over a twelve-month period (beginning when this 
Final Judgment is entered and continuing for the term of the Final 
Judgment); for the purposes of this limitation, acquisitions during 
each twelve-month period shall be aggregated.
    Defendants are not required, however, to give notice for any 
acquisition derived from Defendants' successful bid on any public 
contract. 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 the United States 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 and 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 
the United States of notice, the United States may request from 
Defendants, the proposed Acquirer (or Acquirers), or any other third 
party 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 the United 
States has been provided the additional information requested from 
Defendants, the proposed Acquirer (or Acquirers), and any third party, 
whichever is later, the United States shall provide written notice to 
Defendants and the trustee, if there is one, stating whether or not it 
objects to the proposed divestitures. If the United States provides 
written notice to Defendants an the trustee that the United States 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 
this Final Judgment. Absent written notice that the United States does 
not object to the proposed Acquirer (or Acquirers) or upon objection by 
the United States, a divestiture proposed under Section IV or Section V 
shall 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.

[[Page 14621]]

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 the 
United States 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 Divestiture 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 the United States 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 
Divestiture 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 Divestiture Assets as active 
competitors; maintain the management, staffing, sales, and marketing of 
the Divestiture Assets; and maintain the Divestiture Assets in operable 
condition. Defendants shall deliver to the United States 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 Divestiture Assets in each of the Three Metropolitan Areas, 
as active competitors; maintain the management, staffing, sales and 
marketing of the Divestiture Assets; and maintain the Divestiture 
Assets in operable condition. Defendants shall take no action that 
would jeopardize the divestitures required under 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 or of determining whether the Final Judgment should be 
modified or vacated, 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 of the United States Department of Justice, 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 or 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.

XIV. Public Interest

    Entry of this Final Judgment is in the public interest.

Dated: ______----------------------------------------------------------
----------------------------------------------------------------------
United States District Judge

Competitive Impact Statement

    Plaintiff, the United States of America, pursuant to Section 2(b) 
of the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C. 
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 December 6, 1999, 
alleging that a proposed acquisition of Outdoor Systems, Inc. (``OSI'') 
by CBS Corporation and Infinity Broadcasting Corporation (collectively 
``CBS'') would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The 
Complaint alleges that CBS and OSI compete head-to-head-to sell outdoor 
advertising in three metropolitan areas: (1) The New York City Area; 
(2) The New Orleans, Louisiana Metropolitan Area; and (3)

[[Page 14622]]

The Phoenix, Arizona Metropolitan Area, (collectively ``the Three 
Metropolitan Areas''). Outdoor advertising companies sell out-of-home 
advertising display space to local and national customers. The out-of-
home advertising display business in the Three Metropolitan Areas is 
highly concentrated. CBS and OSI have a combined share of revenue 
ranging from about 60 percent to over 90 percent in the Three 
Metropolitan Areas. Unless the acquisition is blocked, competition 
would be substantially lessened in the Three Metropolitan Areas, 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 CBS to complete its acquisition of OSI, yet 
preserves competition in the Three Metropolitan Areas where the 
transaction raises significant competitive concerns. A Stipulation and 
proposed Final Judgment embodying the settlement were filed along with 
the Complaint.
    The proposed Final Judgment orders CBS to divest out-of-home 
advertising displays in each of the Three Metropolitan Areas. In 
particular, CBS must divest its business of selling advertising on 
buses in the New Orleans Metropolitan Area. In the Phoenix Metropolitan 
Area, CBS is required to divest either its bus advertising business or 
out-of-home advertising displays that generated the same amount of net 
revenues. In the New York City Area, CBS will divest a package of out-
of-home advertising displays, defined in Section II F(3) of the 
proposed Final Judgment, worth approximately $25.3 million. In 
addition, if, as of February 1, 2000, CBS is deriving revenue from the 
sale of advertising on subway displays and from bus shelters in the New 
York City Area, then CBS will divest, at its option, either the subway 
or the bus shelter advertising business.
    Unless the plaintiff grants an extension of time, CBS must divest 
the out-of-home advertising displays within one hundred fifty (150) 
days after the filing of the Complaint in this action or within five 
(5) business days after notice of entry of the proposed Final Judgment, 
whichever is later.
    If CBS does not divest the out-of-home advertising displays in the 
specified areas within the divestiture period, the Court, upon 
plaintiff's application, shall appoint a trustee to sell the displays. 
The proposed Final Judgment also requires that, until the divestitures 
mandated by the proposed Final Judgment have been accomplished in the 
Three Metropolitan Areas, CBS and OSI must preserve the out-of-home 
advertising displays to be divested and take all steps necessary to 
maintain and operate them as active competitors. Further, Section VI of 
the proposed Final Judgment requires CBS to give the United States 
prior notice regarding certain future out-of-home advertising display 
acquisitions or agreements pertaining to the sale of out-of-home 
advertising in the Three Metropolitan Areas.
    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, for a period of ten years, 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, a major corporation engaged in numerous media businesses, 
including out-of-home advertising, is a Pennsylvania corporation 
headquartered in New York, New York. CBS conducts its out-of-home 
advertising business through TDI Worldwide, Inc. (``TDI''), a wholly 
owned subsidiary of CBS-owned Infinity Broadcasting Corporation 
(``Infinity''). TDI sells out-of-home advertising in various markets 
throughout the United States, including the Three Metropolitan Areas.
    Infinity is a Delaware corporation headquartered in New York, New 
York. Infinity owns and/or operates numerous radio stations in major 
markets in the United States and conducts the sale of out-of-home 
advertising through its subsidiary, TDI.
    OSI is a Delaware corporation headquartered in Phoenix, Arizona. 
OSI is the largest out-of-home advertising company in North America, 
operating over 100,000 out-of-home advertising display faces in 
approximately 90 markets throughout the United States, including in 
each of the Three Metropolitan Areas.

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

    On May 17, 1999, CBS entered into an Agreement and Plan of Merger 
with OSI. After a newly formed and wholly owned subsidiary of Infinity 
is merged into OIS, OSI shareholders will receive shares of Infinity 
valued at approximately $6.5 billion. In addition, Infinity will assume 
debt obligation of OSI valued at approximately $1.8 billion, bringing 
the total transaction value to $8.3 billion.
    CBS and OSI compete for the business of advertisers seeking to 
obtain out-of-home advertising space in the Three Metropolitan Areas. 
The proposed acquisition of OSI by CBS would eliminate that competition 
in violation of Section 7 of the Clayton Act.

C. The Relevant Markets and Concentration

    The Complaint alleges that the sale of out-of-home advertising 
constitutes a relevant product market and a line of commerce and that 
each of the Three Metropolitan Areas constitutes a relevant geographic 
market and section of the country for antitrust purposes.
    Advertisers select out-of-home advertising based on a number of 
factors, including the size of the target audience (individuals most 
likely to purchase the advertiser's products or services), the 
vehicular and pedestrian traffic patterns of the audience, as well as 
other audience characteristics. Many advertisers seek to reach a large 
percentage of their audience by selecting out-of-home advertising 
forms, like billboards, that appear on highways, roads and streets 
where vehicle and pedestrian traffic is high. This way, the 
advertisements will be viewed frequently by the advertiser's target 
audience.
    In some densely populated metropolitan areas, a significant number 
of advertisers also select out-of-home advertising displayed within 
metropolitan transit authority systems. This includes displays found on 
the sides of buses and within subway systems. Advertisers select 
advertising space within a transit system because of the large number 
of viewers who will routinely be exposed to the advertiser's message 
each day. Such viewers include commuters who use the transit system, as 
well as pedestrians and passengers in vehicles.
    Out-of-home advertising has prices and characteristics that are 
distinct from other advertising media. It is particularly suitable for 
highly visual, limited-information advertising, because consumers are 
exposed to an out-of-home advertisement for only a brief period of 
time. Out-of-home advertising is typically less expensive and more 
cost-efficient than other media at reaching an advertiser's target 
audience.

[[Page 14623]]

Many advertisers who use out-of-home advertising also advertise in 
other media, including radio, television, newspapers and magazines, but 
use out-of-home advertising when they want a large number of exposures 
to consumers at a low cost per exposure.
    For many advertising customers, out-of-home advertising has 
particular characteristics that make it an advertising medium for which 
there is no close substitute. Such customers would not switch to 
another advertising medium if out-of-home advertising prices increased 
by a small but significant amount.
    Geographically, out-of-home advertising is typically offered on a 
localized, market-by-market basis, rather than nationally or 
regionally. Much of the inventory (e.g., transit advertising contracts 
or leases for billboard space) is obtained on a local basis through 
contracts between out-of-home advertising firms and municipal 
authorities or property owners. Firms that sell out-of-home advertising 
set prices based on local market conditions and employ local sales 
forces.
    Similarly, many advertisers need to reach consumers in a particular 
city or metropolitan area. For those advertisers, advertising that 
targets consumers in a different area (or outside the city or 
metropolitan area) is not an adequate substitute. Such advertisers may 
have their businesses located in that city or metropolitan area and 
therefore need to reach that area's consumers. For many advertisers who 
target consumers in each of the Three Metropolitan Areas, there are no 
reasonable substitutes for out-of-home advertising located within each 
of the Three Metropolitan Areas. A small but significant increase in 
the price of out-of-home advertising in each of the Three Metropolitan 
Areas would not cause these advertisers to turn to out-of-home 
advertising located outside each area.
    The Complaint alleges that CBS's proposed acquisition of OSI would 
lessen competition substantially in the sale of out-of-home advertising 
in each of the Three Metropolitan Areas. The proposed transaction would 
create further market concentration in already highly concentrated 
markets, and CBS would control a substantial share of the out-of-home 
advertising revenues in these markets.
    In the New York City Area, CBS and OSI are the number one and 
number two providers of out-of-home advertising, respectively. After 
the merger, CBS's share of the out-of-home advertising market, based on 
advertising revenues, would exceed 60 percent. The approximate 
Herfindahl-Hirschman Index (``HHI''), explained in Exhibit A, attached 
hereto, post-merger would be 3960, representing an increase of 1850 
points.
    In the New Orleans Metropolitan Area, OSI and CBS are two of four 
major providers of out-of-home advertising. Post-merger, CBS's share of 
the out-of-home advertising market, based on advertising revenues, 
would increase to over 90 percent and the approximate post-merger HHI 
would be 3944, representing an increase of 672 points.
    In the Phoenix Metropolitan Area, OSI and CBS are two of four major 
providers of out-of-home advertising. Post-merger, CBS's share of the 
out-of-home advertising market, based on advertising revenues, would 
increase to over 75 percent. The approximate post-merger HHI would be 
5904, representing an increase of 568 points.

D. Harm to Competition as a Result of the Merger

    In each of the Three Metropolitan Areas, CBS and OSI compete head-
to-head, and, for many local and/or national advertisers buying certain 
types of out-of-home advertising, are each other's closest competitor. 
During individual price negotiations, these advertisers are currently 
able to ensure competitive prices by obtaining rates from both OSI and 
CBS and playing the rates of one off the rates of the other. CBS's 
acquisition of OSI will end this competition. After the acquisition, 
such advertisers will be unable to reach their desired audiences with 
equivalent efficiency without using CBS's out-of-home advertising 
displays. 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 CBS the ability to raise prices 
and reduce the quality of its service to advertisers in each of the 
Three Metropolitan Areas.
    New entry into the out-of-home 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 concluded that the proposed 
transaction would lessen competition substantially in the sale of out-
of-home advertising in the Three Metropolitan Areas, eliminate actual 
and potential competition between CBS and OSI, and result in increased 
prices and/or reduced quality of services for out-of-home advertisers 
in each of the Three Metropolitan Areas, 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 of out-of-home advertising in the Three Metropolitan Areas. In 
the Phoenix and New Orleans Metropolitan Areas, CBS is required to 
divest assets equivalent to all the out-of-home assets of one of the 
merging parties, thus completely restoring the pre-merger industry 
structure and resolving any competitive concerns. In the New York City 
Area, CBS is required to divest a package of out-of-home advertising 
displays generating approximately $25.3 million in revenue--the same 
amount of revenue OSI's out-of-home advertising assets generated last 
year, with the exception of the revenue earned by its bus shelter and 
subway advertising operations. With respect to bus shelters and 
subways, if CBS if offering both kinds of advertising for sale as of 
February 1, 2000, it is required to divest one of those lines of 
business. The objective of the divestiture is to ensure that the 
purchaser of the divested assets receives sufficient assets to compete 
effectively in the market and replaces the competitor lost as a result 
of the merger of CBS/OSI. Out-of-home advertising displays worth $25.3 
million, along with potentially either the bus shelter or subway 
advertising business, accomplishes this objective and thereby 
effectively restores the pre-merger competitive situation in the New 
York market.\1\
---------------------------------------------------------------------------

    \1\ As of February 1, 2000, CBS was engaged in the sale of 
advertising on bus shelters and subways in the New York City Area 
and therefore must divest one of these businesses.
---------------------------------------------------------------------------

    Unless plaintiff grants an extension of time, the divestitures must 
be completed within one hundred fifty (150) days after the filing of 
the Complaint in this matter or within five (5) business days after 
notice of entry of the proposed Final Judgment by the Court, whichever 
is later.
    Until the divestitures occur in all Three Metropolitan Areas, 
defendants must maintain and operate the advertising displays as active 
competitors; maintain the management and staffing, sales and marketing 
of the advertising assets; and maintain the assets to be divested in 
operable condition. This requirement ensures that the advertising 
assets remain viable and can be used effectively by the proposed 
purchasers.
    The divestitures must be made to a purchaser or purchasers 
acceptable to the plaintiff in its sole discretion. Unless plaintiff 
otherwise consents in writing, the divestitures shall include

[[Page 14624]]

all the assets of the out-of-home advertising display 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 out-of-home advertising businesses. 
In addition, the purchaser or purchasers must have the intent and 
capability of competing effectively in the sales of out-of-home 
advertising and there must be no conditions restricting competition in 
the terms of the sale. These provisions are intended to ensure that the 
purchasers chosen by the defendants (or the trustee) can effectively 
replace competition that may be lost due to the merger.
    If defendants fail to divest these out-of-home advertising displays 
within the time periods specified in the proposed 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. 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.
    Section VI of the proposed Final judgment requires CBS 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 out-of-home advertising display company in the 
Three Metropolitan Areas. Such acquisitions could raise competitive 
concerns, but might be too small to be reported otherwise under the 
Hart-Scott-Rodino premerger notification statute. Thus, this provision 
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 Three Metropolitan Areas.
    The relief in the proposed Final Judgment is intended to remedy the 
likely anticompetitive effects of CBS's proposed transaction with OSI 
in the Three Metropolitan Areas. Nothing in the proposed Final Judgment 
is intended to limit the plaintiff's ability to investigate or bring 
actions, where appropriate, challenging other past or future activities 
of the defendants in the Three Metropolitan Areas.

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 bring 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 plaintiff, 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: Willie L. Hudgins, 
Assistant Chief, Litigation II, Antitrust Division, United States 
Department of Justice, 1401 H Street, NW; Suite 3000, 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 compliant 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 out-of-home advertising display in 
the Three Metropolitan Areas and will effectively prevent the 
anticompetitive effects that would result from the proposed 
acquisition.

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 ad 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).
    The courts have recognized that the term ```public interest' 
take[s] meaning from the purposes of the regulatory legislation.'' 
NAACP v. Federal Power Comm'n, 425 U.S. 662,669 (1976). Since the 
purpose of the antitrust laws is to preserve ``free and unfettered 
competition as the rule of trade,''

[[Page 14625]]

Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4 (1958), 
the focus of the ``public interest'' inquiry under the APPA is whether 
the proposed Final Judgment would serve the public interest in free and 
unfettered competition. United States v. American Cyanamid Co., 719 
F.2d 558,565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984); United 
States v. Waste Management, Inc., 1985-2 Trade Cas. para. 66,651, at 
63,046 (D.D.C. 1985).
    In conducting this inquiry,'' [t]he Court is nowhere compelled to 
go to trail 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.'' \2\ Rather,

    \2\ 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-American 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 the 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. \3\
---------------------------------------------------------------------------

    \3\ 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).
---------------------------------------------------------------------------

    A proposed consent decree is an agreement between the parties 
which is reached after exhaustive negotiations and discussions. 
Parties do not hastily and thoughtlessly stipulate to a decree 
because, in doing so, they:

waive their right to litigate the issues involved in the case and 
thus save themselves the time, expense, and inevitable risk of 
litigation. Naturally, the agreement reached normally embodies a 
compromise; in exchange for the saving of cost and the elimination 
of risk, the parties each give up something they might have won had 
they proceeded with the litigation.

United States Armour & Co., 402 U.S. 673,681 (1971).
    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 
proposed final judgment requires a standard more flexible and less 
strict then 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''.\4\
---------------------------------------------------------------------------

    \4\ 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).
---------------------------------------------------------------------------

    Moreover, the court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its complaint, and does not authorize the court 
to ``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459. Since ``[t]he court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place,'' it follows that the court ``is only authorized to review the 
decree itself,'' and not to ``effectively redraft the complaint'' to 
inquire into other matters that the United States might have but did 
not pursue. Id. at 1459-60.
    The relief obtained in this case is strong and effective relief 
that should fully address the competitive harm posed by the proposed 
transaction.

VIII. Determination 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: February 10, 2000.

    Respectfully submitted,

Renee Eubanks,
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 Guideline Sec. 1.51.

Certificate of Service

    I, Renee Eubanks, hereby certify that, on February 10, 2000, I 
caused the foregoing document to be served on defendants CBS 
Corporation, Infinity Broadcasting Corporation and Outdoor Systems 
Inc., having a copy mailed, first-class, postage prepaid, to:

Helene Jaffe,
Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, 
Counsel for CBS Corporation and Infinity Broadcasting Corporation.
Mitchell Raup,
Mayer, Brown & Platt, 1909 K Street, N.W., Washington, D.C. 2006, 
Counsel for Outdoor Systems, Inc.
[FR Doc. 00-4593 Filed 3-16-00; 8:45 am]
BILLING CODE 4410-11-M