[Federal Register Volume 70, Number 40 (Wednesday, March 2, 2005)]
[Notices]
[Pages 10114-10151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3926]


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DEPARTMENT OF JUSTICE

Antitrust Division


Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comments 
received on the proposed Final Judgment in United States v. Cingular 
Wireless Corp. et al., Civil Action No. 1:04CV01850 (RBW), filed in the 
United States District Court for the District of Columbia, together 
with the United States' response to the comments on February 17, 2005.
    Copies of the comments and the response are available for 
inspection at Room 200 of the Department of Justice, Antitrust 
Division, 325 Seventh 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, E. Barrett Prettyman 
United States Courthouse, 333 Constitution Avenue, NW., Washington, DC 
20001. Copies of any of these materials may be obtained upon request 
and payment of a copying fee.

J. Robert Kramer II,
Director of Operations.

In the United States District Court for the District of Columbia

United States of America, State of Connecticut and State of Texas, 
Plaintiffs, v. Cingular Wireless Corporation, SBC Communications Inc., 
BellSouth Corporation and AT&T Wireless Services, Inc., Defendants; 
Plaintiff United States's Response to Public Comments

    Civil No. 1:04CV01850 (RBW)
    Filed: February 17, 2005
    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.SC. 16(b)-(h) (``APPA'' or ``Tunney Act''), the 
United States hereby responds to the public comments received regarding 
the proposal Final Judgment in this case. After careful consideration 
of the comments, the United States continues to believe that the 
proposed Final Judgment will provide an effective and appropriate 
remedy for the antitrust violation alleged in the Complaint. The United 
States will move the Court for entry of the proposed Final Judgment 
after the public comments and this Response has been published in the 
Federal Register, pursuant to 15 U.S.C. 16(d).
    On October 25, 2004, plaintiffs filed the Complaint in this matter 
alleging that the proposed acquisition of AT&T Wireless Services, Inc. 
(``AT&T Wireless'') by Cingular Wireless Corp. (``Cingular'') and its 
parents, SBC Communications Inc. (``SBC'') and BellSouth Corp. 
(``BellSouth''), would violate Section 7 of the Clayton Act, 15 U.S.C. 
18. Simultaneously with the filing of the Complaint, the plaintiffs 
filed a proposed Final Judgment \1\ and a Preservation of Assets 
Stipulation and Order signed by plaintiffs and defendants consenting to 
the entry of the proposed Final Judgment after compliance with the 
requirements of the Tunney Act. Pursuant to those requirements, the 
United States filed a Competitive Impact Statement (``CIS'') in this 
Court on October 29, 2004; published in the proposed Final Judgment and 
CIS in the Federal Register on November 15, 2004, see 69 FR 65633 
(2004); and published a summary of the terms of the proposed Final 
Judgment and CIS, together with directions for the submission of 
written comments relating to the proposed Final Judgment, in the 
Washington Post for seven days beginning on November 10, 2004 and 
ending on November 16, 2004. The 60-day period for public comments 
ended on January 15, 2005, and two comments were received as described 
below and attached hereto.
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    \1\ A corrected version of the proposed Final Judgment was filed 
on November 3, 2004. The only change was the addition of the 
underlined language to the last sentence of Section II.F: 
``Plaintiff United States in its sole discretion may approve this 
request if it is demonstrated that the retained minority interest 
will become irrevocably and entirely passive, so long as defendants 
own the minority interests, and will not significantly diminish 
competition.''
    The corrected version is what was published in the Federal 
Register. None of the public comments addressed this aspect of the 
proposed Final Judgment.
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I. Background

    As explained more fully in the Complaint and CIS, this transaction 
substantially lessened competition in mobile wireless 
telecommunications services and mobile wireless broadband services in 
13 geographic markets, located in 11 states. To restore competition in 
these markets, the proposed Final Judgment, if entered, would require 
Cingular to divest (1) AT&T Wireless's wireless business in 5 
geographic markets (Connecticut RSA-1 (CMA 357), Kentucky RSA-1 (CMA 
443), Oklahoma City (CMA 045), Oklahoma RSA-3 (CMA 598), and Texas RSA-
11 (CMA 662)); (2) minority interests in other wireless service 
providers in 5 geographic markets (Shreveport, LA (including CMAs 100, 
219, 454, 455, and 456), Pittsfield, MA (CMA 213), Athens, GA (CMA 
234), St. Joseph, MO (CMA 275), and Topeka, KS (CMA 179)); and (3) 10 
MHz of contiguous PCS spectrum in 3 geographic markets (Detroit, MI 
(BTA 112), Dallas, TX (CMA 009), and Knoxville, TN (BTA 232)). 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 punish violations 
thereof.

II. Legal Standard Governing the Court's Public Interest Determination

    Upon the publication of the public comments and this Response, the 
United States will have fully complied with the Tunney Act and will 
move the Court for entry of the proposed Final Judgment as being ``in 
the public interest.'' 15 U.S.C. 16(e). The Court, in making its public 
interest determination, shall consider:

    (A) 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, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including considerations of the public benefit, it 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1). As the U.S. Court of Appeals for the District of 
Columbia Circuit has held, the Tunney Act permits a court to consider, 
among other things, the relationship between the remedy secured and the 
specific allegations set forth in the government's compliant, whether 
the proposed Final Judgment is sufficiently clear, whether enforcement 
mechanisms are sufficient, and whether the proposed Final Judgment may 
positively harm third parties. See United States v. Microsoft

[[Page 10115]]

Corp., 56 F.3d 1448, 1458-62 (D.C. Cir. 1995).
    ``Nothing in this section shall be construed to require the court 
to conduct an evidentiary hearing or to require the court to permit 
anyone to intervene.''15 U.S.C. 16(e)(2). Thus, 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.'' 119 Cong. Rec. 24,598 (1973) (statement of Senator 
Tunney).\2\ Rather:

    \2\ See United States v. Gillette Co., 406 F. Supp. 713, 716 (D. 
Mass. 1975) (recognizing it was not the court's duty to settle; 
rather, the court must only answer ``whether the settlement achieved 
[was] within the reaches of the public interest''). A ``public 
interest'' determination can be made properly on the basis of the 
CIS and Response to Comments filed by the Department of Justice. 
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. No. 93-1463, 93d Cong., 2d 
Sess. 8-9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538-39.
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[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. (CCH) ] 
61,508, at ] 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the
proposed Final Judgment, 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. 1981)); see also Microsoft, 
56 F.3d at 1460-62. Courts have held that:

[t]he 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 pubic 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.

Bechtel. 648 F.2d at 666 (emphasis added) (citations omitted).\3\
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    \3\ Cf.BNS, 858 F.2d at 464 (holding that the court's ``ultimate 
authority under the [Tunney Act] is limited to approving or 
disapproving the consent decree''); Gillette, 406 F. Supp. at 716 
(noting that, in this way, the court is constrained to ``look at the 
overall picture not hypercritically, nor with a microscope, but with 
an artist's reducing glass''); see generally Microsoft 56 F.3d at 
1461 (discussing 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` ''.
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    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 of whether it mandates 
certainty of free competition in the future. Court approval of a 
consent 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 of is `within the reaches of public interest.' '' United 
States v. AT&T Corp., 552 F.Supp. 131, 151 (D.D.C. 1982) (citations 
omitted) (quoting Gillette, 406 F. Supp. at 716), aff'd sub nom. 
Maryland v. United States, 460 U.S. 1001 (1983); see also United States 
v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) 
(approving the consent judgment even though the court would have 
imposed a greater remedy).
    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. Because the ``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 did not pursue. Id. 
at 1459-60. The United States is entitled to ``due respect'' concerning 
its ``prediction as to the effect of proposed remedies, its perception 
of the market structure, and its view of the nature of the case.'' 
United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 
(citing Microsoft, 56 F.3d at 1461).

III. Summary of Public Comments and the United State's Response

    During the 60-day public comment period, the United States received 
two comments--one from the Oklahoma Corporation Commission (``OCC'') 
and the other from William Lovern, Sr.--which are attached hereto and 
summarized below. The United States appreciates the comments from the 
OCC and Mr. Lovern. As explained below, neither comment addresses 
whether the proposed Final Judgment is in the public interest or 
warrants any change to the proposed Final Judgment. Copies of this 
Response and its attachments have been mailed to the OCC and Mr. 
Lovern.

A. Oklahoma Corporation Commission

1. Summary of Comment
    The OCC is the state agency charged with regulatory oversight of 
the telecommunications industry in Oklahoma. In its comment of January 
6, 2005, the OCC expresses concern about the potential for the merger 
to harm Oklahoma consumers, specifically Oklahomans throughout the 
state who are current subscribers to AT&T Wireless's services and ``may 
not wish to do business with Cingular, or any other company acquiring 
the AT&T Wireless customer base, and that those customers may be 
assessed a fee to terminate their existing AT&T Wireless contracts.'' 
The OCC's comment also quotes a portion of the language from Section 
II.L of the proposed Final Judgment, which it believes may address this 
concern, at least for consumers in Oklahoma City and Oklahoma RSA-3: 
``[A]ny subscribers who obtain mobile wireless services through any 
contract retained by [Cingular] and who are located in [Oklahoma City, 
Oklahoma, Oklahoma RS-3 (CMA598), and some other areas outside 
Oklahoma], shall be given the option to terminate their relationship 
with [Cingular], without financial cost, within one year of closing of 
the Transaction.'' (Brackets in original.) The OCC asks that the 
language in the proposed Final Judgment be clarified or expanded to 
include all AT&T Wireless subscribers in Oklahoma and state that no 
``Oklahoma consumer with an existing contract for wireless service with 
AT&T Wireless will be charged a termination fee by AT&T Wireless, 
Cingular or any other company that acquires that customer contract, 
after the closing of the Cingular acquisition of AT&T Wireless.''
2. Response
    The OCC's primary concern appears to be that the merger could harm 
Oklahoma consumers. The Department also was concerned about the welfare 
of residents of Oklahoma. The Complaint

[[Page 10116]]

alleges competitive harm in Oklahoma City and Oklahoma RSA-3, and the 
proposed Final Judgment provides for the divestiture of AT&T Wireless's 
wireless businesses in those markets in order to preserve the existing 
competition for the benefit of Oklahoma's citizens. The OCC's concern 
that most AT&T Wireless customers would be forced to deal with Cingular 
after the merger is a consequence of the companies' decision to merge 
and not the proposed Final Judgment. Although consumers may not like to 
switch providers, switching caused by a merger that does not harm 
competition does not constitute a harm to competition that is 
recognized by the antitrust laws.
    It would also be inappropriate for plaintiffs or the Court to 
require as part of the settlement of this matter that all of AT&T 
Wireless's customers in the wireless business divestiture markets be 
allowed to cancel existing contracts when the divestiture assets are 
sold. To preserve competition, any divestiture package must include the 
necessary assets for the purchaser to be a viable, ongoing competitor 
to the merged firm in the affected markets. See U.S. Dept. of Justice, 
Antitrust Div., Policy Guide to Merger Remedies at 4, 9-12 (Oct. 2004) 
(``Restoring competition is the `key to the whole question of an 
antitrust remedy.' '' (quoting United States v. E.I. du Pont de Nemours 
& Co., 366 U.S. 316, 326 (1961))). A package without sufficient assets 
to allow a divestiture purchaser to quickly replace the competition 
lost as a result of the merger and give it the incentive to do so fails 
to protect competition. See Policy Guide to Merger Remedies at 9-11. To 
be a viable competitor, the divestiture purchaser needs access to the 
divested business's customers.\4\ Therefore, the proposed Final 
Judgment in Section II.L provides for customer contracts to be included 
in the Wireless Business Divestiture Assets in order to ensure that a 
suitable purchaser would be willing to acquire the assets make the 
effort necessary to maintain competition for the benefit of all 
consumers in these areas.
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    \4\ See Policy Guide to Merger Remedies at 10 (``In markets 
where an installed base of customers is required in order to operate 
at an effective scale, the divested assets should either convey an 
installed base of customers to the purchaser or quickly enable the 
purchaser to obtain an installed customer base.'').
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    The OCC's request for clarification of the language in Section II.L 
of the proposed Final Judgment is unnecessary. This Section relates 
solely to business customer contracts that cover subscribers both 
inside and outside the wireless business divestiture markets. In an 
effort to avoid forcing these customers who previously had a single 
contract to deal with both Cingular and the divestiture purchaser, the 
proposed Final Judgment assigns the contracts to Cingular or the 
divestiture purchaser based upon where the majority of the subscribers 
covered by the business customer contract are located. Section II.L of 
the proposed Final Judgment requires Cingular to divest business 
customer contracts where more than 50 percent of the subscribers are 
located in the wireless business divestiture markets.\5\ This will give 
the purchaser the necessary access to business customers to make it a 
viable competitor to preserve the existing competition.
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    \5\ The proposed Final Judgment reads in part: ``[P]rovided that 
defendants shall only be required to divest Multi-line Business 
Customer contracts, if 50 percent or more of the Multi-line Business 
Customer's subscribers reside or work within any of the five (5) 
license areas described herein [the wireless business divestiture 
areas which include Oklahoma City and Oklahoma RSA-3], and further, 
any subscribers who obtain mobile wireless services through any such 
contract retained by defendants and who are located within five (5) 
geographic areas identified above, shall be given the option to 
terminate their relationship with defendants, without financial 
cost, within one year of the closing of the transaction.''
    Proposed Final Judgment, section II.L (emphasis added). ``Multi-
line Business Customers'' are defined as AT&T Wireless business 
customers that have contracts for multiple wireless phones for their 
employees for which the business is liable. See id. section II.G
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    Under the terms of the proposed Final Judgment, any business 
subscriber located in the wireless business divestiture markets covered 
by a business customer contract retained by Cingular has the right to 
terminate their service without financial penalty within one year of 
the closing of the merger. See Proposed Final Judgment, section II.L. 
This last provision is what was quoted by the OCC, but by its very 
terms it applies only to subscribers covered by the business customer 
contracts retained by Cingular. The provision's purpose is to provide 
additional incentive to the divestiture purchaser by expanding the base 
of customers to which it could immediately market its services.
    After reviewing the concerns raised by the OCC, the United States 
continues to believe that the proposed Final Judgment is in the public 
interest and that it appropriately addresses the competitive harm 
alleged in the Complaint.

B. William Lovern, Sr.

1. Summary of Comment
    William Lovern Sr., President of Trial Management Associates (a 
self-described ``private company that litigates international public 
interest cases''), submitted a comment on November 11, 2004. First, Mr. 
Lovern is concerned that ``AT&T Wireless has been looted by its 
executives in conjunction with Cingular's takeover, even though the 
merger is not final.'' In conversations with the United States, he 
discussed this looting in relation to documents being taken from AT&T 
Wireless. Second, he asserts the Regional Bell Operating Companies 
(``RBOCs''), including SBC and BellSouth (the parents of Cingular), are 
``operating an anticompetitive Universal Billing & Collection System 
known as the InterCompany Settlement System (ICS)'' that allegedly 
controls the billing and collection for the RBOCs as well as their 
competitors. He claims that the new Cingular/AT&T Wireless and Verizon 
Wireless will have ``market share advantages'' that will force 
competitors out of business because they will be the only two entities 
that have 100%A on net Universal Billing & Collection.'' Finally, he 
states that ``SBC has violated Sarbanes-Oxley with their 2004, 1st, 2nd 
and 3rd Quarter Q filing with the [Securities and Exchange 
Commission],'' which he alleges is a result of its operating of the 
ICS. Along with his comment, Mr. Lovern submitted a copy of a letter he 
sent to James S. Turkey, Chairman and CEO of Ernest & Young, LLP, 
stating that SBC has ``committed flagrant securities fraud'' allegedly 
by ``operating a criminal enterprise'' (i.e., the ICS) that illegally 
overcharges consumers and put four of his telecommunications companies 
out of business.
    Mr. Lovern provided additional information on November 24, 2004 in 
the form of a November 22, 2004 letter to Warburg Pincus LLC and 
Providence Equity Partners Inc. detailing his long-running dispute with 
the RBOCs over the ICS, which he alleges is a ``criminal racketering 
enterprise,'' and Warburg Pincus's and Providence Equity Partners' 
alleged liability from purchasing Telecordia Technologies, which he 
claims was involved with the ICS. As described in this second 
submission, Mr. Lovern sued SBC in 1992, and the lawsuit was 
subsequently settled against his wishes. He now claims that the court 
lacked jurisdiction, making the settlement invalid. Mr. Lovern also 
alleges that the Missouri Public Service Commission covered up the 
fraud he alleges was committed by the RBOCs through ICS. Finally, he 
forwarded a series of demand letters via e-mail threatening lawsuits or 
regulatory complaints against SBC and its executives on December 9, and 
10, 2004.

[[Page 10117]]

2. Response
    Mr. Lovern's series of submissions has nothing to do with the issue 
before this Court--whether the proposed Final Judgment is in the public 
interest. Nothing in Mr. Lovern's comments relates to competition in 
the relevant product markets (i.e., mobile wireless telecommunications 
and mobile wireless broadband services) or to the assets that Cingular 
must dives under the proposed Final Judgment. Mr. Lovern's allegations 
about the ICS remain unchanged by the merger, and the alleged Sarbanes-
Oxley violations are, by their very nature, not addressable by the 
antitrust laws.

IV. Conclusion

    After careful consideration of these public comments, the United 
States still concludes that entry of the proposed Final Judgment will 
provide an effective and appropriate remedy for the antitrust violation 
alleged in the Complaint and is, therefore, in the public interest. 
Pursuant to Section 16(d) of the Tunney Act, the United States is 
submitting the public comments and its Response to the Federal Register 
for publication. After the comments and its Response are published in 
the Federal Register, the United States will move this Court to enter 
the proposed Final Judgment.

 Respectfully submitted

Hillary B. Burchuk (D.C. Bar  366755),
Matthew C. Hammond,
David T. Blonder,
Benjamin Brown,
Michael D. Chaaleff,
Benjamin Gilibnerti,
Jeremiah M. Luongo,
Lorenzo McRae (D.C. Bar  473660),

Attorneys, Telecommunications & Media, Enforcement Section, 
Antitrust Division.

U.S. Department, of Justice, City Center Building, 1401 H Street, 
NW., Suite 8000, Washington, DC 20530, (202) 514-5621, Facsimile: 
(202) 514-6381.

Certificate of Service

    I hereby certify that copies of the Plaintiff United States' 
Response to Public Comments have been mailed, by U.S. mail, postage 
prepaid, to the attorneys listed below, the 17th day of February 2005.
    Counsel for Defendants Cingular Wireless Corporation and SBC 
Communications, Inc.; Richard L. Rosen, Esq., Arnold & Porter LLP, 555 
Twelfth St., NW., Washington, DC 20004.
    Counsel for Defendants Cingular Wireless Corporation and BellSouth 
Corporation; Stephen M. Axinn, Esq., Axinn, Veltrop & Harkrider LLP, 
1801 K St., NW., Washington, DC 20006.
    Counsel for Defendant AT&T Wireless Services, Inc.; Ilene Knable 
Gotts, Esq., Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New 
York, NY 10019.
    Counsel for Plaintiff State of Texas; John T. Prud'homme, Jr., 
Esq., Assistant Attorney General, Antitrust and Civil Medicare Fraud 
Department, Office of the Attorney General, 300 West 15th Street, 9th 
Floor, Austin, Texas 78701.
    Counsel for Plaintiff State of Connecticut; Rachel O. Davis, Esq., 
Assistant Attorney General, Antitrust Department, 55 Elm Street, 
Hartford, Connecticut 06106.

Hillary B. Burchuk (D.C. Bar  366755),
Matthew C. Hammond,
Lorenzo McRae (D.C. Bar  473660),
Attorneys, Telecommunications & Media Enforcement Section, Antitrust 
Division, U.S. Department of Justice, City Center Building, 1401 H 
Street, NW., Suite 8000, Washington, DC 20530, (202) 514-5621.

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[FR Doc. 05-3926 Filed 3-1-05; 8:45 am]
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