[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Notices]
[Pages 44357-44376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15020]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. ALLTEL Corporation and Western Wireless 
Corporation; Competitive Impact Statement, Proposed Final Judgment, 
Complaint, Preservation of Assets Stipulation and Order

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a Complaint, proposed Final 
Judgment, Preservation of Assets Stipulation and Order, and Competitive 
Impact Statement have been filed with the U.S. District Court for the 
District of Columbia in United States v. ALLTEL Corporation and Western 
Wireless Corporation, Civil Case No. 1:05CV01345. On July 6, 2005, the 
United States filed a complaint alleging that the proposed acquisition 
of Western Wireless Corporation (``Western Wireless'') by ALLTEL 
Corporation (``ALLTEL''), would violate section 7 of the Clayton Act, 
15 U.S.C. 18, by substantially lessening competition in the provision 
of mobile wireless telecommunications services. The proposed Final 
Judgment, filed at the same time as the Complaint, Competitive Impact 
Statement, and Preservation of Assets Stipulation and Order, requires 
ALLTEL to divest assets in three states--Arkansas, Kansas, and 
Nebraska--in order to proceed with ALLTEL's $6 billion stock-and-cash 
acquisition of Western Wireless. The Competitive Impact Statement filed 
by the United States describes the Complaint, the proposed Final 
Judgment, the industry, and the remedies available to private litigants 
who may have been injured by the alleged violation.
    Copies of the Complaint, proposed Final Judgment, Preservation of 
Assets Stipulation and Order, the Competitive Impact Statement, and all 
further papers filed with the Court in connection with this Complaint 
will be available for inspection at the Antitrust Documents Group, 
Antitrust Division, Liberty Place Building, Room 215, 325 7th Street, 
NW., Washington, DC 20530 (202-514-2481), and the Office of the Clerk 
of the

[[Page 44358]]

U.S. District Court for the District of Columbia. Copies of these 
materials may be obtained from the Antitrust Division upon request and 
payment of the copying fee set by Department of Justice regulations.
    Interested persons may submit comments in writing regarding the 
proposed consent decree to the United States. Such comments must be 
received by the Antitrust Division within sixty (60) days and will be 
filed with the Court by the United States. Comments should be addressed 
to Nancy Goodman, Chief, Telecommunications & Media Enforcement 
Section, Antitrust Division, U.S. Department of Justice, 1401 H Street, 
NW., Suite 8000, Washington, DC 20530 (202-514-5621). At the conclusion 
of the sixty (60) day comment period, the U.S. District Court for the 
District of Columbia may enter the proposed consent decree upon finding 
that it serves the public interest.

J. Robert Kramer II,
Director of Operations.
United States of Amercia, Plaintiff, v. Alltel Corporation and 
Western Wireless Corporation, Defendants.

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    Defendants entered into an Agreement and Plan of Merger dated 
January 9, 2005, pursuant to which ALLTEL Corporation (``ALLTEL'') will 
acquire Western Wireless Corporation (``Western''). Plaintiff filed a 
civil antitrust Complaint on July 6, 2005 seeking to enjoin the 
proposed acquisition. The Complaint alleges that the likely effect of 
this acquisition would be to lessen competition substantially for 
mobile wireless telecommunications services in sixteen (16) geographic 
areas in the states of Arkansas, Kansas, and Nebraska in violation of 
Section 7 of the Clayton Act, 15 U.S.C. 18. This loss of competition 
would result in consumers facing higher prices and lower quality or 
quantity of mobile wireless telecommunications services.
    At the same time the Complaint was filed, plaintiff also filed a 
Preservation of Assets Stipulation and Order and proposed Final 
Judgment, which are designed to eliminate the anticompetitive effects 
of the acquisition. Under the proposed Final Judgement, which is 
explained more fully below, defendants are required to divest Western 
Wireless' mobile wireless telecommunications services businesses and 
related assets in sixteen (16) markets (``Wireless Business Divestiture 
Assets'') and Western Wireless' Cellular One Group Assets which 
includes the Cellular One service mark and related assets (``Cellular 
One Group Assets'') (collectively the ``Divestiture Assets''). Under 
the terms of the Preservation of Assets Stipulation and Order, 
defendants will take certain steps to ensure (a) that these assets are 
preserved and that the Divestiture Assets are operated as competitively 
independent, economically viable and ongoing businesses; (b) that they 
will remain independent and uninfluenced by defendants or the 
consummation of the transaction; and (c) that competition is maintained 
during the pendency of the ordered divestiture.
    Plaintiff and defendants have stipulated that the proposed Final 
Judgement 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. Defendants have also stipulated that they will comply with the 
terms of the preservation of Assets Stipulation and Order and the 
proposed Final Judgment from the date of signing of the Preservation of 
Assets Stipulation and Order, pending entry of the proposed Final 
Judgment by the Court and the required divestitures. Should the Court 
decline to enter the proposed Final Judgement, defendants have also 
committed to continue to abide by its requirements and those of the 
Preservation of Assets Stipulation and Order until the expiration of 
time for appeal.

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

A. The Defendants and the Proposed Transaction

    ALLTEL, with headquarters in Little Rock, Arkansas, is a 
corporation organized and existing under the laws of the state of 
Delaware. ALLTEL is the sixth-largest provider of mobile wireless voice 
and data services in the United States by number of subscribers; it 
serves approximately 8.8 million customers. It provides mobile wireless 
telecommunications services in one hundred fifty-one (151) rural 
service areas and in ninety-two (92) metropolitan statistical areas 
located within twenty-four (24) states and roaming services in these 
areas to other mobile wireless providers who use the CDMA platform. 
ALLTEL provides local wireline telephone service to 3 million customers 
primarily located in rural areas in fifteen (15) states. In 2004, 
ALLTEL earned revenues of approximately $8.2 billion.
    Western Wireless, with headquarters in Bellevue, Washington, is a 
corporation organized and existing under the laws of the state of 
Washington. Western is the ninth-largest provider of mobile wireless 
voice and data services in the United States by number of subscribers; 
it serves approximately 1.4 million customers. It operates in eighty-
eight (88) rural service areas and nineteen (19) metropolitan 
statistical areas located within nineteen (19) western states under the 
Cellular One service mark, except in one (1) license area in Texas 
where it operates as Western Wireless. Western Wireless also provides 
in its service areas roaming services to other providers who use CDMA, 
TDMA, and GSM technology. Through its subsidiary, Western Wireless 
International, it provides communications services in seven (7) 
countries outside of the United States. Western Wireless owns the 
Cellular One Group, a general partnership that owns the Cellular One 
service mark and licenses use of the mark to other mobile wireless 
providers. In 2004, Western Wireless earned approximately $1.9 billion 
in revenues.
    Pursuant to an Agreement and Plan of Merger dated January 9, 2005, 
ALLTEL will acquire Western Wireless in a stock-and-cash transaction 
valued at approximately $6 billion. If this transaction is consummated, 
ALLTEL and Western Wireless combined would have approximately 10 
million subscribers, with $10.1 billion in revenues and operations in 
thirty-three (33) states.
    The proposed transaction, as initially agreed to by defendants, 
would lessen competition substantially for mobile wireless 
telecommunications services in sixteen (16) markets. This acquisition 
is the subject of the Complaint and proposed Final Judgement filed by 
plaintiffs.

B. Mobile Wireless Telecommunications Services Industry

    Mobile wireless telecommunications services allow customers to make 
and receive telephone calls and use data services using radio 
transmissions without being confined to a small area

[[Page 44359]]

during the call or data session, and without the need for unobstructed 
line-of-sight to the radio tower. This mobility is highly prized by 
customers, as demonstrated by the more than 180 million people in the 
United States who own mobile wireless telephones. In 2004, revenues for 
the sale of mobile wireless telecommunications services in the United 
States were over $100 billion. To provide these services, mobile 
wireless telecommunications services providers must acquire adequate 
and appropriate spectrum, deploy an extensive network of switches, 
radio transmitters, and receivers, and interconnect this network with 
those of local and long-distance wireline telecommunications providers 
and other mobile wireless telecommunications services providers.
    The first wireless voice system were based on analog technology, 
now referred to as first-generation or ``IG'' technology. These analog 
systems were launched after the FCC issued the first licenses for 
mobile wireless telephone service: two cellular licenses (A-block and 
B-block) in each geographic area in the early to mid-1980s. The 
licenses are in the 800 MHz range of the radio spectrum, each license 
consists of 25 MHz of spectrum, and they are issued for each 
Metropolitan Statistical Area (``MSA''), and Rural Service Area 
(``RSA'') (collectively) ``Cellular Marketing Areas'' or ``CMAs''), 
with a total of 734 CMAs covering the entire United States. In 1982, 
one of the licenses was issued to the incumbent local exchange carrier 
in the market, and the other was issued by lottery to someone other 
than the incumbent. Cellular licenses must support analog service until 
February 2008.
    In 1995, the FCC allocated and subsequently issued licenses for 
additional spectrum for the provision of Personal Communications 
Services (``PCS''), a category of services that includes mobile 
wireless telecommunications services comparable to those offered by 
cellular licensees. These licenses are in the 1.8 GHz range of the 
radio spectrum and are divided into six blocks: A, B, and C, which 
consist of 30 MHz each; and D, E, and F, which consist of 10 MHz each. 
Geographically, the A and B-block 30 MHz licenses are issued by Major 
Trading Areas (``MTAs''), and C, D, E and F-block licenses are issued 
by Basic Trading Areas (``BTAs''), several of which comprise each MTA. 
MTAs and BTAs do not generally correspond to MSAs and RSAs. With the 
introduction of the PCS licenses, both cellular and PCS licensees began 
offering digital services, thereby increasing capacity, shrinking 
handsets, and extending battery life. In 1996, one provider, a 
specialized mobile radio (``SMR'' or ``dispatch'') spectrum licensee, 
began to use its SMR spectrum to offer mobile wireless 
telecommunications services comparable to those offered by other mobile 
wireless telecommunications services providers, in conjunction with its 
dispatch, or ``push-to-talk,'' service.
    Today, more than 90 percent of the all mobile wireless 
telecommunications services customers have digital service, and nearly 
all mobile wireless voice service has migrated to second-generation or 
``2G'' digital technologies: TDMA (time division multiple access), GSM 
(global standard for mobile, a type of TDMA standard used by all 
carriers in Europe), and CDMA (code division multiple access). Mobile 
wireless telecommunications services providers have chosen to build 
their networks on these incompatible technologies and most have chosen 
CDMA or GSM, with TDMA having been orphaned by equipment vendors. (The 
SMR providers use a fourth incompatible technological standard better 
suited to the spectrum they own, and, as SMR licensees, they have no 
obligation to support a specific technology standard.) Even more 
advanced technologies (``3G'') have begun to be deployed for voice and 
data. In all of the geographic areas alleged in the complaint, ALLTEL 
and Western Wireless own 25 MHz cellular licenses. Western also owns 
some additional PCS licenses. Cellular spectrum because of its 
propagation characteristics is more efficient to use in serving rural 
areas.

C. The Competitive Effects of the Transaction on Mobile Wireless 
Telecommunications Services

    ALLTEL's proposed acquisition of Western Wireless will 
substantially lessen competition in mobile wireless telecommunications 
services in the sixteen (16) relevant geographic areas. Mobile wireless 
telecommunications services include both voice and data services 
provided over a radio network and allow customers to maintain their 
telephone calls or data sessions without wires, such as when traveling. 
Fixed wireless services and other wireless services that have a limited 
range (e.g., Wi-Fi) do not offer a viable alternative to mobile 
wireless telecommunications services primarily because customers using 
these services cannot maintain a call or data session while moving from 
one location to another.
    Most customers use mobile wireless telecommunications services in 
close proximity to their workplaces and homes. Thus, customers 
purchasing mobile wireless telecommunications services choose among 
mobile wireless telecommunications services providers that offer 
services where they are located and travel on a regular basis: Home, 
work, other areas they commonly visit, and areas in between. The number 
and identity of mobile wireless telecommunications services providers 
varies from geographic area to geographic area, along with the quality 
of their services and the breadth of their geographic coverage, all of 
which are significant factors in customers' purchasing decisions. 
Mobile wireless telecommunications services providers can and do offer 
different promotions, discounts, calling plans, and equipment subsidies 
in different geographic areas, effectively varying the actual price for 
customers by geographic area.
    The relevant geographic markets for mobile wireless 
telecommunications services are, therefore, local in nature. The FCC 
has licensed a limited number of mobile wireless telecommunications 
services providers in these and other geographic areas based upon the 
availability of radio spectrum. These FCC spectrum licensing areas 
often represent the core of the business and social sphere where 
customers face the same competitive choices for mobile wireless 
telecommunications services. Although not all FCC spectrum licensing 
areas are relevant geographic areas for the purpose of analyzing the 
antitrust impact of this transaction, the FCC spectrum licensing areas 
that encompass the sixteen (16) geographic areas of concern in this 
transaction are where consumers in these communities principally use 
their mobile wireless telecommunications services. As described in the 
Complaint, the relevant geographic markets where the transaction will 
substantially lessen competition for mobile wireless telecommunications 
services are represented by the following FCC spectrum licensing areas 
which are all Rural Service Areas (``RSAs''): Arkansas RSA-11 (CMA 
334), Kansas RSA-3 (CMA 430), Kansas RSA-4 (CMA 431), Kansas RSA-8 (CMA 
435), Kansas RSA-9 (CMA 436), Kansas RSA-10 (CMA 437), Kansas RSA-14 
(CMA 441), Nebraska RSA-2 (CMA 534), Nebraska RSA-3 (CMA 535), Nebraska 
RSA-4 (CMA 536), Nebraska RSA-5 (CMA 537), Nebraska RSA-6 (CMA 538), 
Nebraska RSA-7 (CMA 539), Nebraska RSA-8 (CMA 540), Nebraska RSA-9 (CMA 
541), and Nebraska RSA-10 (CMA 542).
    The sixteen (16) geographic markets of concern for mobile wireless 
telecommunications services were identified by a fact-specific, market-
by-

[[Page 44360]]

market analysis that included consideration of, but was not limited to, 
the following factors: The number of mobile wireless telecommunications 
service providers and their competitive strength and weaknesses; 
ALLTEL's and Western Wireless' market shares along with those of the 
other providers; whether additional spectrum is or is likely to be 
available; whether any providers are limited by insufficient spectrum 
or other factors in their ability to add new customers; the 
concentration of the market, and the breadth and depth of coverage by 
different providers in each market; and the likelihood that any 
provider would expand its existing coverage.
    ALLTEL and Western Wireless both own businesses that offer mobile 
wireless telecommunications services in the sixteen (16) relevant 
geographic areas. The companies' combined market shares for mobile 
wireless telecommunications services in the relevant markets as 
measured in terms of subscribers range from over 50 to nearly 100 
percent. In each relevant geographic market, ALLTEL has the largest 
market share, and, in all but four RSAs, Western Wireless is the 
second-largest mobile wireless telecommunications services provider. In 
all of the relevant geographic markets, ALLTEL and Western Wireless own 
the only 800 MHz band cellular spectrum licenses which are more 
efficient in serving rural areas than 1900 MHz band PCS spectrum. As a 
result of holding the cellular spectrum licenses and being early 
entrants into these markets, ALLTEL's and Western Wireless' networks 
provide greater depth and breadth of coverage than their competitors, 
which are operating on PCS spectrum in the relevant geographic markets, 
and thus are more attractive to consumers.
    In addition, mobile wireless telecommunications services providers 
with partial coverage in a geographic area do not aggressively market 
their services in this location because potential customers would use 
their wireless telephones primarily in places where these providers 
have no network. In theory, these less built-out providers could 
service residents of these rural areas through roaming agreements, but 
as a practical matter when service is provided on another carrier's 
network, the providers would have to pay roaming charges to, and rely 
on, that carrier to maintain the quality of the network. Because of 
these constraints, the other providers who own partially built-out 
networks in the sixteen (16) geographic areas are reluctant to market 
their services to rural residents of these areas. Therefore, ALLTEL and 
Western Wireless are likely closer substitutes for each other than the 
other mobile wireless telecommunications services providers in the 
relevant geographic markets. Additionally, post-merger in these 
markets, there will be insufficient remaining competitors, with the 
type of coverage desired by customers, and the ability to compete 
effectively to defeat a small, but significant price increase by the 
merged firm.
    The relevant geographic markets for mobile wireless 
telecommunications services are highly concentrated. As measured by the 
Herfindahl-Hirschman Index (``HHI''), which is commonly employed in 
merger analysis and is defined and explained in Appendix A to the 
Complaint, concentration in these markets ranges from over 2100 to more 
than 8500, which is well above the 1800 threshold at which the 
Department considers a market to be highly concentrated. After ALLTEL's 
proposed acquisition of Western Wireless is consummated, the HHIs in 
the relevant geographic markets will range from over 3400 to almost 
9700, with increases in the HHI as a result of the merger ranging from 
over 1100 to over 4600.
    Competition between ALLTEL and Western Wireless in the relevant 
geographic markets has resulted in lower prices and higher quality in 
mobile wireless telecommunications services than would otherwise have 
existed in these geographic markets. If ALLTEL's proposed acquisition 
of Western Wireless is consummated, the competition between ALLTEL and 
Western Wireless in mobile wireless telecommunications service will be 
eliminated in these markets and the relevant geographic markets for 
mobile wireless telecommunications services will become substantially 
more concentrated. As a result, the loss of competition between ALLTEL 
and Western Wireless increases the likelihood of unilateral actions by 
the merged firm in the relevant geographic markets to increase prices, 
diminish the quality or quantity of services provided, and refrain from 
or delay making investments in network improvements.
    Entry by a new mobile wireless telecommunications services provider 
in the relevant geographic markets would be difficult, time-consuming, 
and expensive, requiring the acquisition of spectrum licenses and the 
build-out of a network. Expansion by providers who hold spectrum in 
these areas and are only partially built-out is also unlikely as the 
relevant geographic markets are rural service areas where the combined 
firm would own all of the available 800 MHz spectrum. Due to 
propagation characteristics of 800 MHz cellular spectrum and 1900 MHz 
PCS spectrum, the 800 MHz signals can cover a substantially broader 
area than the 1900 MHz signals. The estimated coverage advantage of the 
800 MHz spectrum in rural areas ranges from two to as much as five 
times greater than PCS. In rural markets, this difference results in 
higher build-out costs for PCs networks than for cellular networks. The 
high costs of constructing PCS networks in rural markets combined with 
the relatively low population density makes it less likely that 
carriers that own PCS spectrum would build out in the relevant 
geographic markets. Therefore, new entry in response to a small but 
significant price increase for mobile wireless telecommunications 
services by the merged firm in the relevant geographic markets would 
not be timely, likely, or sufficient to thwart the competitive harm 
that would result from ALLTEL's proposed acquisition of Western 
Wireless.
    For these reasons, plaintiff concluded that ALLTEL's proposed 
acquisition of Western Wireless will likely substantially lessen 
competition, in violation of Section 7 of the Clayton Act, in the 
provision of mobile wireless telecommunications services in the 
relevant geographic markets.

III. Explanation of the Proposed Final Judgment

    The divestiture requirements of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition of mobile 
wireless telecommunications services in the sixteen (16) geographic 
markets of concern. The proposed Final Judgment requires defendants, 
within one hundred twenty (120) days after the filing of the Complaint, 
or five (5) days after notice of the entry of the Final Judgment by the 
Court, whichever is later, to divest the Wireless Business Divestiture 
Assets and the Cellular One Group Assets. The Wireless Business 
Divestiture Assets are essentially Western's entire mobile wireless 
telecommunications services business in the sixteen (16) markets where 
ALLTEL and Western Wireless are each other's closest competitors for 
mobile wireless telecommunications services. These assets must be 
divested in such a way as to satisfy plaintiff in its sole discretion 
that they will be operated by the purchaser as a viable, ongoing, 
business that can compete effectively in the relevant market. 
Defendants must take all reasonable steps necessary to accomplish the 
divestitures quickly and shall cooperate with prospective purchasers.

[[Page 44361]]

    With respect to the Wireless Business Divestiture Assets, in some 
markets the merged firm may retain Western's PCS wireless spectrum. 
Western's PCS spectrum is used primarily to provide roaming services to 
other providers who use GSM technology. ALLTEL does not currently 
provide GSM roaming and therefore the proposed acquisition will not 
lessen competition in providing these services. In requiring 
divestitures, plaintiff seeks to make certain that the potential buyer 
acquires all the assets it may need to be a viable competitor and 
replace the competition lost by the merger. The 25 MHz of cellular 
spectrum that must be divested will support the operation and expansion 
of the mobile wireless telecommunications services businesses being 
divested, allowing the buyer to be a viable competitor to the merged 
entity.
    The Final Judgment requires that the Wireless Business Divestiture 
Assets in the Nebraska RSAs be divested to a single acquirer who, as a 
result, will be able to supply service to customers that require 
wireless telecommunications service throughout eastern and central 
rural Nebraska in the same way that Western Wireless is currently able 
to provide that service. This provision resolves concerns about the 
loss of competition for customers that demand coverage over a 
combination of Nebraska FCC licensing areas, in addition to the 
concerns due to eliminating competition within each licensing area.
    The Cellular One Group Assets consist of all right, title and 
interest in trademarks, trade names, service marks, service names, and 
designs for the Cellular One mark. Western Wireless owns the Cellular 
One Group Assets and under the terms of the Cellular One licensing 
agreements it has entered with other mobile wireless telecommunications 
services providers, it is required to promote and maintain the value of 
the mark. Western Wireless markets its mobile wireless 
telecommunications services under the Cellular One mark in the sixteen 
(16) geographic markets of concern in the Complaint. As a result of the 
proposed transaction, ALLTEL would have acquired the Cellular One Group 
Assets. ALLTEL has no need to use the Cellular One mark in the United 
States as it has its own established name. The buyer of the Wireless 
Business Divestiture Assets, on the other hand, may need to use the 
Cellular One Group name, short term or long term, in order to provide 
continuity for existing customers or attract new business.
    When agreeing to divestitures to remedy the loss of competition as 
a result of a merger, the plaintiff seeks to make certain that the 
potential buyer acquires or has accesses to all assets that it may need 
to be a viable and substantial competitor. Having an established name 
is an important asset that can impact the ability of the buyer to 
quickly come into a market and attract customers. In order to ensure 
that the buyer has unimpaired access to the Cellular One mark and that 
the mark is in the hands of an owner who will aggressively act to 
promote and preserve it, the proposed Final Judgment requires ALLTEL to 
divest the Cellular One Group Assets. Under the terms of the proposed 
Final Judgment, defendants will sell these assets to an appropriate 
purchaser who has the intent and capability to maintain the value of 
the Cellular One service mark.

A. Timing of Divestitures

    In antitrust cases involving mergers or joint ventures in which 
plaintiff seeks a divestiture remedy, it requires completion of the 
divestitures within the shortest time period reasonable under the 
circumstances. The proposed Final Judgment in this case requires, in 
Section IV.A, divestiture of the Divestiture Assets, within one hundred 
twenty (120) days after the filing of the Complaint, or five (5) days 
after notice of the entry of the Final Judgment by the Court, whichever 
is later. Plaintiff in its sole discretion may extend the date for 
divestiture of the Divestiture Assets by up to sixty (60) days. Because 
the FCC's approval is required for the transfer of the wireless 
licenses to a purchaser, Section IV.A provides that if applications for 
transfer of a wireless license have been filed with the FCC, but the 
FCC has not acted dispostively before the end of the required 
divestiture period, the period for divestiture of those assets shall be 
extended until five (5) days after the FCC has acted. This extension is 
to be applied only to the individual Divestitures Assets affected by 
the delay in approval of the license transfer and does not entitle 
defendants to delay the divestiture of any other Divestiture Assets for 
which license transfer approval has been granted.
    The divestiture timing provisions of the proposed Final Judgment 
will ensure that the divestitures are carried out in a timely manner, 
and at the same time will permit defendants an adequate opportunity to 
accomplish the divestitures through a fair and orderly process. Even if 
all Divestiture Assets have not been divested upon consummation of the 
transaction, there should be no adverse impact on competition given the 
limited duration of the period of common ownership and the detailed 
requirements of the Preservation of Assets Stipulation and Order.

B. Use of a Management Trustee

    The Preservation of Assets Stipulation and Order, filed 
simultaneously with this Competitive Impact Statement, ensures that, 
prior to divestiture, the Divestiture Assets are maintained, the 
Wireless Business Divestiture Assets remain an ongoing business 
concern, and the Cellular One Group Divestiture Assets remain 
economically viable. The Divestiture Assets will remain preserved, 
indepdent and uninfluenced by defendants, so that competition is 
maintained during the pendency of the ordered divestiture.
    The Preservation Assets Stipulation and Order appoints a management 
trustee selected by plaintiff to oversee the Divestiture Assets in the 
relevant geographic markets. The appointment of a management trustee in 
this unique situation is required because the Wireless Business 
Divestiture Assets are not independent facilities that can be held 
separate and operated as standalone units by the merged firm. Rather, 
the Wireless Business Divestiture Assets are an integral part of a 
larger network, and to maintain their competitive viability and 
economic value, they should remain part of that network during the 
divestiture period. To insure that these assets are preserved and 
supported by defendants during this period, yet run independently, a 
management trustee is necessary to oversee the continuing relationship 
between defendants and these assets. The management trustee will also 
preserve and ensure the viability of the Cellular One Group Assets. The 
management trustee will have the power to operate the Divestiture 
Assets in the ordinary course of business, so that they will remain 
preserved, independent, and uninfluenced by defendants, and so that the 
Wireless Business Divestiture Assets remain an ongoing and economically 
viable competitor to defendants and to other mobile wireless 
telecommunications services providers. The management trustee will 
preserve the confidentiality of competitively sensitive marketing, 
pricing, and sales information; insure defendants' compliance with the 
Preservation of Assets Stipulation and Order and the proposed Final 
Judgment; and maximize the value of the Divestiture Assets so as to 
permit expeditious divestiture in a manner consistent with the proposed 
Final Judgment.
    The Preservation of Assets Stipulation and Order provides that 
defendants will

[[Page 44362]]

pay all costs and expenses of the management trustee, including the 
cost of consultants, accountants, attorneys, and other representatives 
and assistants hired by the management trustee as are reasonably 
necessary to carry out his or her duties and responsibilities. After 
his or her appointment becomes effective, the management trustee will 
file monthly reports with plaintiffs setting forth the efforts to 
accomplish the goals of the Preservation of Assets Stipulation and 
Order and the proposed Final Judgment and the extent to which 
defendants are fulfilling their responsibilities. Finally, the 
management trustee may become the divestiture trustee, pursuant to the 
provisions of Section V of the proposal Final Judgment.

C. Use of a Divestiture Trustee

    In the event that defendants do not accomplish the divestiture 
within the periods prescribed in the proposed Final Judgment, the Final 
Judgment provides that the Court will appoint a trustee selected by 
plaintiff to effect the divestitures. As part of this divestiture, 
defendants must relinquish any direct or indirect financial ownership 
interests and any direct or indirect role in management or 
participation in control. Pursuant to Section V of the proposed Final 
Judgment, the divestiture trustee will own and control of Divestiture 
Assets until they are sold a final purchaser, subject to safeguards to 
prevent defendants from influencing their operation.
    Section V details the requirements for the establishment of the 
divestiture trust, the selection and compensation of the divestiture 
trustee, the responsibilities of the divestiture trustee in connection 
with the divestiture and operation of the Divestiture Assets, and the 
termination of the divestiture trust. The divestiture trustee will have 
the obligation and the sole responsibility, under Section V.D, for the 
divestiture of any transferred Divestiture Assets. The divestiture 
trustee has the authority to accomplished divestitures at the earliest 
possible time and ``at such price and on such terms as are then 
obtainable upon reasonable effort by the Divestiture Trustee.'' In 
addition, to insure that the divestiture trustee can promptly locate 
and divest to an acceptable purchaser, plaintiff, in its sole 
discretion, may require defendants to include additional assets, or 
allow defendants to substitute substantially similar assets, which 
substantially relate to the Divestiture Assets to be divested by the 
divestiture trustee.
    The divestiture trustee will not only have responsibility for sale 
of the Divestiture Assets, but will also be the authorized holder of 
the wireless licenses, with full responsibility for the operations, 
marketing, and sales of the wireless businesses to be divested, and 
will not be subject to any control or direction by defendants. 
Defendants will no longer have any role in the ownership, operation, or 
management of the Divestiture Assets following consummation of the 
transaction, as provided by Section V, other than the right to receive 
the proceeds of the sale, and certain obligations to provide support to 
the Divestiture Assets, and cooperate with the divestiture trustee in 
order to complete the divestiture, as indicated in Section V.L and in 
the Preservation of Assets Stipulation and Order.
    The proposed Final Judgment provides that defendants will pay all 
costs and expenses of the divestiture trustee. The divestiture 
trustee's commission will be structured, under Section V.G of the 
proposed Final Judgment, so as to provide an incentive for the 
divestiture trustee based on the price obtained and the speed with 
which the divestitures are accomplished. After his or her appointment 
becomes effective, the divestiture trustee will file monthly reports 
with the Court and plaintiff setting forth his or her efforts to 
accomplish the divestitures. Section V.J requires the divestiture 
trustee to divest the Divestiture Assets to an acceptable purchaser or 
purchasers no later than six (6) months after the assets are 
transferred to the divestiture trustee. At the end of six (6) months, 
if all divestitures have not been accomplished, the trustee and 
plaintiff will make recommendations to the Court, which shall enter 
such orders as appropriate in order to carry out the purpose of the 
trust, including extending the trust or term of the trustee's 
appointment.
    The divestiture provisions of the proposed Final Judgment will 
eliminate the anticompetitive effects of the transaction in the 
provision of mobile wireless telecommunications services. The 
divestitures of the Divestiture Assets will preserve competition in 
mobile wireless telecommunications services by maintaining an 
independent and economically viable competitor in the relevant 
geographic markets.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

    Plaintiff and defendants have stipulated that the proposed Final 
Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that 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 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. All comments received during this 
period will be considered by the Department of Justice, which remains 
free to withdraw its consent to the proposed Final Judgment at any time 
prior to the Court's entry of judgment. The comments and the response 
of plaintiff will be filed with the Court and published in the Federal 
Register.
    Written comments should be submitted to: Nancy M. Goodman, Chief, 
Telecommunications and Media Enforcement Section, Antitrust Division, 
U.S. Department of Justice, 1401 H Street, NW., Suite 8000, Washington, 
DC 20530.

The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    Plaintiff considered, as an alternative to the proposed Final 
Judgment, a full trial on the merits against defendants. Plaintiff 
could have continued the litigation and sought preliminary and 
permanent injunctions against ALLTEL's acquisition of Western Wireless. 
Plaintiff is satisfied, however,

[[Page 44363]]

that the divestiture of assets and other relief described in the 
proposed Final Judgment will preserve competition for the provision of 
mobile wireless telecommunications services in the relevant markets 
identified in the Complaint.

VII. Standard of Review Under the APPA for the 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.'' 15 U.S.C. 
16(e)(1). In making that determination, the Court 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 consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16 (e)(1)(A) & (B). As the United States Court of Appeals for 
the District of Columbia Circuit has held, the APPA 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 consent judgment is sufficiently clear, whether 
enforcement mechanisms are sufficient, and whether the consent judgment 
may positively harm third parties. See United States v. Microsoft 
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).\1\ Rather:

    \1\ See United States v. Gillette Co., 204 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 
Competitive Impact Statement and Response to Comments filed by the 
Department of Justice 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. No. 93-1463, 93d Cong., 2d Sess. 8-9 (1974), 
reprinted in 1974 U.S.C.C.A.N. 6535, 6538-39.

[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 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.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\2\

    \2\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] 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' '').
---------------------------------------------------------------------------

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

VIII. Determinative Documents

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

    Dated: July 6, 2005.

     Respectfully submitted,

Deborah A. Roy (D.C. Bar 452573),
Laura R. Starling,
Hillary B. Burchuk (D.C. Bar 366755),
Matthew C. Hammond,

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.

United States of America, Plaintiff, v. ALLTEL Corporation and 
Western Wireless Corporation, Defendants.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on July 6, 2005, plaintiff and defendants, ALLTEL Corporation 
(``ALLTEL'') and Western Wireless Corporation (``Western Wireless''), 
by their respective attorneys, have consented to the entry of this 
Final

[[Page 44364]]

Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    And whereas, defendants agree 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 the prompt and 
certain divestiture of certain rights or assets by defendants to assure 
that competition is not substantially lessened;
    And whereas, plaintiff requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendants have represented to plaintiff that the 
divestitures required below 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 
below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is Ordered, adjudged and decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against defendants under Section 7 of the Clayton 
Act, 15 U.S.C. 18.

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest the Divestiture Assets.
    B. ``ALLTEL'' means defendant ALLTEL Corporation, a Delaware 
corporation with headquarters in Little Rock, Arkansas, its successors 
and assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``Cellular One Group'' means the Delaware general partnership, 
with headquarters in Bellevue, Washington, engaged in the business of 
licensing and promoting the Cellular One service mark and certain 
related trademarks, service marks, and designs.
    D. ``Cellular One Group Assets'' means all legal and economic 
interests Western Wireless holds in the Cellular One Group. Cellular 
One Group Assets shall include all right, title and interest in 
trademarks, trade names, service marks, service names, designs, and 
intellectual property, all license agreements for use of the Cellular 
One mark, technical information, computer software and related 
documentation, and all records relating to the divestiture assets. If 
the acquirer of the Cellular One Group Assets is not the acquirer of 
the Wireless Business Divestiture Assets, defendants will grant the 
acquirer of the wireless business assets a license to use the Cellular 
One service marks on terms generally available at the time the merger 
agreement was entered and make the transfer of the Cellular One Group 
Assets subject to continuation of these licenses.
    E. ``CMA'' means cellular market area which is used by the Federal 
Communications Commission (``FCC'') to define cellular license areas 
and which consists of Metropolitan Statistical Areas (``MSAs'') and 
Rural Service Areas (``RSAs'').
    F. ``Divestiture Assets'' means the Wireless Business Divestiture 
Assets and the Cellular One Group Assets.
    G. ``GSM'' means global system for mobile communications which is 
one of the standards used for the infrastructure of digital cellular 
service.
    H. ``Multi-line Business Customer'' means a corporate or business 
customer that contracts with Western Wireless for mobile wireless 
services to provide multiple telephones to its employees or members 
whose services are provided pursuant to a contract with the corporate 
or business customer.
    I. ``Transaction'' means the Agreement and Plan of Merger between 
ALLTEL and Western Wireless, dated January 9, 2005.
    J. ``Western Wireless'' means defendant Western Wireless 
Corporation, incorporated in the state of Washington with headquarters 
in Bellevue, Washington, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    K. ``Wireless Business Divestiture Assets'' means, for each mobile 
wireless telecommunications services business to be divested under this 
Final Judgment, all types of assets, tangible and intangible, used by 
defendants in the operation of the mobile wireless telecommunications 
services businesses to be divested. ``Wireless Business Divestiture 
Assets'' shall be construed broadly to accomplish the complete 
divestitures of the entire business of Western Wireless in each of the 
following RSA license areas as required by the Final Judgment and to 
ensure that the divested mobile wireless telecommunications services 
businesses remain viable, ongoing businesses:

(a) Arkansas RSA-11 (CMA 334);
(b) Kansas RSA-3 (CMA 430);
(c) Kansas RSA-4 (CMA 431);
(d) Kansas RSA-8 (CMA 435);
(e) Kansas RSA-9 (CMA 436);
(f) Kansas RSA-10 (CMA 437);
(g) Kansas RSA-14 (CMA 441);
(h) Nebraska RSA-2 (CMA 534);
(i) Nebraska RSA-3 (CMA 535);
(j) Nebraska RSA-4 (CMA 536);
(k) Nebraska RSA-5 (CMA 537);
(l) Nebraska RSA-6 (CMA 538);
(m) Nebraska RSA-7 (CMA 539);
(n) Nebraska RSA-8 (CMA 540);
(o) Nebraska RSA-9 (CMA 541); and
(p) Nebraska RSA-10 (CMA 542);

provided that ALLTEL may retain all of the PCS spectrum currently held 
by Western Wireless in each of these RSAs and provided that ALLTEL need 
not divest the assets used solely to operate Western Wireless' GSM 
roaming business, including GSM roaming contracts and equipment.

    Wireless Business Divestiture Assets shall include, without 
limitation, all types of real and personal property, monies and 
financial instruments, equipment, inventory, office furniture, fixed 
assets and furnishings, supplies and materials, contracts, agreements, 
leases, commitments, spectrum licenses issued by the FCC and all other 
licenses, permits and authorizations, operational support systems, cell 
sites, network infrastructure, switches, customer support and billing 
systems, interfaces with other service providers, business and customer 
records and information, customer contracts, customer lists, credit 
records, accounts, and historic and current business plans which relate 
primarily to the wireless business being divested, as well as any 
patents, licenses, sub-licenses, trade secrets, know-how, drawings, 
blueprints, designs, technical and quality specifications and 
protocols, quality assurance and control procedures, manuals and other 
technical information defendants supply to their own employees, 
customers, suppliers, agents, or licensees, and trademarks, trade names 
and service marks or other intellectual property, including all 
intellectual property rights under third-party licenses that are 
capable of being transferred to an Acquirer either in their entirety, 
for assets described in (1) below, or through a license obtained 
through or from Western Wireless, for assets described in (2) below; 
provided that defendants shall only be required to divert Multi-line 
Business Customer contracts, if the primary business address for that 
customer is located within any of the sixteen (16) license areas 
described herein, and further, any

[[Page 44365]]

subscribers who obtain mobile wireless telecommunications services 
through any such contract retained by defendants and who are located 
within the sixteen (16) 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. Defendants shall provide written notice to these 
subscribers within forty-five (45) days after the closing of the 
Transaction of the option to terminate.
    These divestitures of the Wireless Business Divestiture Assets 
shall be accomplished by:
    (1) Transferring to the Acquirers the complete ownership and/or 
other rights to the assets (other than those assets used substantially 
in the operations of Western Wireless' overall wireless 
telecommunications services business which must be retained to continue 
the existing operations of the wireless properties that defendants are 
not required to divest, and that either are not capable of being 
divided between the divested wireless telecommunications services 
businesses and those not divested, or are assets that the defendants 
and the Acquirer(s) agree, subject to approval of plaintiff, shall not 
be divided); and
    (2) Granting to the Acquirer(s) an option to obtain a non-
exclusive, transferable license from defendants for a reasonable 
period, subject to approval of plaintiff, at the election of an 
Acquirer to use any of Western Wireless's retained assets under 
paragraph (1) above, used in the operation of the wireless 
telecommunications services business being divested, so as to enable 
the Acquirer to continue to operate the divested wireless 
telecommunications services business without impairment. Defendants 
shall identify in a schedule submitted to plaintiff and filed with the 
Court, as expeditiously as possible following the filing of the 
Complaint and in any event prior to any divestitures and before the 
approval by the Court of this Final Judgment, any intellectual property 
rights under third-party licenses that are used by the wireless 
telecommunications services businesses being divested but that 
defendants could not transfer to an Acquirer entirely or by license 
without third-party consent, and the specific reasons why such consent 
is necessary and how such consent would be contained for each asset.

III. Applicability

    A. This Final Judgment applies to defendants ALLTEL and Western 
Wireless, as defined above, and all other persons in active concert or 
participation with any of them who receive actual notice of this Final 
Judgment by personal service or otherwise.
    B. Defendants shall require, as a condition of the sale or other 
disposition of all or substantially all of their assets or of lesser 
business units that include the Divestiture Assets, that the purchaser 
agrees to be bound by the provisions of this Final Judgment, provided 
that defendants need not obtain such an agreement from the Acquirer(s).

IV. Divestitures

    A. Defendants are ordered and directed, within one hundred twenty 
(120) days after consummation of the Transaction, or five (5) days 
after notice of entry of this Final Judgment, whichever is later, to 
divest the Divestiture Assets to an acquirer or Acquirers acceptable to 
plaintiff in its sole discretion, and, if applicable, to a Divestiture 
Trustee designated pursuant to Section V of this Final Judgment. 
Plaintiff, in its sole discretion, may agree to one or more extensions 
of this time period not to exceed sixty (60) days in total, and shall 
notify the court in such circumstances. With respect to divestiture of 
the Wireless Business Divestiture Assets by defendants or the 
Divestiture Trustee, if applications have been filed with the FCC 
within the period permitted for divestiture seeking approval to assign 
or transfer licenses to the Acquirer(s) of the Wireless Business 
Divestiture Assets, but an order or other dispositive action by the FCC 
on such applications has not been issued before the end of the period 
permitted for divestiture, the period shall be extended with respect to 
divestiture of those Divestiture Assets for which FCC approval has not 
been issued until five (5) days after such approval is received. 
Defendants agree to use their best efforts to accomplish the 
divestitures set forth in this Final Judgment and to seek all necessary 
regulatory approvals as expeditiously as possible. This Final Judgment 
does not limit the FCC;s exercise of its regulatory powers and process 
with respect to the Divestiture Assets. Authorization by the FCC to 
conduct the divestiture of a Divestiture Asset in a particular manner 
will not modify any of the requirements of this decree.
    B. In accomplishing the divestitures ordered by this Final 
Judgment, defendants shall promptly make known, if they have not 
already done so, by usual and customary means, the availability of the 
Divestiture Assets. Defendants shall inform any person making inquiry 
regarding a possible purchase of the Divestiture Assets that they are 
being divested pursuant to this Final Judgment and provide that person 
with a copy of this Final Judgment. Defendants shall offer to furnish 
to all prospective Acquireres, subject to customary confidentiality 
assurances, all information and documents relating to the Divestiture 
Assets customarily provided in a due diligence process except such 
information or documents subject to the attorney-client or work product 
privileges. Defendants shall make available such information to 
plaintiff at the same time that such information is made available to 
any other person.
    C. Defendants shall provide to the Acquirer(s) and plaintiff 
information relating to the personnel involved in the operation, 
development, and sale or license of the Divestiture Assets to enable 
the Acquirer(s) to make offers of employment. Defendants will not 
interfere with any negotiations by the Acquirer(s) to employ any 
defendant employee whose primary responsibility is the operation, 
development, or sale or license of the Divestiture Assets.
    D. Defendants shall permit prospective Acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
of the Divestiture Assets; access to any and all environmental, zoning, 
and other permit documents and information; and access to any and all 
financial, operational, and other documents and information customarily 
provided as part of a due diligence process.
    E. Defendants shall warrant to all Acquirer(s) that (1) the 
Wireless Business Divestiture Assets will be operational on the date of 
sale; (2) every wireless spectrum license is in full force and effect 
on the date of sale; and (3) the Cellular One Group Assets will be 
unencumbered and not judged invalid or unenforceable by any court or 
similar authority on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, licensing, operation, or divestiture of the Divestiture 
Assets.
    G. Defendants shall warrant to the Acquirer(s) of the Divestiture 
Assets that there are no defects in the environmental, zoning, 
licensing or other permits pertaining to the operation of each asset 
that will have a material adverse effect on the operator of the mobile 
wireless telecommunications services business in which the asset is 
primarily used, and that following the sale of the Divested Assets, 
defendant will not undertake, directly or indirectly, any

[[Page 44366]]

challenges to the environmental, zoning, licensing or other permits 
relating to the operation of the Divestiture Assets.
    H. Unless plaintiff otherwise consents in writing, the divestitures 
pursuant to Section IV, or by a Divestiture Trustee appointed pursuant 
to Seciton V of this Final Judgment, shall include the entire 
Divestiture Assets and with respect to the Wireless Business 
Divestiture Assets, shall be accomplished in such a way as to satisfy 
plaintiff, in its sole discretion, that these assets can and will be 
used by the acquirer(s) as part of a viable, ongoing business engaged 
in the provision of mobile wireless telecommunications services. With 
the exception of the Wireless Business Divestiture assets in the 
Nebraska RSAs, all of which must be divested to a single Acquirer, the 
divestiture of the Divestiture Assets may be made to one or more 
Acquirers, provided that in each instance it is demonstrated to the 
sole satisfaction of plaintiff that the Divestiture Assets will remain 
viable and the divestiture of such assets will remedy the competitive 
harm alleged in the Complaint. The divestitures of the Divestiture 
Assets, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) Shall be made to an Acquirer (or Acquirers) that, in 
plaintiff's sole judgment,
    (a) With respect to the Wireless Business Divestiture Assets, has 
the intent and capability (including the necessary managerial, 
operational, technical, and financial capability) of competing 
effectively in the provision of mobile wireless telecommunications 
services; and
    (b) With respect to the Cellular One Group Assets, has the intent 
and capability (including the necessary managerial, operational, 
technical, and financial capability) of maintaining and promoting the 
intellectual property including trademarks and service marks.
    (2) Shall be accomplished so as to satisfy plaintiff in its sole 
discretion, that none of the terms of any agreement between the 
Acquirer (0r Acquirers) and any defendant shall give defendants the 
ability unreasonably to raise the Acquirer's costs, to lower the 
Acquirer's efficiency, or otherwise interfere with the ability of the 
Acquirer to compete effectively.
    I. At the option of the Acquirer(s) of the Divestiture Assets, 
defendants shall enter into a contract for transition services 
customarily provided in connection with the sale of a business 
providing mobile wireless telecommunications services or intellectual 
property licensing sufficient to meet all or part of the needs of the 
Acquirer for a period of up to one year. The terms and conditions of 
any contractual arrangement meant to satisfy this provision must be 
reasonably related to market conditions.
    J. To the extent that the Divestiture Assets use intellectual 
property, as required to be identified by Section II.K.(2), that cannot 
be transferred or assigned without the consent of the licensor or other 
third parties, defendants shall use their best efforts to obtain those 
consents.

V. Appointment of Divestiture Trustee

    A. If defendants have not divested the Divestiture Assets within 
the time period specified in Section IV. A, defendants shall notify 
plaintiff of that fact in writing specifically identifying the 
Divestiture Assets that have not been divested. Then, upon application 
of plaintiff, the Court shall appoint a Divestiture Trustee selected by 
plaintiff and approved by the Court to effect the divestiture of the 
Divestiture Assets. The Divestiture Trustee, will have all the rights 
and responsibilities of the Management Trustee appointed pursuant to 
the Preservation of Assets Stipulation and Order, and will be 
responsible for:
    (1) Accomplishing divestiture of all Divestiture Assets transferred 
to the Divestiture Trustee from defendants in accordance with the terms 
of this Final Judgment, to an Acquirer or Acquirers approved by 
plaintiff, under Section IV.A of this Final Judgment;
    (2) Exercising the responsibilities of the licensee of any 
transferred Wireless Business Divestiture Assets and controlling and 
operating any transferred Wireless Business Divestiture Assets, to 
ensure that the business remain ongoing, economically viable 
competitors in the provision of mobile wireless telecommunications 
services in the sixteen (16) license areas specified in the Wireless 
Business Divestiture Assets, until they are divested to an Acquirer or 
Acquirers, and the Divestiture Trustee shall agree to be bound by this 
Final Judgment; and
    (3) Exercising the responsibilities of the licensee of any 
transferred Cellular One Group Assets and controlling and operating any 
transferred Cellular One Group Assets, to ensure that the business 
remains ongoing and that the obligations of the Cellular One Group 
under the Cellular One license agreements are fulfilled, and they are 
divested to an Acquirer or Acquirers, and the Divestiture Trustee shall 
agree to be bound by this Final Judgment.
    B. Defendants shall submit a proposed trust agreement (``Trust 
Agreement'') to plaintiff, which must be consistent with the terms of 
this Final Judgment and which must receive approval by plaintiff in its 
sole discretion, who shall communicate to defendants within ten (10) 
business days its approval or disapproval of the proposed Trust 
Agreement, and which must be executed by the defendants and the 
Divestiture Trustee within five (5) business days after approval by 
plaintiff.
    C. After obtaining any necessary approvals from the FCC for the 
assignment of the licenses of the remaining Divestiture Assets to the 
Divestiture Trustee, defendants shall irrevocably divest the remaining 
Divestiture Assets to the Divestiture Trustee, who will own such assets 
(or own the stock of the entity owning such assets, if divestiture is 
to be effected by the creation of such an entity for sale to 
Acquirer(s)) and control such assets, subject to the terms of the 
approved Trust Agreement.
    D. After the appointment of a Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture Trustee shall have the power 
and authority to accomplish the divestiture to an Acquirer(s) 
acceptable to plaintiff, in its sole judgment, at such price and on 
such terms as are then obtainable upon reasonable effort by the 
Divestiture Trustee, subject to the provisions of Sections IV, V, and 
VI of this Final Judgment, and shall have such other powers as this 
Court deems appropriate. Subject to Section V.G of this Final Judgment, 
the Divestiture Trustee may hire at the cost and expense of defendants 
the Management Trustee appointed pursuant to the Preservation of Assets 
Stipulation and Order, and any investment bankers, attorneys or other 
agents, who shall be solely accountable to the Divestiture Trustee, 
reasonably necessary in the Divestiture Trustee's judgment to assist in 
the divestiture.
    E. In addition, notwithstanding any provision to the contrary, 
plaintiff, in its sole discretion, may require defendants to include 
additional assets, or allow, with the written approval of plaintiff, 
defendants to substitute substantially similar assets, which 
substantially relate to the Wireless Business Divestiture Assets to be 
divested by the Divestiture Trustee to facilitate prompt divestiture to 
an acceptable Acquirer.
    F. Defendants shall not object to a sale by the Divestiture Trustee 
on any ground other than the Divestiture Trustee's malfeasance. Any 
such objectives by defendants must be conveyed in writing to plaintiff 
and the Divestiture Trustee within ten (10) calendar days after the 
Divestiture

[[Page 44367]]

Trustee has provided the notice required under Section VI.
    G. The Divestiture Trustee shall serve at the cost and expense of 
defendants, on such terms and conditions as plaintiff approves, and 
shall account for all monies derived from the sale of the assets sold 
and all costs and expenses so incurred. After approval by the Court of 
the Divestiture Trustee's accounting, including fees for its services 
and those of any professionals and agents retained by the Divestiture 
Trustee, all remaining money shall be paid to defendants and the trust 
shall then be terminated. The compensation of the Divestiture Trustee 
and any professionals and agents retained by the Divestiture Trustee 
shall be reasonable in light of the value of the Divestiture Assets and 
based on a fee arrangement providing the Divestiture Trustee with an 
incentive based on the price and terms of the divestiture, and the 
speed with which it is accomplished, but timeliness is paramount.
    H. Defendants shall use their best efforts to assist the 
Divestiture Trustee in accomplishing the required divestitures 
including their best efforts to effect all necessary regulatory 
approvals and will provide any necessary representations or warranties 
as appropriate related to sale of the Divestiture Assets. The 
Divestiture Trustee and any consultants, accountants, attorneys, and 
other persons retained by the Divestiture Trustee shall have full and 
complete access to the personnel, books, records, and facilities of the 
business to be divested, and defendants shall develop financial and 
other information relevant to the assets to be divested as the 
Divestiture Trustee may reasonably request, subject to reasonable 
protection for trade secrets or other confidential research, 
development, or commercial information. Defendants shall take no action 
to interfere with or to impede the Divestiture Trustee's accomplishment 
of the divestitures.
    I. After its appointment, the Divestiture Trustee shall file 
monthly reports with plaintiff and the Court setting forth the 
Divestiture Trusee's efforts to accomplish the divestitures ordered 
under this Final Judgment. To the extent such reports contain 
information that the Divestiture 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 Divestiture Assets, and shall describe in detail each 
contact with any such person. The Divestiture Trustee shall maintain 
full records of all efforts made to divest the Divestiture Assets.
    J. If the Divestiture Trustee has not accomplished such 
divestitures within six (6) months after its appointment, the 
Divestiture Trustee shall promptly file with the Court a report setting 
forth (1) the Divestiture Trustee's efforts to accomplish the required 
divestitures, (2) the reasons, in the Divestiture Trustee's judgment, 
why the required divestitures have not been accomplished, and (3) the 
Divestiture Trustee's recommendations. To the extent such reports 
contain information that the Divestiture Trustee deems confidential, 
such reports shall be filed in the public docket of the Court. The 
Divestiture Trustee shall at the same time furnish such report to the 
plaintiff, who shall have the right to make additional recommendations 
consistent with the purpose of the trust. The Court thereafter shall 
enter such orders as it shall deem appropriate to carry out the purpose 
of the Final Judgment, which may, if necessary, include extending the 
trust and the term of the Divestiture Trustee's appointment by a period 
requested by plaintiff.
    K. After defendants transfer the Divestiture Assets to the 
Divestiture Trustee, and until those Divestiture Assets have been 
divested to an Acquirer or Acquirers approved by plaintiff pursuant to 
Sections IV.A and IV.H, the Divestiture Trustee shall have sole and 
complete authority to manage and operate the Divestiture Assets and to 
exercise the responsibilities of the licensee, and shall not be subject 
to any control or direction by defendants. Defendants shall not retain 
any economic interest in the Divestiture Assets transferred to the 
Divestiture Trustee, apart from the right to receive the proceeds of 
the sale or other disposition of the Divestiture Assets.
    L. The Divestiture Trustee shall operate the Divestiture Assets 
consistent with the Preservation of Assets Stipulation and Order and 
this Final Judgment, with control over operations, marketing, sales and 
Cellular One licensing. Defendants shall not attempt to influence the 
business decisions of the Divestiture Trustee concerning the operation 
and management of the Divestiture Assets, and shall not communicate 
with the Divestiture Trustee concerning divestiture of the Divestiture 
Assets or take any action to influence, interfere with, or impede the 
Divestiture Trustee's accomplishment of the divestitures required by 
this Final Judgment, except that defendants may communicate with the 
Divestiture Trustee to the extent necessary for defendants to comply 
with this Final Judgment and to provide the Divestiture Trustee, if 
requested to do so, with whatever resources or cooperation may be 
required to complete divestiture of the Divestiture Assets and to carry 
out the requirements of the Preservation of Assets Stipulation and 
Order and this Final Judgment. Except as provided in this Final 
Judgment and the Preservation of Assets Stipulation and Order, in no 
event shall defendants provide to, or receive from, the Divestiture 
Trustee, the mobile wireless telecommunications services business, or 
the Cellular One business under the Divestiture Trustee's control any 
non-public or competitively sensitive marketing, sales, pricing or 
other information relating to their respective mobile wireless 
telecommunications services businesses.

VI. Notice of Proposed Divestitures

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the Divestiture Trustee, whichever 
is then responsible for effecting the divestitures required herein, 
shall notify plaintiff in writing of any proposed divestiture required 
by Section IV or V of this Final Judgment. If the Divestiture Trustee 
is responsible, it shall similarly notify defendants. The notice shall 
set forth the details of the proposed divestiture and list the name, 
address, and telephone number of each person not previously identified 
who offered or expressed an interest in or desire to acquire any 
ownership interest in Divestiture Assets, together with full details of 
the same.
    B. Within fifteen (15) calendar days of receipt by plaintiff of 
such notice, plaintiff may request from defendants, the proposed 
Acquirer or Acquirers, any other third party, or the Divestiture 
Trustee if applicable additional information concerning the proposed 
divestiture, the proposed Acquirer or Acquirers, and any other 
potential Acquirer. Defendants and the Divestiture Trustee shall 
furnish any additional information requested within fifteen (15) 
calendar days of the receipt of the request, unless the parties shall 
otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice or 
within twenty (20) calendar days after plaintiff has been provided the 
additional information requested from defendants, the proposed Acquirer 
or Acquirers, any third party, and the Divestiture Trustee, whichever 
is later, plaintiff shall provide written notice to defendants

[[Page 44368]]

and the Divestiture Trustee, if there is one, stating whether or not it 
objects to the proposed divestiture. If plaintiff provides written 
notice that it does not object, the divestiture may be consummated, 
subject only to defendants' limited right to object to the sale under 
section V.F of this Final Judgment. Absent written notice that 
plaintiff does not object to the proposed Acquirer or upon objection by 
plaintiff, a divestiture proposed under Section IV or Section V shall 
not be consummated. Upon objection by defendants under Section V.F, a 
divestiture proposed under Section V shall not be consummated unless 
approved by the Court.

VII. Financing

    Defendants shall not finance all or any part of any divestiture 
made pursuant to Section IV or V of this Final Judgment.

VIII. Preservation of Assets

    Until the divestitures required by this Final Judgment have been 
accomplished, defendants shall take all steps necessary to comply with 
the Preservation of Assets Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestitures 
ordered by this Court.

IX. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, and every thirty (30) calendar days thereafter until 
the divestitures have been completed under Section IV or V of this 
Final Judgment, defendants shall deliver to plaintiff an affidavit as 
to the fact and manner of its compliance with Section IV or V of this 
Final Judgment. Each such affidavit shall include the name, address, 
and telephone number of each person who during the preceding thirty 
(30) days, 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 Divestiture 
Assets, and shall describe in detail each contact with any such person 
during that period. Each such affidavit shall also include a 
description of the efforts defendants have taken to solicit buyers for 
the Divestiture Assets, and to provide required information to 
prospective Acquirers, including the limitations, if any, on such 
information. Assuming the information set forth in the affidavit is 
true and complete, any objection by plaintiff, to information provided 
by defendants, including limitation on information, shall be made 
within fourteen (14) calendar days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to plaintiff an affidavit that 
describes in reasonable detail all actions defendants have taken and 
all steps defendants have implemented on an ongoing basis to comply 
with Section VIII of this Final Judgment. Defendants shall deliver to 
plaintiff an affidavit describing any changes to the efforts and 
actions outlined in defendants' earlier affidavits provided pursuant to 
this section within fifteen (15) calendar days after the change is 
implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Assets until one year after such 
divestitures have been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
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 duly authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of a duly authorized 
representative of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to defendants, be 
permitted.
    (1) Access during defendants' office hours to inspect and copy, or 
at plaintiff's option, to require defendants provide copies of, all 
books, ledgers, accounts, records and documents in the possession, 
custody, or control of defendants, relating to any matters contained in 
this Final Judgment; and
    (2) To interview, either informally or on the record, defendants' 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by defendants.
    B. Upon the written request of a duly authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports, under oath if requested, 
relating to any of the matters, contained in this Final Judgment as may 
be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by plaintiff to any person other than an 
authorized representative of the executive branch of the United States 
or, pursuant to a customary protective order or waiver of 
confidentiality by defendants, the FCC, except in the course of legal 
proceedings to which the United States 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 
defendants to plaintiff, defendants represent and identify in writing 
the material in any such information or documents to which a claim of 
protection may be asserted under Rule 26(c)(7) of the Federal Rules of 
Civil Procedure, and 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 plaintiff shall give 
defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendants may not reacquire or least any part of the Divestiture 
Assets during the term of this Final Judgment provided however that (1) 
defendants shall not be precluded from entering commercially reasonable 
agreements, for a period not to exceed two (2) years from the date of 
the closing of the Transaction, with the purchaser(s) of the Wireless 
Business Divestiture Assets to obtain the right to use equipment that 
defendant Western Wireless used to support both in GSM roaming business 
and the provision of wireless services using other technological 
formats and (2) defendants shall not be precluded from entering into 
agreements with the purchaser of the Cellular One Group Assets to 
license those assets for use (a) outside the United States, and (b) for 
a period not to exceed one (1) year from the date of the closing of the 
Transaction, within the United States.

XII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

XIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry.

[[Page 44369]]

XIV. Public Interest Determination

    Entry of this Final Judgment is in the public interest.

United States of America, Department of Justice, Antitrust Division, 
1401 H Street, NW., Suite 8000, Washington, DC 20530, Plaintiff, v. 
ALLTEL Corporation, One Allied Drive, Little Rock, Arkansas 72202 
and Western Wireless Corporation, 3650 131st Avenue SE, Suite 400, 
Bellevue, Washington 98006, Defendants;
    Case Number 1:05CV01345
    Judge: Royce C. Lamberth,
    Deck Type: Antitrust,
    Date Stamp: 07/06/2005.

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
enjoin the merger of two mobile wireless telecommunications service 
providers, ALLTEL Corporation (``ALLTEL'') and Western Wireless 
Corporation (``Western Wireless''), and to obtain other relief as 
appropriate. Plaintiff alleges as follows:
    1. On January 9, 2005, ALLTEL entered into an agreement to acquire 
Western Wireless under which the two companies would combine their 
mobile wireless telecommunications service businesses. Plaintiff seeks 
to enjoin this transaction because it will substantially lessen 
competition for mobile wireless telecommunications services in several 
geographic markets where ALLTEL and Western Wireless are each other's 
most significant competitor.
    2. ALLTEL provides mobile wireless telecommunications services in 
twenty-four (24) states serving approximately 8.8 million subscribers. 
Western Wireless provides mobile wireless telecommunications services 
in nineteen (19) states under the Cellular One service mark and in one 
(1) license area in Texas under the Western Wireless service mark; it 
has approximately 1.4 million subscribers. The combination of ALLTEL 
and Western Wireless will substantially lessen competition for mobile 
wireless telecommunications services in sixteen (16) geographic areas 
in three (3) states, Arkansas, Kansas and Nebraska, where currently 
both ALLTEL and Western Wireless operate. As a result of the proposed 
acquisition, residents of these mostly rural areas will face the 
likelihood of increased prices, diminished quality or quantity of 
services provided, and less investment in network improvements for 
these services.

1. Jurisdiction and Venue

    3. This Complaint is filed by the United States under Section 15 of 
the Clayton Act, 15 U.S.C. 25, to prevent and restrain defendants from 
violating Section 7 of the Clayton Act, 15 U.S.C. 18.
    4. ALLTEL and Western Wireless are engaged in interstate commerce 
and in activities substantially affecting interstate commerce. The 
Court has jurisdiction over this action pursuant to Sections 15 and 16 
of the Clayton Act, 15 U.S.C. 25, 26 and 28 U.S.C. 1331, 1337.
    5. The defendants have consented to personal jurisdiction and venue 
in this judicial district.

II. The Defendants and the Transaction

    6. ALLTEL, with headquarters in Little Rock, Arkansas, is a 
corporation organized and existing under the laws of the state of 
Delaware. ALLTEL is the sixth largest provider of mobile wireless voice 
and data services in the United States by number of subscribers; it 
serves approximately 8.8 million customers. It provides mobile wireless 
telecommunications services in one hundred fifty-one (151) rural 
service areas and in ninety-two (92) metropolitan statistical areas 
located within twenty-four (24) states and roaming services to other 
mobile wireless providers who use the CDMA platform in these areas. 
ALLTEL provides local wireline telephone service to 3 million customers 
primarily located in rural areas in fifteen (15) states. In 2004, 
ALLTEL earned revenues of approximately $8.2 billion.
    7. Western Wireless, with headquarters in Bellevue, Washington, is 
a corporation organized and existing under the laws of the state of 
Washington. Western Wireless is the ninth largest provider of mobile 
wireless voice and data services in the United States by number of 
subscribers; it serves approximately 1.4 million customers. It operates 
in eighty-eight (88) rural service areas and nineteen (19) metropolitan 
statistical areas located within nineteen (19) western states. Western 
Wireless also provides in its service areas roaming services to other 
providers who use CDMA, TDMA and GSM technology. Through its 
subsidiary, Western Wireless International, it provides communications 
services in seven (7) countries outside of the United States. Western 
Wireless owns the Cellular One Group, a general partnership that owns 
the Cellular One service mark and licenses use of the mark to other 
mobile wireless providers. In 2004, Western earned approximately $1.9 
billion in revenues.
    8. Pursuant to an agreement and Plan of Merger dated January 9, 
2005, ALLTEL will acquire Western Wireless in a stock-and-cash 
transaction valued at approximately $6 billion. If this transaction is 
consummated, ALLTEL and Western Wireless combined would have 
approximately 10 million subscribers in the United States, with $10.1 
billion in revenues and operations in thirty-three (33) states.

III. Trade and Commerce

A. Nature of Trade and Commerce

    9. Mobile wireless telecommunications services allow customers to 
make and receive telephone calls and use data services using radio 
transmissions without being confined to a small area during the call or 
data session, and without the need for unobstructed line-of-sight to 
the radio tower. Mobility is highly prized by customers, as 
demonstrated by the more than 180 million people in the United States 
who own mobile wireless telephones. In 2004, revenues from the sale of 
mobile wireless services in the United States were over $100 billion. 
To meet this desire for mobility, mobile wireless telecommunications 
providers must deploy an extensive network of switches and radio 
transmitters and receivers, and interconnect this network with the 
networks of wireline carriers and with other wireless providers.
    10. The first wireless voice systems were based on analog 
technology, now referred to as first-generation or ``IG'' technology. 
These analog systems were launched after the FCC issued the first 
licenses for mobile wireless telephone service: two cellular licenses 
(A-block and B-block) in each geographic area in the early to mid-
1980s. The licenses are in the 800 MHz range of the radio spectrum, 
each license consists of 25 MHz of spectrum, and they are issued for 
each Metropolitan Statistical Area (``MSA'') and Rural Service Area 
(``RSA'') (collectively, ``Cellular Marketing Areas'' or ``CMAs''), 
with a total of 734 CMAs covering the entire United States. In 1982, 
one of the licenses was issued to the incumbent local exchange carrier 
in the market, and the other was issued by lottery to someone other 
than the incumbent.In the relevant geographic markets, ALLTEL and 
Western Wireless each own one of the cellular licenses.
    11. In 1995, the FCC allocated and subsequently issued licenses for 
additional spectrum for the provision of Personal Communications 
Services (``PCS''), a category of services that includes mobile 
wireless telecommunications services comparable to those offered by 
cellular licensees. These licenses are in the 1.8

[[Page 44370]]

GHz range of the radio spectrum and are divided into six blocks: A, B, 
and C, which consists of 30 MHz each; and D, E, and F, which consist of 
10 MHz each. Geographically, the A and B-block 30 MHz licenses are 
issued by Major Trading Areas (``MTAs''), and C, D, E, and F-block 
licenses are issued by Basic Trading Areas (``BTAs''), several of which 
comprise each MTA. MTAs and BTAs do not generally correspond to MSAs 
and RSAs. With the introduction of the PCS licenses, both cellular and 
PCS licensees began offering digital services, thereby increasing 
capacity, shrinking handsets, and extending battery life. In 1996, one 
provider, a specialized mobile radio (``SMR'' or ``dispatch'') spectrum 
licensee, began to use its SMR spectrum to offer mobile wireless 
telecommunications services comparable to those offered by other mobile 
wireless telecommunications services providers, in conjunction with its 
dispatch, or ``push-to-talk,'' service. Although there are a number of 
providers holding spectrum licenses in each areas of the country, not 
all providers have fully built out their networks throughout each 
license area. In particular, because of the characteristics of PCS 
spectrum, providers holding this type of spectrum have found it less 
attractive to build out in rural areas.
    12. Today, more than 90 percent of all mobile wireless 
telecommunications services customers have digital service, and nearly 
all mobile wireless voice service has migrated to second-generation or 
``2G'' digital technologies: TDMA (time division multiple access), GSM 
(global standard for mobile, a type of TDMA standard used by all 
carriers in Europe), and CDMA (code division multiple access). Mobile 
wireless telecommunications services providers have chosen to build 
their networks on these incompatible technologies and most have chosen 
CDMA or GSM, with TDMA have been orphaned by equipment vendors. (The 
SMR providers use a fourth incompatible technological standard better 
suited to the spectrum they own, and, as SMR licensees, they have no 
obligation to support a specific technology standard.) Even more 
advanced technologies (``2.5G'' and ``3G'') have begun to be deployed 
for voice and data.

B. Relevant Product Market

    13. Mobile wireless telecommunications services is a relevant 
product market. Mobile wireless telecommunications services include 
both voice and data services provided over a radio network and allows 
customers to maintain their telephone calls or data sessions without 
wires, such as when traveling. There are no cost-effective alternatives 
to mobile wireless telecommunications services. Fixed wireless services 
are not mobile, and other wireless services have a limited range (e.g., 
Wi-Fi); neither offers a viable alternative to mobile wireless 
telecommunications service. It is unlikely that a sufficient number of 
customers would switch away from mobile wireless telecommunications 
services to make a small but significant price increase in those 
services unprofitable. Mobile wireless telecommunications services is a 
relevant product market under section 7 of the Clayton Act, 15 U.S.C. 
18.

C. Relevant Geographic Markets

    14. The large majority of customers use mobile wireless 
telecommunications services in close proximity to their workplaces and 
homes. Thus, customers purchasing mobile wireless telecommunications 
services choose among mobile wireless telecommunications services 
providers that offer services where they are located and travel on a 
regular basis: home, work, other areas they commonly visit, and areas 
in between. The number and identity of mobile wireless 
telecommunications services providers varies among geographic areas, 
along with the quality of their service sand the breadth of their 
geographic coverage, all of which are significant factors in customers' 
purchasing decisions. Mobile wireless telecommunications services 
providers can and do offer different promotions, discounts, calling 
plans, and equipment subsidies in different geographic areas, 
effectively varying the price for customers by geographic area.
    15. The United States comprises numerous local geographic markets 
for mobile wireless telecommunications services. The FCC has licensed a 
limited number of mobile wireless telecommunications services providers 
in each local area based upon the availability of radio spectrum. These 
FCC spectrum licensing areas often represent the core of the business 
and social sphere where customers face the same competitive choices for 
mobile wireless telecommunications services. The relevant geographic 
markets in which this transaction will substantially lessen competition 
in mobile wireless telecommunications services are effectively 
represent, but not defined, by FCC spectrum licensing areas.
    16. The relevant geographic markets, under Section 7 of the Clayton 
Act, 15 U.S.C. 18, where the transaction will substantially lessen 
competition for mobile wireless telecommunications services are 
represented by the following FCC spectrum licensing areas which are all 
Rural Service Areas: Arkansas RSA-11 (CMA 334), Kansas RSA-3 (CMA 430), 
Kansas RSA-4 (CMA 431), Kansas RSA-8 (CMA 435), Kansas RSA-9 (CMA 436), 
Kansas RSA-10 (CMA 437), Kansas RSA-14 (CMA 441), Nebraska RSA-2 (CMA 
534), Nebraska RSA-3 (CMA 535), Nebraska RSA-4 (CMA 536), Nebraska RSA-
5 (CMA 537), Nebraska RSA-6 (CMA 538), Nebraska RSA-7 (CMA 539), 
Nebraska RSA-8 (CMA 540), Nebraska RSA-9 (CMA 541), Nebraska RSA-10 
(CMA 542). It is unlikely that a sufficient number of customers would 
switch to mobile wireless telecommunications services providers in a 
different geographic market to make a small but significant price 
increase in the relevant geographic markets unprofitable for mobile 
wireless telecommunications services.

D. Anticompetitive Effects

1. Mobile Wireless Telecommunications Services
    17. The companies' combined market shares for mobile wireless 
telecommunications services in the relevant markets described above, as 
measured in terms of subscribers, range from over 50 to nearly 100 
percent. In each relevant geographic market, ALLTEL has the largest 
market share and, in all but four (4) RSAs, Western Wireless is the 
second-largest mobile wireless telecommunications services provider. In 
all of the relevant geographic markets, ALLTEL and Western Wireless own 
the only 800 MHz band cellular spectrum licenses, which are more 
efficient in serving rural areas than 1900 MHz band PCS spectrum. As a 
result of holding the cellular spectrum licenses and being early 
entrants into these markets, ALLTEL's and Western Wireless' networks 
provide greater depth and breadth of coverage than their competitors, 
which are operating on PCS spectrum in the relevant geographic markets, 
and thus are more attractive to consumers.
    In addition, mobile wireless telecommunications services providers 
with partial coverage in a geographic area do not aggressively market 
their services in these markets because potential customers would use 
their wireless telephones primarily in areas where these providers have 
no network. In theory, these less-built-out providers could serve 
residents of the rural areas through roaming agreements, but as a 
practical matter when service is

[[Page 44371]]

provided on another carrier's network, the providers have to pay 
roaming charges to, and rely on, that provider to maintain the quality 
of the network. Because of these constraints, carriers with limited 
network coverage in an area are reluctant to market their services to 
residents of that area. Therefore, ALLTEL and Western Wireless are 
likely closer substitutes for each other than the other mobile wireless 
services providers who own only PCS spectrum in the relevant geographic 
markets.
    18. The relevant geographic markets for mobile wireless services 
are highly concentrated. As measured by the Herfindahl-Hirschman Index 
(``HHI''), which is commonly employed in merger analysis and is defined 
and explained in Appendix A to this Complaint, concentration in these 
markets ranges from over 2100 to more than 8500, which is well above 
the 1800 threshold at which the Department considers a market to be 
highly concentrated. After ALLTEL's proposed acquisition of Western 
wireless is consummated, the HHIs in the relevant geographic markets 
will range from over 3400 to almost 9700, with increases in the HHI as 
a result of the merger ranging from over 1100 to over 4600, 
significantly beyond the thresholds at which the Department considers a 
transaction likely to cause competitive harm.
    19. Competition between ALLTEL and Western Wireless in the relevant 
geographic markets has resulted in lower prices and higher quality in 
mobile wireless telecommunications services, than would otherwise have 
existed in these geographic markets. In these areas, consumers consider 
ALLTEL and Western Wireless to be the most attractive competitors 
because other providers' networks lack coverage or provide lower 
quality service. If ALLTEL's proposed acquisition of Western Wireless 
is consummated, the relevant geographic markets for mobile wireless 
telecommunications services will become substantially more 
concentrated, and the competition between ALLTEL and Western Wireless 
in mobile wireless telecommunications service will be eliminated in 
these markets. As a result, the loss of competition between ALLTEL and 
Western Wireless increases the likelihood of unilateral actions by the 
merged firm in the relevant geographic markets to increase prices, 
diminish the quality or quantity of services provided, and refrain from 
or delay making investments in network improvements. Therefore, 
ALLTEL's proposed acquisition of Western Wireless will likely result in 
substantially less competition in mobile wireless telecommunications 
services in the relevant geographic markets.
2. Entry
    20. Entry by a new mobile wireless telecommunications services 
provider in the relevant geographic markets would be difficult, time-
consuming, and expensive, requiring the acquisition of spectrum 
licenses and the build-out of a network. Expansion by providers who 
hold spectrum in these areas is also unlikely as the relevant 
geographic markets are rural service areas where the combined firm 
would own all of the available 800 MHz cellular spectrum. Due to 
propagation characteristics of 800 MHz cellular spectrum and 1900 MHz 
PCS spectrum, the 800 MHz signals can cover a substantially broader 
area than the 1900 MHz signals. The estimated coverage advantage of the 
800 MHz cellular spectrum in rural areas ranges from two to as much as 
five times greater than PCS. In rural markets, this difference results 
in higher build-out costs for PCS networks than for cellular networks. 
The high costs of constructing PCS networks in rural markets combined 
with the relatively low population density makes it less likely that 
carriers that own PCS spectrum would build out in the relevant 
geographic markets. Therefore, new entry in response to a small but 
significant price increase for mobile wireless services by the merged 
firm in the relevant geographic markets would not be timely, likely, or 
sufficient to thwart the competitive harm resulting from ALLTEL's 
proposed acquisition of Western Wireless, if it were to be consummated.

IV. Violation Alleged

    21. The effect of ALLTEL's proposed acquisition of Western 
Wireless, if it were to be consummated, may be substantially to lessen 
competition in interstate trade and commerce in the relevant geographic 
markets for mobile wireless telecommunications services, in violation 
of section 7 of the Clayton Act, 15 U.S.C. 18.
    22. Unless restrained, the transaction will likely have the 
following effects in mobile wireless telecommunications services in the 
relevant geographic markets, among others:
    a. Actual and potential competition between ALLTEL and Western 
Wireless will be eliminated;
    b. Competition in general will be lessened substantially;
    c. Prices are likely to increase;
    d. The quality and quantity of services are likely to decrease; and
    e. incentives to improve wireless networks will be reduced.

V. Requested Relief

    23. That ALLTEL's proposed acquisition of Western Wireless be 
adjudged to violate section 7 of the Clayton Act, 15 U.S.C. 18;
    24. That defendants be permanently enjoined from and restrained 
from carrying out the Agreement and Plan of Merger, dated January 9, 
2005, or from entering into or carrying out any agreement, 
understanding, or plan, the effect of which would be to bring the 
wireless services businesses of ALLTEL and Western Wireless under 
common ownership or control;
    25. That plaintiffs be awarded their costs of this action; and
    26. That plaintiffs have such other relief as the Court may deem 
just and proper.

    Dated: July 6, 2005.

     Respectfully Submitted,

For Plaintiff United States of America:

Thomas O. Barnett,

Acting Assistant Attorney General, Antitrust Division.

J. Bruce McDonald,

Deputy Assistant Attorney General, Antitrust Division.

J. Robert Kramer II,
Director of Operations, Antitrust Division.

Nancy Goodman (D.C.  251694),

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

Laury Bobbish,

Assistant Chief, Telecommunications & Media Enforcement Section, 
Antitrust Division.

Deborah A. Roy (D.C. Bar  452573),

Laura R. Starling,
Hillary B. Burchuk (D.C. Bar  366755),
Matthew C. Hammond.

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.

Appendix A--Herfindahl-Hirschman Index

    ``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 30, 30, 20, and 20 percent, 
the HHI is 2600 (302 + 302 + 202 + 
202 = 2600). (Note: Throughout the Complaint, market 
share percentage have been rounded to the nearest whole number, but 
HHIs have been estimated using unrounded percentages in order to 
accurately reflect the concentration of the various markets.) The 
HHI takes into account the relative size distribution of the firms 
in

[[Page 44372]]

a market and approaches zero when a market consists of a large 
number of small firms. The HHI increases both as the number of firms 
in the market decreases and as the disparity in size between 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 highly 
concentrated. See Horizontal Merger Guidelines ] 1.51 (revised Apr. 
8, 1997). Transactions that increase the HHI by more than 100 points 
in concentrated markets presumptively raise antitrust concerns under 
the guidelines issued by the U.S. Department of Justice and Federal 
Trade Commission. See id.

United States of America, Plaintiff. v. ALLTEL Corporation and 
Western Wireless Corporation, Defendants.

Preservation of Assets Stipulation and Order

    It is hereby stipulated and agreed by and between the undersigned 
parties, subject to approval and entry by the Court, that:

I. Definitions

    As used in this Preservation of Assets Stipulation and Order:
    A. ``Acquirer'' of ``Acquirers'' means the entity or entities to 
whom defendants divest the Divestiture Assets.
    B. ``ALLTEL'' means defendant ALLTEL Corporation, a Delaware 
corporation with headquarters in Little Rock, Arkansas, its successors 
and assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``Cellular One Group'' means the Delaware general partnership, 
with headquarters in Bellevue, Washington, engaged in the business of 
licensing and promoting the Cellular One service mark and certain 
related trademarks, service marks, and designs.
    D. ``Cellular One Group Assets' means all legal and economic 
interests Western Wireless holds in the Cellular One Group. Cellular 
One Group Assets shall include all right, title and interest in 
trademarks, trade names, service marks, service names, designs, and 
intellectual property, all license agreements for use of the Cellular 
One mark, technical information, computer software and related 
documentation, and all records relating to the divestiture assets.
    E. ``CMA'' means cellular market area which is used by the Federal 
Communications Commission (``FCC'') to define cellular license areas 
and which consists of Metropolitan Statistical Areas (``MSAs'') and 
Rural Service Areas (``RSAs'').
    F. ``Divestiture Assets'' means the Wireless Business Divestiture 
Assets and the Cellular One Group Assets.
    G. ``GSM'' means global system for mobile communications which is 
one of the standards used for the infrastructure of digital cellular 
service.
    H. ``Multi-line Business Customer'' means a corporate or business 
customer that contracts with Western Wireless for mobile wireless 
services to provide multiple telephones to its employees or members 
whose services are provided pursuant to a contract with the corporate 
or business customer.
    I. ``Transaction'' means the Agreement and Plan of Merger between 
ALLTEL and Western Wireless, dated January 9, 2005.
    J. ``Western Wireless'' means defendant Western Wireless 
Corporation, incorporated in the state of Washington with headquarters 
in Bellevue, Washington, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    K. ``Wireless Business Divestiture Assets'' means, for each mobile 
wireless telecommunications business to be divested under this Final 
Judgment, all types of assets, tangible and intangible, used by 
defendants in the operation of the mobile wireless telecommunications 
businesses to be divested. ``Wireless Business Divestiture Assets'' 
shall be construed broadly to accomplish the complete divestitures of 
the entire business of Western Wireless in each of the following RSA 
license areas as required by the Final Judgment and to ensure that the 
divested mobile wireless telecommunications businesses remain viable, 
ongoing businesses:

(a) Arkansas RSA-11 (CMA 334);
(b) Kansas RSA-3 (CMA 430);
(c) Kansas RSA-4 (CMA 431);
(d) Kansas RSA-8 (CMA 435);
(e) Kansas RSA-9 (CMA 436);
(f) Kansas RSA-10 (CMA 437);
(g) Kansas RSA-14 (CMA 441);
(h) Nebraska RSA-2 (CMA 534);
(i) Nebraska RSA-3 (CMA 535);
(j) Nebraska RSA-4 (CMA 536);
(k) Nebraska RSA-5 (CMA 537);
(l) Nebraska RSA-6 (CMA 538);
(m) Nebraska RSA-7 (CMA 539);
(n) Nebraska RSA-8 (CMA 540);
(o) Nebraska RSA-9 (CMA 541); and
(p) Nebraska RSA-10 (CMA 542);

provided that ALLTEL may retain all of the PCS spectrum currently held 
by Western Wireless in each of these RSAs and provided that ALLTEL need 
not divest the assets used solely to operate Western Wireless' GSM 
roaming business, including GSM roaming contracts and equipment.

    Wireless Busienss Divestiture Assets shall include, without 
limitation, all types of real and personal property, monies and 
financial instruments, equipment, inventory, office furniture, fixed 
assets and furnishings, supplies and materials, contracts, agreements, 
leases, commitments, spectrum licenses issued by the FCC and all other 
licenses, permits and authorizations, operational support systems, cell 
sites, network infrastructure, switches, customer support and billing 
systems, interfaces with other service providers, business and customer 
records and information, customer contracts, customer lists, credit 
records, accounts, and historic and current business plans which relate 
primarily to the wireless business being divested, as well as any 
patents, licenses, sub-licenses, trade secrets, know-how, drawings, 
blueprints, designs, technical and quality specifications and 
protocols, quality assurance and control procedures, manuals and other 
technical information defendants supply to their own employees, 
customers, suppliers, agents, or licensees, and trademarks, trade names 
and service marks or other intellectual property, including all 
intellectual property rights under third-party licenses that are 
capable of being transferred to an Acquirer either in their entirety, 
for assets described in (1) below, or through a license obtained 
through or from Western Wireless, for assets described in (2) below; 
provided that defendants shall only be required to divest Multi-line 
Business Customer contracts, if the primary business address for that 
customer is located within any of the sixteen (16) license areas 
described herein, and further, any subscribers who obtain mobile 
wireless telecommunications services through any such contract retained 
by defendants and who are located within the sixteen (16) 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. Defendants shall provide written 
notice to these subscribers within forty-five (45) days after the 
closing of the Transaction of the option to terminate.
    These divestitures of the Wireless Business Divestiture Assets 
shall be accomplished by:
    (1) Transferring to the Acquirers the complete ownership and/or 
other rights to the assets (other than those assets used substantially 
in the operations of Western Wireless' overall wireless 
telecommunications services business which must be retained to continue 
the existing operations of the wireless properties that defendants are 
not required to divest, and that either are

[[Page 44373]]

not capable of being divided between the divested wireless businesses 
and those not divested, or are assets that the defendants and the 
Acquirer(s) agree, subject to approval of plaintiff, shall not be 
divided); and
    (2) Granting to the Acquirer(s) an option to obtain a non-
exclusive, transferable license from defendants for a reasonable 
period, subject to approval of plaintiff, at the election of an 
Acquirer to use any of Western Wireless' retained assets under 
paragraph (1) above, used in the operation of the wireless 
telecommunications services business being divested, so as to enable 
the Acquirer to continue to operate the divested mobile wireless 
telecommunications services business without impairment. Defendants 
shall identify in a schedule submitted to plaintiff and filed with the 
Court, as expeditiously as possible following the filing of the 
Complaint and in any event prior to any divestitures and before the 
approval by the Court of this Final Judgment, and intellectual property 
rights under third-party licenses that are used by the mobile wireless 
telecommunications services businesses being divested but that 
defendants could not transfer to an Acquirer entirely or by license 
without third-party consent, and the specific reasons why such consent 
is necessary and how such consent would be obtained for each asset.

II. Objectives

    The Final Judgment filed in this case is meant to ensure 
defendants' prompt divestiture of the Divestiture Assets for the 
purpose of preserving viable competitors in the provision of mobile 
wireless telecommunications services in order to remedy the effects 
that plaintiff alleges would otherwise result from ALLTEL's acquisition 
of Western Wireless. This Preservation of Assets Stipulation and Order 
ensures, prior to such divestitures, that competition is maintained 
during the pendency of the ordered divestitures, and that the 
Divestiture Assets remain ongoing business concerns and the Divestiture 
Assets remain economically viable. The Divestiture Assets will remain, 
as provided herein, preserved, independent and uninfluenced by 
defendants.

III. Jurisdiction and Venue

    This Court has jurisdiction over the subject matter of this action 
and each of the parties hereto, and venue of this action is proper in 
the United States District Court for the District of Columbia. The 
Complaint states a claim upon which relief may be granted against 
defendants under section 7 of the Clayton Act, 15 U.S.C. 18.

IV. Compliance With and Entry of Final Judgment

    A. The parties stipulate that a proposed Final Judgment in the form 
attached hereto as Exhibit A may be filed with 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 the 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.
    B. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment, pending the Judgment's entry 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.
    C. Defendants shall not consummate the transaction sought to be 
enjoined by the Complaint herein before the Court has signed this 
Preservation of Assets Stipulation and Order.
    D. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    E. In the event (1) plaintiff has withdrawn its consent, as 
provided in Section IV.A above, or (2) 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.
    F. 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 mistake, hardship or difficulty of compliance 
as grounds for asking the Court to modify any of the provisions 
contained therein.

V. Management Trainee

    A. Plaintiff nominates David S. Turetsky as Management Trustee in 
this case, and defendants have no objection to his immediate 
appointment by this Court. Accordingly, this Court appoints David S. 
Turetsky as Management Trustee to serve as manager of the Divestiture 
Assets until the Divestiture Assets are sold or transferred to a 
Divestiture Trustee pursuant to Section V of the proposed Final 
Judgment. Nothing in this Stipulation shall be interpreted to prevent 
the Management Trustee from becoming the Divestiture pursuant to 
Section V of the proposed Final Judgment.
    B. Prior to the closing of the Transaction, defendants shall enter 
into a trust agreement with David S. Turetsky, subject to the approval 
of plaintiff in its sole discretion, that will grant the rights, 
powers, and authorities necessary to permit him to perform the duties 
and responsibilities of the Management Trustee pursuant to this 
Stipulation. The trust agreement shall enable him to assume all rights, 
powers, and authorities necessary to perform his duties and 
responsibilities, pursuant to this Stipulation and proposed Final 
Judgment and consistent with their purposes. David S. Turetsky or any 
other subsequently appointed Management Trustee shall serve as the cost 
and expense of defendants, on such terms and conditions as plaintiff 
approves, with a fee arrangement that is reasonable in light of the 
person's experience and responsibilities.
    C. The Management Trustee will have the following powers and 
responsibilities with respect to the Divestiture Assets:
    (1) The Management Trustee will have the power to manage the 
Divestiture Assets in the ordinary course of business consistent with 
this Stipulation. Only with the prior written approval of plaintiff, 
may the Management Trustee make any decision, take any action, or enter 
any transaction that is outside the ordinary course of business;
    (2) The Management Trustee shall have a duty, consistent with the 
terms of this Stipulation and the proposed Final Judgment, to monitor 
the organization of the Divestiture Assets; manage the Divestiture 
Assets in order to maximize their value so as to permit expeditious 
divestitures in a manner consistent with the proposed Final Judgment; 
maintain the independence of the Divestiture Assets from defendants, 
control and operate the

[[Page 44374]]

Wireless Business Divestiture Assets to ensure that the Wireless 
Business Divestiture Assets remain an independent, ongoing, 
economically viable competitor to the other mobile wireless 
telecommunications services providers; manage the Cellular One Group 
Assets in a manner so as to maintain the business and value of the 
intellectual property including trademarks and service marks; and 
assure defendants' compliance with their obligations pursuant to this 
Stipulation and the proposed Final Judgment;
    (3) The Management Trustee shall have the authority to retain, the 
cost and expense of defendants, such consultants, accountants, 
attorneys, and other representatives and assistants as are reasonably 
necessary to carry out the Management Trustee's duties and 
responsibilities;
    (4) The Management Trustee and any consultants, accountants, 
attorneys, and any other person retained by the Management Trustee, 
shall have full and complete access to all personnel, books, records, 
documents, and facilities of the Divestiture Assets or to any other 
relevant information as the Management Trustee may reasonably request, 
including, but not limited to, all documents and records kept in the 
normal course of business that relate to the Divestiture Assets. 
Defendants shall develop such financial or other information as the 
Management Trustee may request and shall cooperate with the Management 
Trustee. Defendants shall take no action to interfere with or impede 
the Management Trustee's ability to monitor defendants' compliance with 
this Stipulation and the proposed Final Judgment or otherwise to 
perform his duties and responsibilities consistent with the terms of 
this Stipulation and the proposed Final Judgment;
    (5) The Management Trustee will ensure that the Divestiture Sets 
shall be staffed with sufficient employees to maintain their viability 
and competitiveness. To the extent that any employee whose principal 
responsibilities relate to the Divestiture Assets leaves or has left 
the Divestiture Assets prior to divestiture of the Divestiture Assets, 
the Management Trustee may replace departing or departed employees with 
persons who have similar experience and expertise or determine not to 
replace such departing or departed employees; and
    (6) Thirty (30) days after the Management Trustee has been 
appointed by the Court, and every thirty (30) days thereafter until the 
Divestiture Assets are either transferred to an Acquirer or to the 
Divestiture Trustee, the Management Trustee shall report in writing to 
the plaintiff concerning the efforts to accomplish the purposes of this 
Stipulation and the proposed Final Judgment. Included within that 
report shall be the Management Trustee's assessment of the extent to 
which the Divestiture Assets are meeting (or exceeding) their projected 
goals as are reflected in existing or revised operating plans, budgets, 
projections or any other regularly prepared financial statements and 
the extent to which defendants are fulfilling their responsibilities 
under this Stipulation and the proposed Final Judgment.
    D. The following limitations shall apply to the Management Trustee:
    (1) The Management Trustee shall not be involved, in any way, in 
the operations of other businesses of defendants;
    (2) The Management Trusteee shall have no financial interests 
affected by defendants' revenues, profits or profit margins, except 
that the Management Trustee's compensation for managing the Divestiture 
Assets may include economic incentives dependent on the financial 
performance of the Divestiture Assets provided that those incentives 
are consistent with the objectives of this Stipulation and the proposed 
Final Judgment and are approved by plaintiff; and
    (3) The Management Trustee shall be prohibited from performing any 
further work for defendants for two (2) years after the close of the 
divestiture transactions.
    E. Defendants and the Management Trustee will take all reasonable 
efforts to preserve the confidentiality of information that is material 
to the operation of either the Divestiture Assets or defendants' 
businesses. Defendants' personnel supplying services to the Divestiture 
Assets pursuant to this Stipulation must retain and maintain the 
confidentiality of any and all confidential information material to the 
Divestiture Assets. Except as permitted by this Stipulation and the 
proposed Final Judgment, such persons shall be prohibited from 
providing, discussing, exchanging, circulating or otherwise furnishing 
the confidential information of the Divestiture Assets to or with any 
person employment involves any of defendants' businesses, except as 
necessary to fulfill the purposes of this Stipulation and the proposed 
Final Judgment.
    F. If in the judgment of the Management Trustee, defendants fail to 
provide the services listed in Section VI of this Stipulation to the 
satisfaction of the Management Trustee, upon notification to defendants 
and approval by plaintiff, the Management Trustee may engage third 
parties unaffiliated with the defendants to provide those services for 
the Divestiture Assets, at the cost and expense of defendants, provided 
that defendants may have reasonable access to information to satisfy 
themselves that after the services have been provided, the Divestiture 
Assets are in compliance with all applicable laws, rules and 
regulations.
    G. At the option of the Management Trustee, defendants may also 
provide other products and services, on an arms-length basis provided 
that Management Trustee is not obligated to obtain any other product or 
service from defendants and may acquire any such products or services 
from third parties unaffiliated with defendants.
    H. If the Management Trustee ceases to act or fails to act 
diligently and consistently with the purposes of this Stipulation and 
the proposed Final Judgment, if the Management Trustee proposed by 
plaintiff is not approved by this Court or resigns, or if for any other 
reason the Management Trustee ceases to serve in his or her capacity as 
Management Trustee, the United States may select a substitute 
Management Trustee. In this event, plaintiff will identify to 
defendants the individual or entity it proposes to select as Management 
Trustee. Defendants must make any such objection to this selection 
within five (5) business days after plaintiff notifies defendants of 
the Management Trustee's selection. Upon application of the United 
States, the Court shall approve and appoint a substitute Management 
Trustee. Within five (5) business days of such appointment, defendants 
shall enter into a trust agreement with the Management Trustee subject 
to the approval of plaintiff in its sole discretion as described in 
Section V.B of this Stipulation.

VI. Preservation of Assets

    Until the divestitures required by the proposed Final Judgment have 
been accomplished, except as otherwise approved in advance in writing 
by plaintiff:
    A. Defendants and the Management Trustee shall preserve, maintain, 
and continue to support the Divestiture Assets, take all steps 
necessary to manage the Divestiture Assets in order to maximize their 
revenue, profitability and viability and permit expeditious 
divestitures in a manner consistent with this Stipulation and the 
proposed Final Judgment.
    B. The Wireless Business Divestiture Assets shall be operated by 
the

[[Page 44375]]

Management Trustee as part of an independent, ongoing, economically 
viable competitive business to other mobile wireless telecommunications 
services providers operating in the same license area. The Cellular One 
Group Assets shall be managed by the Management Trustee so that the 
value of the Cellular One brand is maintained, and all obligations 
under existing licensing agreements are fulfilled, and these assets are 
maintained or increased in value. Defendants and the Management Trustee 
shall take all steps necessary to ensure that:
    (1) The management, sales, and operations of the Divestiture Assets 
are independent from defendants' other operations; provided however, 
that at the request of the Divestiture Assets, defendants shall include 
the marketing, pricing and sales of the mobile wireless 
telecommunications services generated by the Wireless Business 
Divestiture Assets in the license areas served by the Wireless Business 
Divestiture Assets within its marketing, promotional, and service 
offerings, in the ordinary course of business, in any national, 
regional, and local marketing programs. The defendants shall not 
display advertising announcing or describing benefits of the 
Transaction in the sixteen (16) divestiture markets. Nothing in this 
Section shall prohibit the Divestiture Assets from developing his own 
reasonable marketing, sales, pricing or promotion offers, which shall 
be funded and supported by defendants;
    (2) The Wireless Business Divestiture Assets are maintained by 
adhering to normal and planned repair, capital improvement, upgrade and 
maintenance schedules;
    (3) The management of the Divestiture Assets will not be influenced 
by defendants;
    (4) The books, records, competitively sensitive sales, marketing 
and pricing information, and decision-making concerning marketing, 
pricing or sales of mobile wireless telecommunications services or the 
Cellular One mark generated by the Divestiture Assets will by kept 
separate and apart from the defendants' other operations; and
    (5) The management of the Divestiture Assets acts to maintain and 
increase the sales and revenues of the Divestiture Assets, and 
maintain, at a minimum, at previously approved levels for 2005 and 
2006, whichever are higher, all promotional, advertising, sales, 
marketing, and technical support for the Divestiture Assets.
    C. Defendants shall provide sufficient working capital and lines 
and sources of credit as deemed necessary by the Management Trustee to 
continue to maintain the Divestiture Assets consistent with this 
Stipulation.
    D. Defendants shall resolve all outstanding obligations related to 
the Divestiture Assets including agent and employee compensation within 
thirty (30) days of closing the Transaction.
    E. Except (1) as recommended by the Management Trustee and approved 
by plaintiff, or (2) as part of a divestiture approved by plaintiff in 
accordance with the terms of the proposed Final Judgment, defendants 
shall not remove, sell, lease, assign, transfer, pledge or otherwise 
dispose of any of the Divestiture Assets outside the ordinary course of 
business.
    F. The Management Trustee, with defendants' cooperation consistent 
with this Stipulation and the proposed Final Judgment, shall maintain, 
in accordance with sound accounting principles, separate, accurate, and 
complete financial ledgers, books and records that report on a periodic 
basis, such as the last business day of every month, consistent with 
past practices, the assets, liabilities, expenses, revenues, and income 
of the Divestiture Assets. As part of the defendants' cooperation, at 
least five (5) days prior to the closing of the Transaction, defendants 
will provide to the Management Trustee and plaintiff three (3) separate 
financial reports for the divestiture markets in each of Arkansas, 
Kansas, and Nebraska, and separately for each of the sixteen (16) 
divested RSAs, detailed management reports describing existing and 
future plans for human resources, marketing, network upgrades and 
capital expenditures. Defendants will produce these reports in a form 
and with content that is acceptable to the Management Trustee and 
plaintiff.
    G. As part of the defendants' cooperation, at least five (5) days 
prior to the closing of the Transaction, defendants will provide all 
reports regularly prepared by defendant Western Wireless that measure 
sales activity in each of the sixteen (16) divestiture markets, 
including but not limited to the Daily Activity Report and the 
Activating Revenue Report, that are in a form and with content 
acceptable to the Management Trustee and plaintiff. If these reports 
cannot be produced for each of the sixteen (16) divestiture markets, 
these reports should cover the smallest geographic area that includes 
the divestiture markets as is technically feasible. If the Transaction 
has not closed within seven (7) days after the filing of the Complaint, 
on that day defendants will submit to plaintiff and the Management 
Trustee current copies of these reports.
    H. Defendants shall take no action that would jeopardize, delay, or 
impede the sale of the Divestiture Assets nor shall defendants take any 
action that would interfere with the ability of any Divestiture Trustee 
appointed pursuant to the proposed Final Judgment to operate and manage 
the Divestiture Assets or to complete the divestitures pursuant to the 
proposed Final Judgment to an Acquirer(s) acceptable to plaintiff.
    I. Within seven (7) days of the filing of the Complaint or prior to 
the closing of the Transaction, whichever is sooner, defendants shall 
appoint (and notify plaintiff and the Management Trustee of their names 
and titles) sufficient employees for each of the Wireless Business 
Divestiture Assets and the Cellular One Group Assets, who are familiar 
with and have had responsibility for the management, operation, 
marketing, and sales of the Divestiture Assets, to assist the 
Management Trustee with his duties and responsibilities hereunder.
    J. Except for employees (1) whose primary employment 
responsibilities relate to the Divestiture Assets, or (2) who are 
involved in providing support services to the Divestiture Assets 
pursuant to Sections V and VI of this Stipulation and Section V of the 
proposed Final Judgment, defendants shall not permit any other of their 
employees, officers, or directors to be involved in the operations of 
the Divestiture Assets.
    K. Except as required by law in the course of (1) complying with 
this Stipulation and the proposed Final Judgment; (2) overseeing 
compliance with policies and standards concerning the safety, health, 
and environmental aspects of the operations of the Divestiture Assets 
and the integrity of their financial controls; (3) defending legal 
claims, investigations or enforcement actions threatened or brought 
against the Divestiture Assets; or (4) obtaining legal advice, 
defendants' employees (excluding employees (a) whose primary employment 
responsibilities relate to the Divestiture Assets, or (b) who are 
involved in providing support services to the Divestiture Assets 
pursuant to Sections V and VI of this Stipulation and Section V of the 
proposed Final Judgment) shall not receive, or have access to, or use 
any material confidential information, not in the public domain, of the 
Divestiture Assets. Defendants may receive aggregate financial 
information relating to the Divestiture Assets to the extent necessary 
to allow defendants to prepare the defendants' consolidated financial 
reports, tax returns, reports

[[Page 44376]]

required by securities laws, and personnel reports. Any such 
information that is obtained pursuant to this subparagraph shall be 
used only for the purposes set forth in this subparagraph.
    L. Defendants may offer a bonus or severance to employees whose 
primary employment responsibilities relate to the Divestiture Assets, 
that continue their employment until divestiture (in addition to any 
other bonus or severance to which the employees would otherwise be 
entitled).
    M. Until the Divestiture Assets are divested to an Acquirer(s) 
acceptable to plaintiff, defendants shall provide to the Divestiture 
Assets, at no cost, support services needed to maintain the Divestiture 
Assets in the ordinary course of business, including but not limited 
to:
    (1) Federal and state regulatory policy development and compliance;
    (2) Human resources administrative services;
    (3) Environmental, health and safety services, and developing 
corporate policies and insuring compliance with federal and state 
regulations and corporate policies;
    (4) Preparation of tax returns;
    (5) Financial accounting and reporting services;
    (6) Audit services;
    (7) Legal services;
    (8) Routine network maintenance, repair, improvements, and 
upgrades;
    (9) Switching, call completion, and other services necessary to 
allow subscribers to use mobile wireless services and complete calls;
    (10) Billing, customer care and customer service related functions 
necessary to maintain the subscriber account and relationship;
    (11) For each retail and indirect sales outlet, a sixty (60) day 
supply of inventory, including both handsets and accessories, branded 
as directed by the Management Trustee, based on each outlet's average 
sales for the prior two (2) months, and if the Management Trustee 
requests, ALLTEL shall make available in sufficient quantities, branded 
as directed by the Management Trustee, handsets and accessories, 
introduced by ALLTEL in similar markets that are compatible with the 
network in the sixteen (16) Divestiture Markets;
    (12) The individual financial reports described in seciton VI.F 
shall be provided on a monthly basis; and
    (13) The sales reports described in Section VI.G shall be provided 
on a daily basis.
    N. Prior to the closing of the Transaction, defendants will notify 
plaintiff in writing of the steps defendants have taken to comply with 
this Section. If the Transaction has not closed within seven (7) days 
after the filing of the Complaint, on that day defendants will submit 
to plaintiff and the Management Trustee a detailed statement of how 
defendants will comply with Section VI.A prior to the closing of the 
Transaction, including but not limited to: (1) Marketing plans for the 
sale of mobile wireless telecommunications services by the mobile 
wireless business to be divested, including customer retention plans 
and promotions; (2) the designation of a management team who will have 
responsibility for and manage the Divestiture Assets prior to the 
closing of the Transaction, identifying any changes from pre-filing 
staffing; (3) plans for retention of employees and payment of retention 
bonuses to employees whose primary duties related to the mobile 
wireless business to be divested; and (4) plans for network 
maintenance, repair improvements, and upgrades of the Wireless 
Divestiture Assets.
    O. This Preservation of Assets Stipulation and Order shall remain 
in effect until consummation of the divestitures required by the 
proposed Final Judgment or until further order of the Court.
    Dated: July 6, 2005.

     Respectively submitted.

For Plaintiff United States

Deborah A. Roy (D.C. Bar 452573),
Laura R. Starling,
Hillary B. Burchuk (D.C. Bar 366755),
Matthew C. Hammond,

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.

For Defendant ALLTEL Corporation

Michael L. Weiner,
Brian C. Mohr (D.C. Bar 385983),

Skadden, Arps, State, Meagher & Florn LLP, Four Times Square, New 
York, New York 10036-6522, (212) 735-2632.

For Defendant Western Wireless Corporation

Ilene Knable Gotts (D.C. Bar  384740),

Wachtell, Lipton, Rosen & Katz, 51 W. 52nd Street, New York, NY 
10019, (212) 403-1247.

Order

    It is so ordered by the Court, this--day of--, 2005.

United States District Judge.

[FR Doc. 05-15020 Filed 5-8-05; 8:45 am]
BILLING CODE 4410-11-M