[Federal Register Volume 71, Number 182 (Wednesday, September 20, 2006)]
[Notices]
[Pages 55015-55028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7766]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Alltel Corp. Proposed Final Judgment and 
Competitive Impact Statement

    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 Competitive Impact 
Statement were filed with the United States District Court for the 
District of Minnesota in United States v. ALLTEL Corp., Civ. Action No. 
0:06-cv-03631 (RHK/AJB). On September 7, 2006, the United States filed 
a Complaint alleging that the proposed acquisition of Midwest Wireless 
Holdings L.L.C. by ALLTEL Corp. 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 in four 
Minnesota markets. The proposed Final Judgment, lodged at the same time 
as the Complaint, requires ALLTEL to divest its mobile wireless 
telecommunication business assets in four markets in rural Minnesota in 
order to proceed with ALLTEL's acquisition of Midwest Wireless. A 
Competitive Impact Statement filed by the United States describes the 
Complaint, the proposed Final Judgment, 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 Competitive Impact Statement are available for 
inspection at the U.S. Department of Justice, Antitrust Division, 325 
Seventh Street, NW., Suite 215, Washington, DC 20530 (202-514-2481), on 
the Internet at http://www.usdoj.gov/atr, and at the Clerk's Office of 
the United States District Court for Minnesota. Copies of these 
materials may be obtained upon request and payment of a copying fee.
    Public comment is invited within the statutory 60-day comment 
period. Such comments and responses thereto will be published in the 
Federal Register and filed with the Court. Comments should be directed 
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).

J. Robert Kramer II,
Director of Operations Antitrust Division.
United States of America Department of Justice, Antitrust Division, 
1401 H Street, NW., Suite 8000 Washington, DC 20530, and State of 
Minnesota Minnesota Attorney General's Office, 445 Minnesota Street, 
Suite 1200, St. Paul, Minnesota 55101, Plaintiffs, v. ALLTEL 
Corporation, One Allied Drive, Little Rock, Arkansas 72202, and 
Midwest Wireless Holdings L.L.C., 2000 Technology Drive, Mankato, 
Minnesota 56002, Defendants

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, and the State of Minnesota, by 
its Attorney General Mike Hatch, bring this civil action to enjoin the 
merger of two mobile wireless telecommunications service providers, 
ALLTEL Corporation (``ALLTEL'') and Midwest Wireless Holdings L.L.C. 
(``Midwest Wireless''), and to obtain other relief as appropriate. 
Plaintiffs allege as follows:
    1. ALLTEL entered into an agreement to acquire Midwest Wireless, 
dated November 17, 2005, under which the two companies would combine 
their mobile wireless telecommunications services businesses 
(``Transaction Agreement''). Plaintiffs seek to enjoin this transaction 
because it will substantially lessen competition for mobile wireless 
telecommunications services in several geographic markets where ALLTEL 
and Midwest Wireless are each other's most significant competitor.
    2. ALLTEL provides mobile wireless telecommunications services in 
35 states serving approximately 11 million subscribers. Midwest 
Wireless provides mobile wireless telecommunications services in three 
Midwestern states serving approximately 440,000 subscribers. The 
combination of ALLTEL and Midwest Wireless will substantially lessen 
competition for mobile wireless telecommunications services in four 
geographic areas in southern Minnesota where currently both ALLTEL and 
Midwest 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.

I. 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. Plaintiff 
Minnesota, by and through its Attorney General, brings this action in 
its sovereign capacity and as parens patriae on behalf of the citizens, 
general welfare, and economy of the State of Minnesota under Section 16 
of the Clayton Act, 15 U.S.C. 26, to prevent defendants from violating 
Section 7 of the Clayton Act, 15 U.S.C. 18.
    4. ALLTEL and Midwest Wireless both provide mobile wireless 
telecommunications services in the State of Minnesota, as well as other 
states. The provision of mobile wireless telecommunications services is 
a commercial activity that substantially affects, and is in the flow 
of, interstate trade and commerce. The defendants purchase substantial 
quantities of handsets and equipment from sources

[[Page 55016]]

outside of Minnesota. They also have entered into roaming and other 
service agreements with companies located outside of Minnesota. The 
Court has jurisdiction over the subject matter of this action and 
jurisdiction over the parties pursuant to 15 U.S.C. 22, 25, and 26, and 
28 U.S.C. 1331, 1337.
    5. Venue in the District is proper under 15 U.S.C. 22 and 28 U.S.C. 
1391(c).

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 fifth largest provider of mobile wireless voice 
and data services in the United States by number of subscribers; it 
serves approximately 11 million customers. It provides mobile wireless 
telecommunications services in 233 Rural Service Areas and 116 
Metropolitan Statistical Areas located within 35 states and roaming 
services to other mobile wireless providers who use CDMA, TDMA and GSM 
technology in these areas. In 2005, ALLTEL earned wireless revenues of 
approximately $6.572 billion.
    7. Midwest Wireless, with headquarters in Mankato, Minnesota, is a 
privately-held Delaware limited-liability company. Midwest Wireless 
provides wireless service in 14 Rural Service Areas and one 
Metropolitan Statistical Area located in Minnesota, Iowa, and Wisconsin 
and has approximately 440,000 customers. In 2005, Midwest Wireless 
earned approximately $264 million in revenues.
    8. Pursuant to the Transaction Agreement dated November 17, 2005, 
ALLTEL will acquire Midwest Wireless for approximately $1.075 billion 
in cash. If this transaction is consummated, ALLTEL and Midwest 
Wireless combined would have approximately 11.5 million subscribers in 
the United States, with $7.8 billion in revenues and operations in 35 
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 2005, revenues from the sale of 
mobile wireless services in the United States were over $113 billion. 
To meet this desire for mobility, mobile wireless telecommunications 
services 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 ``1G'' technology. 
These analog systems were launched after the Federal Communications 
Commission (``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 Midwest 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 1.9 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. Although there are a number of 
providers holding spectrum licenses in each area 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 99% of the total U.S. population lives in 
counties where mobile wireless telecommunications services operators 
offer 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 
(``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 (e.g., Wi-Fi), and therefore are not 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

[[Page 55017]]

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 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 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 
represented, 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 
RSAs located in southern Minnesota: Minnesota RSA-7 (CMA 488), 
Minnesota RSA-8 (CMA 489), Minnesota RSA-9 (CMA 490), and Minnesota 
RSA-10 (CMA 491). 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 60% to nearly 95%. In 
each relevant geographic market, Midwest Wireless has the largest 
market share and, in all but one RSA, ALLTEL is the second-largest 
mobile wireless telecommunications services provider. In all of the 
relevant geographic markets, ALLTEL and Midwest 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 Midwest Wireless's 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 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 Midwest Wireless are likely closer substitutes 
for each other than the other mobile wireless telecommunications 
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 3600 to more than 5600, which is well above 
the 1800 threshold at which the Department considers a market to be 
highly concentrated. After ALLTEL's proposed acquisition of Midwest 
Wireless is consummated, the HHIs in the relevant geographic markets 
will range from over 4700 to over 9100, with increases in the HHI as a 
result of the merger ranging from over 1000 to over 4100, significantly 
beyond the thresholds at which the Department considers a transaction 
likely to cause competitive harm.
    19. Competition between ALLTEL and Midwest 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 Midwest Wireless to be the most attractive competitors 
because other providers' networks lack coverage or provide lower-
quality service. If ALLTEL's proposed acquisition of Midwest Wireless 
is consummated, the relevant geographic markets for mobile wireless 
telecommunications services will become substantially more 
concentrated, and the competition between ALLTEL and Midwest Wireless 
in mobile wireless telecommunications services will be eliminated in 
these markets. As a result, the loss of competition between ALLTEL and 
Midwest 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 Midwest 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

[[Page 55018]]

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 Midwest Wireless, 
if it were to be consummated.

IV. Violation Alleged

    21. The effect of ALLTEL's proposed acquisition of Midwest 
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 Midwest 
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

    The plaintiffs request:
    23. That ALLTEL's proposed acquisition of Midwest 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 Transaction Agreement, dated November 17, 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 Midwest 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:

     Respectfully Submitted,

For Plaintiff United States of America

Thomas O. Barnett,
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,
Chief, Telecommunications & Media, Enforcement Section, Antitrust 
Division.

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

Hillary B. Burchuk, Lawrence M. Frankel.
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.

Rachel K. Paulose,
United States Attorney. 

Perry F. Sekus,
Assistant United States Attorney, Attorney I.D. No. 0309412, 600 
United States Courthouse, 300 South Fourth Street, Minneapolis, MN 
55415, (612) 664-5600, Facsimile: (612) 664-5788.

For Plaintiff State of Minnesota

Mike Hatch,
Attorney General, State of Minnesota.

Kristen M. Olsen,
Assistant Attorney General, Atty. Reg. No. 030489X, 445 Minnesota 
Street, Suite 1200, St. Paul, Minnesota 55101-2130, (651) 296-2921, 
Facsimile: (651) 282-5437.

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 finns 
with shares of 30, 30, 20, and 20 percent, the HHI is 2600 (30\2\ + 
30\2\ + 20\2\ + 20\2\ = 2600). (Note: Throughout the Complaint, market 
share percentages 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 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 those firms 
increases.
    Markets in which the HHI is between 1000 and 1800 points are 
considered to be moderately concentrated, and those in which the HHI is 
in excess of 1800 points are considered to be 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.

In the United States District Court for the District of Minnesota

United States of America and State of Minnesota Plaintiffs, v. ALLTEL 
Corporation and Midwest Wireless Holdings L.L.C., Defendants

Final Judgment

    Whereas, plaintiffs, United States of America and the State of 
Minnesota, filed their Complaint on September 7, 2006, plaintiffs and 
defendants, ALLTEL Corporation (''ALLTEL'') and Midwest Wireless 
Holdings L.L.C. (``Midwest Wireless''), by their respective attorneys, 
have consented to the entry of this Final 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, plaintiffs require defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And Whereas, defendants have represented to plaintiffs 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'' means the entity to whom defendants divest the 
Divestiture Assets.
    B. ``ALLTEL'' means defendant ALLTEL Corporation, a Delaware

[[Page 55019]]

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. ``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'').
    D. ``Divestiture Assets'' means each mobile wireless 
telecommunications services business to be divested under this Final 
Judgment, including all types of assets, tangible and intangible, used 
by defendants in the operation of the mobile wireless 
telecommunications services businesses to be divested. ``Divestiture 
Assets'' shall be construed broadly to accomplish the complete 
divestiture of the entire business of ALLTEL in each of the following 
RSA license areas as required by this Final Judgment and to ensure that 
the divested mobile wireless telecommunications services businesses 
remain viable, ongoing businesses:
    (1) Minnesota RSA-7 (CMA 488);
    (2) Minnesota RSA-8 (CMA 489);
    (3) Minnesota RSA-9 (CMA 490); and
    (4) Minnesota RSA-10 (CMA 491)

provided that ALL TEL may retain all of the PCS spectrum it currently 
holds in each of these RSAs and equipment that is used only for 
wireless transmissions over this PCS spectrum, and provided that ALL 
TEL need not divest the assets used solely to operate ALLTEL's GSM 
roaming business in these RSAs, including GSM roaming contracts and 
equipment.
    The 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 businesses 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 defendant ALLTEL supplies to its 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 ALLTEL, 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 four license areas described herein, and 
further, any subscriber who obtains mobile wireless telecommunications 
services through any such contract retained by defendants and who are 
located within the four geographic areas identified above, shall be 
given the option to terminate their relationship with defendants, 
without financial cost, at any time within one year of the closing of 
the Transaction. Defendants shall provide written notice to these 
subscribers within 45 days after the closing of the Transaction of the 
option to terminate.
    The divestiture of the Divestiture Assets shall be accomplished by:
    (1) Transferring to the Acquirer the complete ownership and/or 
other rights to the assets (other than those assets used substantially 
in the operations of ALL TEL's 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 agree, 
subject to approval of plaintiff United States upon consultation with 
plaintiff Minnesota, shall not be divided); and
    (2) Granting to the Acquirer an option to obtain a nonexclusive, 
transferable license from defendants for a reasonable period, subject 
to approval of plaintiff United States upon consultation with plaintiff 
Minnesota, at the election of an Acquirer to use any of ALLTEL's 
retained assets under paragraph (1) above, used in the operation of the 
mobile wireless telecommunications services businesses being divested, 
so as to enable the Acquirer to continue to operate the divested mobile 
wireless telecommunications services businesses without impairment. 
Defendants shall identify in a schedule submitted to plaintiffs and 
filed with the Court, as expeditiously as possible following the filing 
of the Complaint and in any event prior to any divestiture and before 
the approval by the Court of this Final Judgment, any 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.
    E. ``GSM'' means global system for mobile communications which is 
one of the standards used for the infrastructure of digital cellular 
service.
    F. ``Midwest Wireless'' means defendant Midwest Wireless Holdings 
L.L.C., a Delaware Limited Liability Company, with headquarters in 
Mankato, Minnesota, its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships and joint ventures, and 
their directors, officers, managers, agents, and employees.
    G. ``Multi-line Business Customer'' means a corporate or business 
customer that contracts with ALLTEL 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.
    H. ``Transaction'' means the Transaction Agreement between ALLTEL 
and Midwest Wireless, dated November 17, 2005.

III. Applicability

    A. This Final Judgment applies to defendants ALLTEL and Midwest 
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.

IV. Divestitures

    A. Defendants are ordered and directed, within 120 days after 
consummation of the Transaction, or five days after notice of entry of 
this Final Judgment, whichever is later, to

[[Page 55020]]

divest the Divestiture Assets to an Acquirer acceptable to plaintiff 
United States in its sole discretion upon consultation with plaintiff 
Minnesota, or, if applicable, to a Divestiture Trustee designated 
pursuant to Section V of this Final Judgment. Plaintiff United States, 
in its sole discretion upon consultation with plaintiff Minnesota, may 
agree to one or more extensions of this time period not to exceed 60 
days in total, and shall notify the Court in such circumstances. With 
respect to divestiture of the 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 of the 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 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 Acquirers, 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 
plaintiffs at the same time that such information is made available to 
any other person.
    C. Defendants shall provide to the Acquirer and plaintiffs 
information relating to the personnel involved in the operation, 
development, and sale of mobile wireless telecommunications services in 
the relevant RSAs to enable the Acquirer to make offers of employment. 
Defendants will not interfere with any negotiations by the Acquirer to 
employ any defendant employee whose primary responsibility is the 
operation, development, or sale of mobile wireless services in the 
relevant RSAs.
    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 the Acquirer that (1) The 
Divestiture Assets will be operational on the date of sale, and (2) 
every wireless spectrum license is in full force and effect 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 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, 
defendants will not undertake, directly or indirectly, any challenges 
to the environmental, zoning, licensing or other permits relating to 
the operation of the Divestiture Assets.
    H. Unless plaintiff United States upon consultation with plaintiff 
Minnesota otherwise consents in writing, the divestitures pursuant to 
Section IV, or by a Divestiture Trustee appointed pursuant to Section V 
of this Final Judgment, shall include the entire Divestiture Assets, 
and shall be accomplished in such a way as to satisfy plaintiff United 
States in its sole discretion upon consultation with plaintiff 
Minnesota that these assets can and will be used by the Acquirer as 
part of a viable, ongoing business engaged in the provision of mobile 
wireless telecommunications services. The Divestiture Assets shall all 
be divested to a single Acquirer. The divestiture of the Divestiture 
Assets, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) Shall be made to an Acquirer that, in plaintiff United States's 
sole judgment upon consultation with plaintiff Minnesota, 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
    (2) Shall be accomplished so as to satisfy plaintiff United States 
in its sole discretion upon consultation with plaintiff Minnesota, that 
none of the terms of any agreement between the Acquirer and any 
defendant shall give defendants the ability unreasonably to raise the 
Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to 
interfere with the ability of the Acquirer to compete effectively.
    I. At the option of the Acquirer 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 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.D, 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 
plaintiffs of that fact in writing, specifically identifying the 
Divestiture Assets that have not been divested. Then, upon application 
of plaintiff United States upon consultation with plaintiff Minnesota, 
the Court shall appoint a Divestiture Trustee selected by plaintiff 
United States 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 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 approved by plaintiff 
United States upon consultation with plaintiff Minnesota,

[[Page 55021]]

under Section IV.A of this Final Judgment; and
    (2) exercising the responsibilities of the licensee of any 
transferred Divestiture Assets and controlling and operating any 
transferred Divestiture Assets, to ensure that the businesses remain 
ongoing, economically viable competitors in the provision of mobile 
wireless telecommunications services in the four license areas 
specified in Section II.D, until they are divested to an Acquirer, and 
the Divestiture Trustee shall agree to be bound by this Final Judgment.
    B. Defendants shall submit a proposed trust agreement (``Trust 
Agreement'') to plaintiffs, which must be consistent with the terms of 
this Final Judgment and which must receive approval by plaintiff United 
States in its sole discretion upon consultation with plaintiff 
Minnesota, who shall communicate to defendants within 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 business days after approval by plaintiff United States.
    C. After obtaining any necessary approvals from the FCC for the 
assignment of the licenses of the Divestiture Assets to the Divestiture 
Trustee, defendants shall irrevocably divest the 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) 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 acceptable 
to plaintiff United States, in its sole judgment upon consultation with 
plaintiff Minnesota, 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 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 United States, in its sole discretion upon consultation with 
plaintiff Minnesota, may require defendants to include additional 
assets, or allow, with the written approval of plaintiff United States 
upon consultation with plaintiff Minnesota, defendants to substitute 
substantially similar assets, which substantially relate to the 
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 objections by defendants must be conveyed in writing to plaintiffs 
and the Divestiture Trustee within 10 calendar days after the 
Divestiture 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 United States 
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 
businesses 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 secret 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 plaintiffs and the Court setting forth the 
Divestiture Trustee'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. If the 
Divestiture Trustee designates any information as ``confidential'' in 
any report or notice he submits pursuant to this Final Judgment, within 
five business days after the submission of such report, any plaintiff 
that objects to the designation of information as ``confidential'' will 
notify the Divestiture Trustee. 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 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 not be filed in the public docket of the Court. The 
Divestiture Trustee shall at the same time furnish such report to the 
plaintiffs, 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 United States upon consultation with plaintiff 
Minnesota.

[[Page 55022]]

    K. After defendants transfer the Divestiture Assets to the 
Divestiture Trustee, and until those Divestiture Assets have been 
divested to an Acquirer approved by plaintiff United States pursuant to 
Sections IV.A and IV.R, 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 use or 
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 Order and this Final 
Judgment, with control over operations, marketing, and sales. 
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 Order and this Final 
Judgment. Except as provided in this Final Judgment and the 
Preservation of Assets Order, in no event shall defendants provide to, 
or receive from, the Divestiture Trustee or the mobile wireless 
telecommunications services businesses to be divested 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 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 plaintiffs 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 the Divestiture Assets, together with full 
details of the same.
    B. Within 15 calendar days of receipt by plaintiffs of such notice, 
plaintiffs may request from defendants, the proposed Acquirer, any 
other third party, or the Divestiture Trustee if applicable additional 
information concerning the proposed divestiture, the proposed Acquirer, 
and any other potential Acquirer. Defendants and the Divestiture 
Trustee shall furnish any additional information requested within 15 
calendar days of the receipt of the request, unless the parties shall 
otherwise agree.
    C. Within 30 calendar days after receipt of the notice or within 20 
calendar days after plaintiffs have been provided the additional 
information requested from defendants, the proposed Acquirer, any third 
party, and the Divestiture Trustee, whichever is later, plaintiff 
United States upon consultation with plaintiff Minnesota, shall provide 
written notice to defendants and the Divestiture Trustee, if there is 
one, stating whether it objects to the proposed divestiture. If 
plaintiff United States 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 United States does not 
object to the proposed Acquirer or upon objection by plaintiff United 
States, 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 Order entered by this Court and cease use of 
the Divestiture Assets during the period that the Divestiture Assets 
are managed by the Management Trustee, except to the extent use of such 
assets is permitted under Section XI. Defendants shall take no action 
that would jeopardize the divestitures ordered by this Court.

IX. Affidavits

    A. Within 20 calendar days of the filing of the Complaint in this 
matter, and every 30 calendar days thereafter until the divestitures 
have been completed under Section IV or V of this Final Judgment, 
defendants shall deliver to plaintiffs 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 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 
United States upon consultation with plaintiff Minnesota, to 
information provided by defendants, including limitation on 
information, shall be made within 14 calendar days of receipt of such 
affidavit.
    B. Within 20 calendar days of the filing of the Complaint in this 
matter, defendants shall deliver to plaintiffs 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 
plaintiffs an affidavit describing any changes to the efforts and 
actions outlined in defendants' earlier affidavits provided pursuant to 
this section within 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

[[Page 55023]]

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 United States' 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 United States 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 United States, 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 
United States shall give defendants 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 lease any part of the Divestiture 
Assets during the term of this Final Judgment provided however that 
defendants shall not be precluded from entering commercially reasonable 
agreements, for a period not to exceed two years from the date of the 
closing of the Transaction, with the Acquirer to obtain the right to 
use equipment that defendant ALLTEL used to support both its GSM 
roaming business and the provision of wireless services using other 
technological formats, and provided however that defendants may lease, 
for a period not to exceed 30 days, from the Management Trustee 
appointed by this Court pursuant to the Preservation of Assets Order, 
2.5 MHz of spectrum in each RSA included in the Divestiture Assets.

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 10 years from the date of its entry.

XIV. Public Interest Determination

    Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------
----------------------------------------------------------------

United States District Judge

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 Judgment submitted for entry 
in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    Defendants entered into a Transaction Agreement dated November 17, 
2005, pursuant to which ALLTEL Corporation (``ALLTEL'') will acquire 
Midwest Wireless Holdings L.L.C. (``Midwest Wireless''). Plaintiffs 
filed a civil antitrust Complaint on September 7, 2006 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 four geographic 
areas in the state of Minnesota 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, the parties moved this 
Court to enter a Preservation of Assets Order and plaintiff United 
States lodged a proposed Final Judgment, which are designed to 
eliminate the anticompetitive effects of the acquisition. Under the 
proposed Final Judgment, which is explained more fully below, 
defendants are required to divest ALLTEL's mobile wireless 
telecommunications services businesses and related assets in four 
markets (``Divestiture Assets''). Under the terms of the Preservation 
of Assets Order, defendants will take certain steps to ensure that: (a) 
These assets are preserved and that the Divestiture Assets are operated 
as competitively independent, economically viable and ongoing 
businesses; (b) they will remain independent and uninfluenced by 
defendants or the consummation of the transaction; and (c) competition 
is maintained during the pendency of the ordered divestiture.
    Plaintiffs and defendants have stipulated that the proposed Final 
Judgment may be entered after compliance with the APPA. Entry of the 
proposed Final Judgment would terminate this action, except that the 
Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof. Defendants have also stipulated that they will comply with the 
terms of the Preservation of Assets Order and the proposed Final 
Judgment from the date of signing of the Preservation of Assets 
Stipulation, pending entry of the proposed Final Judgment by the Court 
and the required divestiture. Should the Court decline to enter the 
proposed Final Judgment, defendants have also committed to continue to 
abide by its requirements and those of the Preservation of Assets 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

[[Page 55024]]

the state of Delaware. ALLTEL is the fifth largest provider of mobile 
wireless voice and data services in the United States by number of 
subscribers; it serves approximately 11 million customers. It provides 
mobile wireless telecommunications services in 233 rural service areas 
and 116 metropolitan statistical areas located within 35 states and 
roaming services to other mobile wireless providers who use CDMA, TDMA 
and GSM technology in these areas. In 2005, ALLTEL earned wireless 
revenues of approximately $6.572 billion.
    Midwest Wireless, with headquarters in Mankato, Minnesota, is a 
privately held Delaware limited liability company. Midwest Wireless 
provides wireless service in 14 rural service areas and one 
metropolitan statistical area located in Minnesota, Iowa and Wisconsin 
and has approximately 440,000 customers. In 2004, Midwest Wireless 
earned approximately $264 million in revenues.
    Pursuant to a Transaction Agreement dated November 17, 2005, ALLTEL 
will acquire Midwest Wireless for $1.075 billion in cash. If this 
transaction is consummated, ALLTEL and Midwest Wireless combined would 
have approximately 11.5 million subscribers, with $7.8 billion in 
revenues and operations in 35 states.
    The proposed transaction, as initially agreed to by defendants, 
would lessen competition substantially for mobile wireless 
telecommunications services in four markets. This acquisition is the 
subject of the Complaint and proposed Final Judgment 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 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 2005, revenues for the sale of 
mobile wireless telecommunications services in the United States were 
over $113 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 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 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 1.9 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 99% of the U.S. population lives in counties where 
mobile wireless telecommunications services operators offer 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 Midwest Wireless own the 25 MHz cellular 
licenses and each own 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 Midwest Wireless will 
substantially lessen competition in mobile wireless telecommunications 
services in four 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,

[[Page 55025]]

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 four 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 RSAs in southern Minnesota: Minnesota RSA-7 (CMA 488), 
Minnesota RSA-8 (CMA 489), Minnesota RSA-9 (CMA 490), and Minnesota 
RSA-10 (CMA 491). These four RSAs include the counties of Blue Earth, 
Brown, Chippewa, Cottonwood, Fairbault, Freeborn, Jackson, Kandiyohi, 
Lac qui Parle, Le Sueuer, Lincoln, Lyon, Martin, McLeod, Meeker, 
Murray, Nicollet, Nobles, Pipestone, Redwood, Renville, Rice, Rock, 
Sibley, Steele, Waseca, Watowan and Yellow Medicine.
    The four geographic markets of concern for mobile wireless 
telecommunications services were identified by a fact-specific, market-
by-market analysis that included consideration of, but was not limited 
to, the following factors: The number of mobile wireless 
telecommunications services providers and their competitive strengths 
and weaknesses; ALLTEL's and Midwest Wireless's market shares along 
with those of the other providers; whether additional spectrum is or is 
likely soon 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 Midwest Wireless both own businesses that offer mobile 
wireless telecommunications services in the four 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 60% to nearly 95%. In each 
relevant geographic market, Midwest Wireless has the largest market 
share, and, in all but one RSA, ALLTEL is the second-largest mobile 
wireless telecommunications services provider. In all of the relevant 
geographic markets, ALLTEL and Midwest 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 Midwest Wireless's 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 four geographic areas are reluctant to market their 
services to rural residents of these areas. Therefore, ALLTEL and 
Midwest Wireless are likely closer substitutes for each other than the 
other mobile wireless telecommunications services providers in the 
relevant geographic markets. Additionally, postmerger 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 3600 to more 
than 5600, which is well above the 1800 threshold at which the 
Department considers a market to be highly concentrated. After ALLTEL's 
proposed acquisition of Midwest Wireless is consummated, the HHIs in 
the relevant geographic markets will range from over 4700 to over 9100, 
with increases in the HHI as a result of the merger ranging from over 
1000 to over 4100.
    Competition between ALLTEL and Midwest 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 Midwest Wireless is consummated, the competition between ALLTEL and 
Midwest Wireless in mobile wireless telecommunications services 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 Midwest 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

[[Page 55026]]

geographic markets would not be timely, likely, or sufficient to thwart 
the competitive harm that would result from ALLTEL's proposed 
acquisition of Midwest Wireless.
    For these reasons, plaintiffs concluded that ALLTEL's proposed 
acquisition of Midwest 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 in mobile 
wireless telecommunications services in the four geographic markets of 
concern. The proposed Final Judgment requires defendants, within 120 
days after the filing of the Complaint, or 5 days after notice of the 
entry of the Final Judgment by the Court, whichever is later, to divest 
the Divestiture Assets. The Divestiture Assets are essentially ALLTEL's 
entire mobile wireless telecommunications services business and 800 MHz 
cellular spectrum in the four markets where ALLTEL and Midwest 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 United States in its sole discretion upon 
consultation with plaintiff Minnesota, 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.
    The merged firm may retain ALLTEL's PCS wireless spectrum in the 
four geographic areas and ALLTEL's GSM roaming business, including GSM 
roaming contracts and equipment. ALLTEL's PCS spectrum is used 
primarily to provide roaming services to other providers who use GSM 
technology. Midwest Wireless does not currently provide GSM roaming and 
therefore the proposed acquisition will not lessen competition in 
providing these services. In requiring divestitures, plaintiffs seek 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 proposed Final Judgment requires that the Divestiture Assets be 
divested to a single acquirer who, as a result, will be able to supply 
service to customers that require mobile wireless telecommunications 
service throughout southern rural Minnesota in the same way that ALLTEL 
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 Minnesota FCC licensing areas, in 
addition to the concerns due to eliminating competition within each 
licensing area.

A. Timing of Divestitures

    In antitrust cases involving mergers or joint ventures in which 
plaintiff United States seeks a divestiture remedy, it requires 
completion of the divestitures within the shortest time period 
reasonable under the circumstances. In this case, Section IV.A of the 
proposed Final Judgment requires the divestiture of the Divestiture 
Assets, within 120 days after the filing of the Complaint, or 5 days 
after notice of the entry of the Final Judgment by the Court, whichever 
is later. Plaintiff United States in its sole discretion upon 
consultation with plaintiff Minnesota may extend the date for 
divestiture of the Divestiture Assets by up to 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 dispositively before the end of the required divestiture period, 
the period for divestiture of those assets shall be extended until 5 
days after the FCC has acted.
    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 Order.

B. Use of a Management Trustee

    The Preservation of Assets Stipulation and the Preservation of 
Assets Order, submitted simultaneously with this Competitive Impact 
Statement, ensures that, prior to divestiture, the Divestiture Assets 
are maintained and remain an economically viable ongoing business 
concern. The Divestiture Assets will remain preserved, independent and 
uninfluenced by defendants, so that competition is maintained during 
the pendency of the ordered divestiture.
    The Preservation of Assets Order appoints a management trustee 
selected by plaintiff United States upon consultation with plaintiff 
Minnesota to oversee the Divestiture Assets in the relevant geographic 
markets. The appointment of a management trustee in this unique 
situation is required because the Divestiture Assets are not 
independent facilities that can be held separate and operated as 
standalone units by the merged firm. Rather, the 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 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 
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 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 Order provides that defendants will 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 Order and the proposed Final 
Judgment and the extent to which defendants are fulfilling their 
responsibilities. Finally, the

[[Page 55027]]

management trustee may become the divestiture trustee, pursuant to the 
provisions of Section V of the proposed 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 United States upon consultation with plaintiff Minnesota 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 the Divestiture Assets until they are sold 
to 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 accomplish 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 United States, in its 
sole discretion upon consultation with plaintiff Minnesota, 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 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 plaintiffs 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 no 
later than six months after the assets are transferred to the 
divestiture trustee. At the end of six months, if all divestitures have 
not been accomplished, the trustee and plaintiff United States upon 
consultation with plaintiff Minnesota, 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

    Plaintiffs 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 United States 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 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to plaintiff United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within 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 United States 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 United States considered, as an alternative to the 
proposed Final Judgment, a full trial on the merits against defendants. 
Plaintiff United States could have continued the litigation and sought 
preliminary and permanent injunctions against ALLTEL's acquisition of 
Midwest Wireless. Plaintiff United States is satisfied, however, 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 and, thus, 
would achieve all or substantially all of the relief the government 
would

[[Page 55028]]

have obtained through litigation, but without the time and expense of a 
trial.

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 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)(l)(A) & (B).\1\ 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).
---------------------------------------------------------------------------

    \1\ In 2004, Congress amended the APPA to ensure that courts 
take into account the above-quoted list of relevant factors when 
making a public interest determination. Compare 15 U.S.C. 16(e) 
(2004), with 15 U.S.C. 16 (e)(1) (2006) (substituting ``shall'' for 
``may'' in directing relevant factors for courts to consider and 
amending list of factors to focus on competitive considerations and 
to address potentially ambiguous judgment terms). On the points 
discussed herein, the 2004 amendments did not alter the substance of 
the Tunney Act, and the pre-2004 precedents cited below remain 
applicable.
---------------------------------------------------------------------------

    With respect to the adequacy of the relief secured by the decree, a 
court may not ``engage in an unrestricted evaluation of what relief 
would best serve the public.'' United States v. BNS, Inc., 858 F.2d 
456, 462 (9th Cir. 1988) (citing United States v. Bechtel Corp., 648 
F.2d 660, 666 (9th Cir. 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\ In 
making its public interest determination, a district court must accord 
due respect to the government's prediction as to the effect of proposed 
remedies, its perception of the market structure, and its views of the 
nature of the case. United States v. Archer-Daniels-Midland Co., 272 F. 
Supp. 2d 1, 6 (D.D.C. 2003).
---------------------------------------------------------------------------

    \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''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (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' '').
---------------------------------------------------------------------------

    Court approval of a final judgment requires a standard more 
flexible and less strict than the standard required for a funding 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 Co., 552 F. Supp. 131, 151 
(D.D.C. 1982) (citations omitted) (quoting Gillette Co., 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 decree 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.
    In its 2004 amendments to the Tunney Act, Congress made clear its 
intent to preserve the practical benefits of utilizing consent decrees 
in antitrust enforcement, adding the unambiguous instruction 
``[n]othing 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. Sec.  16(e)(2). This language codified the 
intent of the original 1974 statute, expressed by Senator Tunney in the 
legislative history: ``The 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). Rather:

    Absent 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-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977).

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: September 7, 2006.

     Respectfully submitted,

Rachel K. Paulose,

United States Attorney.

Perry F. Sekus (No. 0309412),
Assistant United States Attorney, 600 United States Courthouse, 300 
South Fourth Street, Minneapolis, MN 55415, (612) 664-5600, 
Facsimile: (612) 664-5788.

Hillary B. Burchuk,

Lawrence M. Frankel,

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.

[FR Doc. 06-7766 Filed 9-19-06; 8:45 am]
BILLING CODE 4410-11-M