[Federal Register Volume 73, Number 125 (Friday, June 27, 2008)]
[Notices]
[Pages 36557-36569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14545]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Verizon Communications Inc. and Rural Cellular 
Corporation; 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 proposed Final Judgment, 
Stipulation, and

[[Page 36558]]

Competitive Impact Statement have been filed with the United States 
District Court for the District of Columbia in United States of America 
v. Verizon Communications Inc. and Rural Cellular Corporation, Civil 
Action No. 08-cv-0993 (EGS). On June 10, 2008, the United States filed 
a Complaint alleging that the proposed acquisition by Verizon 
Communications Inc. (``Verizon'') of the wireless telecommunications 
services business of Rural Cellular Corporation (``RCC'') 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 six (6) geographic areas. The proposed Final Judgment, 
filed the same time as the Complaint, requires the divestiture of RCC's 
mobile wireless telecommunications services businesses in the state of 
Vermont and in certain areas in the states of New York and Washington 
in order for Verizon to proceed with its $2.67 billion acquisition of 
RCC. The Competitive Impact Statement filed by the United States 
describes the Complaint, the proposed Final Judgment, the industry, and 
the remedies available to private litigants who may have been injured 
by the alleged violation.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, Suite 1010, 
Liberty Square Building, 450 5th Street, Washington, DC 20530 
(telephone: 202-514-2481), on the Department of Justice's Web site at 
http://www.usdoj.gov/atr, and at the Office of the Clerk of the United 
States District Court for the District of Columbia. Copies of these 
materials may be obtained from the Antitrust Division upon request and 
payment of the copying fee set by the Department of Justice 
regulations.
    Public comment is invited within 60 days of the date of this 
notice. 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 and Media Enforcement 
Section, Antitrust Division, U.S. Department of Justice, 1401 H Street, 
NW., Suite 8000, Washington, DC 20530 (telephone: 202-514-5621).

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

In the United States District Court for the District of Columbia

    United States Of America, Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 8000, Washington, DC 20530, and 
State of Vermont, Office of the Vermont Attorney General, 109 State 
Street, Montpelier, Vermont 056091001, Plaintiffs, v. Verizon 
Communications Inc., 140 West Street, New York, New York 1007, and 
Rural Cellular Corporation, 3905 Dakota Street SW., Alexandria, 
Minnesota 56308, Defendants.
Civil No. 1:08-cv-00993(EGS).
Judge Emmet G. Sullivan.
Filed: June 10, 2008.

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, and the State of Vermont, by its 
Attorney General William H. Sorrell, bring this civil action to enjoin 
the merger of two mobile wireless telecommunications services 
providers, Verizon Communications Inc. (``Verizon'') and Rural Cellular 
Corporation (``RCC''), and to obtain other relief as appropriate. 
Plaintiffs allege as follows:
    1. Verizon entered into an agreement to acquire RCC, dated July 29, 
2007, under which the two companies would combine their mobile wireless 
telecommunications services businesses (``Transaction Agreement''). 
Plaintiffs seek to enjoin this transaction because it likely will 
substantially lessen competition to provide mobile wireless 
telecommunications services in several geographic markets where Verizon 
and RCC are each other's most significant competitor.
    2. Verizon's mobile wireless telecommunications services network 
covers 263 million people in 49 states and serves in excess of 65 
million subscribers. RCC provides mobile wireless telecommunications 
services in 15 states and serves approximately 790,000 subscribers. The 
combination of Verizon and RCC likely will substantially lessen 
competition for mobile wireless telecommunications services throughout 
Vermont, one geographic area in New York that is contiguous to Vermont, 
and in northeast Washington, where both Verizon and RCC currently 
operate. As a result of the proposed acquisition, residents of these 
areas will likely face increased prices, diminished quality or quantity 
of services, 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, as amended, 15 U.S.C. Sec.  18. 
Plaintiff Vermont, 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 Vermont 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. Verizon and RCC are engaged in interstate commerce and in 
activities substantially affecting interstate commerce. The Court has 
jurisdiction over this action pursuant to Sections 15 and 16 of the 
Clayton Act, 15 U.S.C. 25 and 26, and 28 U.S.C. 1331 and 1337.
    5. The defendants have consented to personal jurisdiction and venue 
in this judicial district.

II. The Defendants and the Transaction

    6. Verizon, with headquarters in New York, is a corporation 
organized and existing under the laws of the State of Delaware. Verizon 
is one of the world's largest providers of communications services. 
Verizon is the second largest mobile wireless telecommunications 
services provider in the United States as measured by subscribers, 
provides mobile wireless telecommunications services in 49 states, and 
serves in excess of 65 million subscribers. In 2007, Verizon earned 
mobile wireless telecommunications services revenues of approximately 
$43 billion.
    7. RCC, with headquarters in Alexandria, Minnesota, is a 
corporation organized and existing under the laws of the State of 
Minnesota. RCC is the 10th largest mobile wireless telecommunications 
services provider in the United States as measured by subscribers, and 
provides mobile wireless telecommunications services in 15 states. It 
has approximately 790,000 subscribers. In 2007, RCC earned 
approximately $635.3 million in revenues.
    8. Pursuant to an Agreement and Plan of Merger dated July 29, 2007, 
Verizon will acquire RCC for approximately $267 billion. If this 
transaction is consummated, Verizon and RCC combined would have 
approximately 66 million subscribers in the United States, with $44 
billion in mobile wireless telecommunications services revenues.

[[Page 36559]]

III. Trade and Commerce

A. Nature of Trade and Commerce

    9. Mobile wireless telecommunications services allow customers to 
make and receive telephone calls and obtain 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 valued by customers, as 
demonstrated by the more than 255 million people in the United States 
who own mobile wireless telephones. In 2007, revenues from the sale of 
mobile wireless telecommunications services in the United States were 
over $138 billion. To meet this desire for mobility, mobile wireless 
telecommunications services providers must deploy extensive networks of 
switches and radio transmitters and receivers and interconnect their 
networks with the networks of wireline earners and other mobile 
wireless telecommunications services providers.
    10. In the early to mid-1980s, the FCC issued two cellular licenses 
(A-block and B-block) in 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. Each license consists of 25 MHz of spectrum in the 800 
MHz band. The first mobile wireless voice systems using this cellular 
spectrum were based on analog technology, now referred to as first-
generation or ``1 G'' technology.
    11. In 1995, the FCC licensed 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 1900 MHz 
band 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''). 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.
    12. With the introduction of the PCS licenses, both cellular and 
PCS licensees began offering digital services, thereby increasing 
network capacity, shrinking handsets, and extending battery life. In 
addition, 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 generally have found it less attractive to build out in rural 
areas.
    13. Today, more than 95 percent of the total U.S. population lives 
in counties where three or more mobile wireless telecommunications 
services operators offer service. Nearly all mobile wireless voice 
services have migrated to second-generation or ``2G'' digital 
technologies, GSM (global standard for mobility), and CDMA (code 
division multiple access). Even more advanced technologies (``2.5G'' 
and ``3G''), based on the earlier 2G technologies, have been deployed 
for mobile wireless data services.

B. Relevant Product Market

    14. 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 allow 
customers to maintain their telephone calls or data sessions without 
wires when traveling. There are no cost-effective alternatives to 
mobile wireless telecommunications services. Because fixed wireless 
services are not mobile, they are not regarded by consumers of mobile 
wireless telecommunications services to be a reasonable substitute for 
those services. 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 accordingly 
is a relevant product market under Section 7 of the Clayton Act, 15 
U.S.C. 18.

C. Relevant Geographic Markets

    15. The United States comprises numerous local geographic markets 
for mobile wireless telecommunications services. A large majority of 
customers use mobile wireless telecommunications services in close 
proximity to their workplaces and homes. Thus, customers purchasing 
mobile wireless telecommunications services choose among mobile 
wireless telecommunications services providers that offer services 
where they live, work, and travel on a regular basis. The geographic 
areas in which the FCC has licensed mobile wireless telecommunications 
services providers often represent the core of the business and social 
sphere within which customers have the same competitive choices for 
mobile wireless telephone services. The number and identity of mobile 
wireless telecommunications services providers varies among geographic 
areas, as does the quality of services and breadth of geographic 
coverage offered by providers. Some mobile wireless telecommunications 
services providers can and do offer different promotions, discounts, 
calling plans, and equipment subsidies in different geographic areas, 
varying the price for customers by geographic area.
    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 
effectively represented by the following FCC spectrum licensing areas: 
Burlington, Vermont (CMA 248); New York RSA-2 (CMA 560); Vermont RSA-1 
(CMA 679); Vermont RSA-2 (CMA 680); Washington RSA-2 (CMA 694); and 
Washington RSA-3 (CMA 695). It is unlikely that a sufficient number of 
customers would switch to mobile wireless telecommunications services 
providers who do not offer services in these geographic areas to make a 
small but significant price increase in the relevant geographic markets 
unprofitable.

D. Anticompetitive Effects

1. Mobile Wireless Telecommunications Services
    17. In each of the cellular license areas described above, Verizon 
and RCC are the two largest carriers (based on subscribers), with a 
combined share in each area ranging from over 60% to nearly 94%, and 
are each other's closest competitor for a significant set of customers. 
In all but a portion of one of these cellular license areas, Verizon 
and RCC hold all of the cellular spectrum licenses.
    18. The relevant geographic markets for mobile wireless services 
are highly concentrated. As measured by the Herfindahl-Hirschman Index 
(``Hill''), which is commonly employed in merger analysis and is 
defined and explained in Appendix A to this Complaint, concentration in 
these geographic areas ranges from over 2800 to more than 5100, which 
is well above the 1800

[[Page 36560]]

threshold at which plaintiffs consider a market to be highly 
concentrated. After Verizon's proposed acquisition of RCC is 
consummated, the HHIs in the relevant geographic areas will range from 
over 4900 to over 8700, with increases in the HHI as a result of the 
merger ranging from over 1200 to over 4200, significantly beyond the 
thresholds at which plaintiffs consider a transaction likely to cause 
competitive harm.
    19. Competition between Verizon and RCC 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 Verizon 
and RCC to be particularly attractive competitors because other 
providers' networks lack coverage or provide lower-quality service. If 
Verizon's proposed acquisition of RCC is consummated, competition 
between Verizon and RCC in mobile wireless telecommunications services 
will be eliminated in these markets and the relevant markets for mobile 
wireless telecommunications services will become substantially more 
concentrated. As a result, the loss of competition between Verizon and 
RCC increases the merged firm's incentive and ability 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.
2. Entry
    20. Entry by a new mobile wireless services provider in the 
relevant geographic markets would be difficult, time-consuming, and 
expensive, requiring spectrum licenses and the build out of a network. 
Therefore, any entry in response to a small but significant price 
increase for mobile wireless telecommunications services by the merged 
firm in the relevant geographic markets would not be timely, likely, or 
sufficient to thwart the competitive harm resulting from Verizon's 
proposed acquisition of RCC, if it were to be consummated.

IV. Violation Alleged

    21. The effect of Verizon's proposed acquisition of RCC, 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 Verizon and RCC 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 Verizon's proposed acquisition of RCC be adjudged to 
violate Section 7 of the Clayton Act, 15 U.S.C. 18;
    24. That defendants be permanently enjoined from and restrained 
from carrying out the Agreement and Plan of Merger dated July 29, 2007, 
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 Verizon and RCC 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;

Nancy Goodman,
Chief, Telecommunications & Media Enforcement Section, Antitrust 
Division;

Deborah A. Garza,
Deputy Assistant Attorney General, Antitrust Division;

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

Patricia A. Brink,
Deputy Director of Operations, Antitrust Division;

Hillary B. Burchuk (DC Bar No. 366755), Lawrence M. Frankel (DC Bar No. 
441532), Jared A. Hughes, Deborah Roy (DC Bar No. 452573),

Attorneys, Telecommunications & Media Enforcement Section, Antitrust 
Division, U.S. Department of Justice, City Center Building, 1401 H 
Street, NW., Suite 8000, Washington, DC 20530, Phone: (202) 514-5621 
Facsimile: (202) 514-6381.
For Plaintiff State of Vermont:

William H. Sorrell,
Vermont Attorney General;

Julie Brill,
Assistant Attorney General and Director, Antitrust;

Jennifer Giaimo,
Assistant Attorney General,

Office of the Vermont Attorney General, 109 State Street, Montpelier, 
Vermont 05609-1001, (802) 828-3658, Facsimile: (802) 828-2154.

Appendix A

Herfindahl-Hirschman Index

    ``HHI'' means the Herfindahl-Hirschman Index, a commonly 
accepted measure of market concentration. It is calculated by 
squaring the market share of each firm competing in the market and 
then summing the resulting numbers. For example, for a market 
consisting of four firms with shares of 30, 30, 20, and 20 percent, 
the HHI is 2600 (302 + 302 +202 + 
202 = 2600). (Note: Throughout the Complaint, market 
share 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 Columbia

    United States of America and State of Vermont, Plaintiffs, v. 
Verizon Communications Inc. and Rural Cellular Corporation, 
Defendants.
Case No. 1:08-cv-00993(EGS).
Judge Emmet G. Sullivan.
Filed: June 10, 2008.

Final Judgment

    Whereas, plaintiffs, United States of America and the State of 
Vermont, filed their Complaint on June 10, 2008, plaintiffs and 
defendants, Verizon Communications Inc. (``Verizon'') and Rural 
Cellular Corporation (``RCC''), 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;

[[Page 36561]]

    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, as amended (15 U.S.C. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest the Divestiture Assets.
    B. ``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'')
    C. ``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 RCC in each of the following 
CMA license areas as required by this Final Judgment and to ensure 
that the divested mobile wireless telecommunications services 
businesses remain viable, ongoing businesses:

(1) Burlington, VT MSA (CMA 248);
(2) New York RSA 2 (CMA 560);
(3) Vermont RSA 1 (CMA 679);
(4) Vermont RSA 2 (CMA 680);
(5) Washington RSA 2 (CMA 694); and
(6) Washington RSA 3 (CMA 695);

provided that defendants may retain all of the PCS spectrum licenses 
RCC currently holds in each of these CMAs, except in the Burlington 
MSA, and equipment that is used only for wireless transmissions over 
this PCS spectrum. Defendants may also retain the Ericsson AXE 810 
switch located in Colchester, VT used to support the GSM mobile 
wireless telecommunications services currently provided by RCC; the 
Lucent 5E switch located in Colchester, VT used to support CDMA, 
TDMA and analog mobile wireless telecommunications services 
currently provided by RCC; the CDMA, TDMA and analog equipment on 
the radio tower located at Woodstock (latitude 43.613975, longitude 
-72.52175) and any associated rights for this equipment to remain on 
this tower currently owned and held by RCC; and the CDMA equipment 
located on the radio tower located at Stratton (latitude 43.11344, 
longitude -72.90691) and any associated rights for this equipment to 
remain on this tower currently owned and held by RCC. In addition, 
defendants also (i) may retain in the Burlington MSA, RCC's PCS 
spectrum license, and (ii) in the Vermont RSA 2-B2 service area, 
which includes Bennington and Windham counties, and the portion of 
Windsor county south of U.S. Route 4, may substitute a license for 
10 MHz of RCC's cellular spectrum for RCC's 10 MHz PCS spectrum 
license, if approved by plaintiff United States in its sole 
discretion, upon consultation with plaintiff Vermont.
    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 that 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 RCC 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 the Acquirer(s) either in their 
entirety, for assets described in (a) below, or through a license 
obtained through or from RCC, for assets described in (b) 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 six 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 six license 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:
    (a) transferring to the Acquirer(s) the complete ownership and/
or other rights to the assets (other than those assets used 
substantially in the operations of RCC's overall wireless 
telecommunications services business that must be retained to 
continue the existing operations of the wireless properties that 
defendants are not required to divest, and that either are not 
capable of being divided between the divested wireless 
telecommunications services businesses and those not divested, or 
are assets that the defendants and the Acquirer(s) agree, subject to 
the approval of plaintiff United States, shall not be divided); and
    (b) granting to the Acquirer(s) an option to obtain a 
nonexclusive, transferable license from defendants for a reasonable 
period, subject to the approval of plaintiff United States, and at 
the election of the Acquirer(s), to use any of RCC's retained assets 
under paragraph (a) above used in operating the mobile wireless 
telecommunications services businesses being divested, so as to 
enable the Acquirer(s) to continue to operate the divested mobile 
wireless telecommunications services businesses without impairment. 
Defendants shall identify in a schedule submitted to plaintiff 
United States 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 and all intellectual property rights under third-party 
licenses that are used by the mobile wireless telecommunications 
services businesses being divested that defendants could not 
transfer to the Acquirer(s) entirely or by license without third-
party consent, the specific reasons why such consent is necessary, 
and how such consent would be obtained for each asset.
    D. ``Multi-line Business Customer'' means a corporate or 
business customer that contracts with RCC for mobile wireless 
telecommunications services to provide multiple telephones to its 
employees or members whose services are provided pursuant to a 
contract with the corporate or business customer.
    E. ``RCC'' means defendant Rural Cellular Corporation, a 
Minnesota corporation with its headquarters in Alexandria, 
Minnesota, its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships and joint ventures, and 
their directors, officers, managers, agents, and employees.
    F. ``Transaction'' means the Agreement and Plan of Merger, dated 
July 29, 2007.
    G. ``Verizon'' means defendant Verizon Communications Inc., a 
Delaware corporation, with its headquarters in New York, New York, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.

III. Applicability

    A. This Final Judgment applies to defendants Verizon and RCC, 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. If, prior to complying with Section IV and V of this Final 
Judgment, Defendants sell or otherwise dispose of all or 
substantially all of their assets or of lesser business units that

[[Page 36562]]

include the Divestiture Assets, they shall require the purchaser to 
be bound by the provisions of this Final Judgment. Defendants need 
not obtain such an agreement from the acquirer(s) of the assets 
divested pursuant to this Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within 120 days after 
consummation of the Transaction, or five (5) calendar days after 
notice of the entry of this Final Judgment by the Court, whichever 
is later, to divest the Divestiture Assets in a manner consistent 
with this Final Judgment to an Acquirer or Acquirers acceptable to 
plaintiff United States in its sole discretion, and with respect to 
the Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, or, if applicable, to a Divestiture Trustee 
designated pursuant to Section V of this Final Judgment. Plaintiff 
United States, in its sole discretion, and with respect to the 
Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, may agree to one or more extensions of this time 
period not to exceed 60 calendar 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 or are on file with the FCC within the 
period permitted for divestiture seeking approval to assign or 
transfer licenses to the Acquirer(s) 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 (5) days after such approval is received. 
Defendants agree to use their best efforts to accomplish the 
divestitures set forth in this Final Judgment and to seek all 
necessary regulatory approvals as expeditiously as possible. This 
Final Judgment does not limit the FCC's exercise of its regulatory 
powers and process with respect to the Divestiture Assets. 
Authorization by the FCC to conduct the divestiture of a Divestiture 
Asset in a particular manner will not modify any of the requirements 
of this decree.
    B. In accomplishing the divestitures ordered by this Final 
Judgment, defendants shall promptly make known, if they have not 
already done so, by usual and customary means, the availability of 
the Divestiture Assets. Defendants shall inform any person making 
inquiry regarding a possible purchase of the Divestiture Assets that 
they are being divested pursuant to this Final Judgment and provide 
that person with a copy of this Final Judgment. Defendants shall 
offer to furnish to all prospective 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. Notwithstanding 
the provisions of this paragraph, with the consent of plaintiff 
United States in its sole discretion, and with respect to the 
Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, the defendants may enter into exclusive 
negotiations to sell the Divestiture Assets and may limit their 
obligations under this paragraph to the provision of information to 
a single potential buyer for the duration of those negotiations.
    C. Defendants shall provide the Acquirer(s) and plaintiffs 
information relating to the personnel involved in the operation, 
development, and sale or license of the Divestiture Assets to enable 
the Acquirer(s) to make offers of employment. Defendants will not 
interfere with any negotiations by the Acquirer(s) to employ any 
defendant employee whose primary responsibility is the operation, 
development, or sale or license of the Divestiture Assets.
    D. Defendants shall permit prospective Acquirers of the 
Divestiture Assets to have reasonable access to personnel and to 
make inspections of the Divestiture Assets; access to any and all 
environmental, zoning, and other permit documents and information; 
and access to any and all financial, operational, and other 
documents and information customarily provided as part of a due 
diligence process.
    E. Defendants shall warrant to the Acquirer(s) 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(s) of the 
Divestiture Assets that there are no material defects in the 
environmental, zoning, licensing or other permits pertaining to the 
operation of each asset and that following the sale of the 
Divestiture 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, and with respect to the 
Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, 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 that 
these assets can and will be used by the Acquirer(s) as part of a 
viable, ongoing business engaged in the provision of mobile wireless 
telecommunications services. The Divestiture Assets in Vermont and 
New York shall all be divested to a single Acquirer and the 
Divestiture Assets in Washington shall all be divested to a single 
Acquirer, provided that it is demonstrated to the sole satisfaction 
of plaintiff United States, and with respect to the Divestiture 
Assets located in Vermont upon consultation with plaintiff Vermont, 
that the Divestiture Assets will remain viable and the divestiture 
of such assets will remedy the competitive harm alleged in the 
Complaint. 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 or Acquirers that, in plaintiff 
United States's sole judgment, and with respect to the Divestiture 
Assets located in Vermont upon consultation with plaintiff Vermont, 
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, and with respect to the Divestiture 
Assets located in Vermont upon consultation with plaintiff Vermont, 
that none of the terms of any agreement between an Acquirer(s) and 
defendants 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(s) of the Divestiture Assets, 
defendants shall enter into a contract for transition services 
customarily provided in connection with the sale of a business 
providing mobile wireless telecommunications services or 
intellectual property licensing sufficient to meet all or part of 
the needs of the Acquirer(s) 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.C, that cannot 
be transferred or assigned without the consent of the licensor or 
other third parties, defendants shall use their best efforts to 
obtain those consents.

V. Appointment of Divestiture Trustee

    A. If defendants have not divested the Divestiture Assets within 
the time period specified in Section IV.A, defendants shall notify 
plaintiff United States, and with respect to the Divestiture Assets 
located in Vermont notify plaintiff Vermont of that fact in writing, 
specifically identifying the Divestiture Assets that have not been 
divested. Upon application of plaintiff United States, and with 
respect to the Divestiture Assets located in Vermont upon 
consultation with plaintiff Vermont, 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 who may be appointed 
pursuant to the Preservation of Assets Stipulation and Order, and 
will be responsible for:
    (1) accomplishing divestiture of all Divestiture Assets 
transferred to the Divestiture Trustee from defendants, in 
accordance with the terms of this Final Judgment, to an Acquirer(s) 
approved by plaintiff United States, and with respect to the 
Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, under Section IV.A of this Final Judgment; and

[[Page 36563]]

    (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 license areas specified 
in Section II.C, until they are divested to an Acquirer(s), and the 
Divestiture Trustee shall agree to be bound by this Final Judgment.
    B. Defendants shall submit a proposed trust agreement (``Trust 
Agreement'') to plaintiff United States, which must be consistent 
with the terms of this Final Judgment and which must receive 
approval by plaintiff United States in its sole discretion, and with 
respect to the Divestiture Assets located in Vermont upon 
consultation with plaintiff Vermont, 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 
remaining Divestiture Assets to the Divestiture Trustee, who will 
own such assets (or own the stock of the entity owning such assets, 
if divestiture is to be effected by the creation of such an entity 
for sale to Acquirer) and control such assets, subject to the terms 
of the approved Trust Agreement.
    D. After the appointment of a Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture Trustee shall have the power 
and authority to accomplish the divestiture to an Acquirer(s) 
acceptable to plaintiff United States, in its sole judgment, and 
with respect to the Divestiture Assets located in Vermont upon 
consultation with plaintiff Vermont, at such price and on such terms 
as are then obtainable upon reasonable effort by the Divestiture 
Trustee, subject to the provisions of Sections IV, V, and VI of this 
Final Judgment, and shall have such other powers as this Court deems 
appropriate. Subject to Section V.G of this Final Judgment, the 
Divestiture Trustee may hire at the cost and expense of defendants 
the Management Trustee appointed pursuant to the Preservation of 
Assets Stipulation and Order and any investment bankers, attorneys 
or other agents, who shall be solely accountable to the Divestiture 
Trustee, reasonably necessary in the Divestiture Trustee's judgment 
to assist in the divestiture.
    E. In addition, notwithstanding any provision to the contrary, 
plaintiff United States, in its sole discretion, and with respect to 
the Divestiture Assets located in Vermont upon consultation with 
plaintiff Vermont, may require defendants to include additional 
assets, or with the written approval of plaintiff United States, 
allow 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(s).
    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 plaintiff United States 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 by the Divestiture Trustee 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. 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 plaintiff United States, and with respect to 
the Divestiture Assets located in Vermont with plaintiff Vermont, 
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. 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 the 
divestitures ordered under the Final Judgment 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 plaintiff United 
States, and with respect to the Divestiture Assets located in 
Vermont to plaintiff Vermont, 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, and with respect to the Divestiture Assets located in 
Vermont upon consultation with plaintiff Vermont.
    K. After defendants transfer the Divestiture Assets to the 
Divestiture Trustee, and until those Divestiture Assets have been 
divested to an Acquirer or Acquirers approved by plaintiff United 
States pursuant to Sections IV.A and IV.H, the Divestiture Trustee 
shall have sole and complete authority to manage and operate the 
Divestiture Assets and to exercise the responsibilities of the 
licensee and shall not be subject to any control or direction by 
defendants. Defendants shall not 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 Stipulation and 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 Stipulation and Order and this Final 
Judgment. Except as provided in this Final Judgment and the 
Preservation of Assets Stipulation and Order, in no event shall 
defendants provide to, or receive from, the Divestiture Trustee or 
the mobile wireless telecommunications services businesses any non-
public or competitively sensitive

[[Page 36564]]

marketing, sales, pricing or other information relating to their 
respective mobile wireless telecommunications services businesses.

VI. Notice of Proposed Divestitures

    A. Within the later of two (2) business days following (i) the 
execution of a definitive divestiture agreement, or (ii) the filing 
of the Complaint in this action, defendants or the Divestiture 
Trustee, whichever is then responsible for effecting the 
divestitures required herein, shall notify plaintiff United States, 
and with respect to the Divestiture Assets located in Vermont 
defendants shall notify plaintiff Vermont, 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 fifteen (15) calendar days of receipt of notice by 
plaintiff United States and plaintiff Vermont, if notice was given 
to plaintiff Vermont, plaintiff United States and plaintiff Vermont 
if it received notice, 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 fifteen (15) calendar days 
of the receipt of the request, unless the parties shall otherwise 
agree.
    C. Within thirty (30) calendar days after receipt of the notice 
or within twenty (20) calendar days after plaintiff United States 
and plaintiff Vermont 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, and with respect to the Divestiture Assets located in 
Vermont upon consultation with plaintiff Vermont, shall provide 
written notice to defendants and the Divestiture Trustee, if there 
is one, stating whether or not 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 Stipulation and 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. 
Defendants shall take no action that would jeopardize the 
divestitures ordered by this Court.

IX. Affidavits

    A. Within twenty (20) calendar days of the filing of the 
Complaint in this matter, and every thirty (30) calendar days 
thereafter until the divestitures have been completed under Section 
IV or V, 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 thirty 
(30) calendar 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, and 
with respect to Divestiture Assets located in Vermont upon 
consultation with plaintiff Vermont, to information provided by 
defendants, including limitation on information, shall be made 
within fourteen (14) calendar days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the 
Complaint in this matter, defendants shall deliver to 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 
filed pursuant to this section within fifteen (15) calendar days 
after the change is implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Assets until one year after such 
divestitures have been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with 
this Final Judgment or whether the Final Judgment should be modified 
or vacated, and subject to any legally recognized privilege, 
authorized representatives of the United States Department of 
Justice (including consultants and other persons retained by 
plaintiff United States) shall, upon written request of an 
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's option, to require defendants to 
provide hard copy or electronic copies of, all books, ledgers, 
accounts, records, data 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 an authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports or response to written 
interrogatories, 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 plaintiff 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 plaintiff 
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)(l)(G) 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)(l)(G) of the Federal Rules of Civil 
Procedure,'' then plaintiff United States shall give defendants ten 
(10) calendar days notice prior to divulging such material in any 
legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendants may not reacquire or lease any part of the 
Divestiture Assets during the term of this Final Judgment.

XII. Retention of Jurisdiction

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

XIII. Expiration of Final Judgment

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

[[Page 36565]]

XIV. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The 
parties have complied with the requirements of the Antitrust 
Procedures and Penalties Act, 15 U.S.C. 16, including making copies 
available to the public of this Final Judgment, the Competitive 
Impact Statement, and any comments thereon and plaintiff United 
States's responses to comments. Based upon the record before the 
Court, which includes the Competitive Impact Statement and any 
comments and response to comments filed with the Court, entry of 
this Final Judgment is in the public interest.

Date:
Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16.
United States District Judge

In the United States District Court for the District of Columbia

    United States Of America and State Of Vermont, Plaintiffs, v. 
Verizon Communications Inc. and Rural Cellular Corporation, 
Defendants.
Case No. 1:08-cv-00993(EGS).
Judge Emmet G. Sullivan.
Filed: June 10, 2008.

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. 1 6(h)-(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 an Agreement and Plan of Merger dated 
July 29, 2007, pursuant to which Verizon Communications Inc. 
(``Verizon'') will acquire Rural Cellular Corporation (``RCC''). 
Plaintiffs United States and the State of Vermont filed a civil 
antitrust Complaint on June 10, 2008 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 throughout Vermont, one 
geographic area in New York that is contiguous to Vermont, and in 
northeast Washington, 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, lower quality service and fewer choices of 
mobile wireless telecommunications services.
    At the same time the Complaint was filed, plaintiffs also filed 
a Preservation of Assets Stipulation and Order and proposed Final 
Judgment, which are designed to eliminate the anticompetitive 
effects of the acquisition. Under the proposed Final Judgment, which 
is explained more fully below, defendants are required to divest 
RCC's mobile wireless telecommunications services businesses and 
related assets throughout Vermont, one geographic area in New York 
that is contiguous to Vermont, and in northeast Washington 
(``Divestiture Assets''). Under the terms of the Preservation of 
Assets Order, defendants will take certain steps to ensure that 
during the pendency of the ordered divestiture: (a) The Divestiture 
Assets are preserved and operated as competitively independent, 
economically viable and ongoing businesses; (b) the Divestiture 
Assets are operated independently and without influence by 
defendants; and (c) competition is maintained.
    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 Stipulation and 
Order and the proposed Final Judgment from the date of signing of 
the Preservation of Assets Stipulation and Order, pending entry of 
the proposed Final Judgment by the Court and the required 
divestitures. Should the Court decline to enter the proposed Final 
Judgment, defendants have also committed to continue to abide by its 
requirements and those of the Preservation of Assets Stipulation and 
Order until the expiration of time for appeal.

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

A. The Defendants and the Proposed Transaction

    Verizon, with headquarters in New York, is a corporation 
organized and existing under the laws of the state of Delaware. 
Verizon is one of the world's largest providers of communications 
services. Verizon is the second largest mobile wireless 
telecommunications services provider in the United States as 
measured by subscribers, provides mobile wireless telecommunications 
services in 49 states, and serves in excess of 65 million 
subscribers. In 2007, Verizon earned mobile wireless 
telecommunications services revenues of approximately $43 billion.
    RCC, with headquarters in Alexandria, Minnesota, is a 
corporation organized and existing under the laws of the state of 
Minnesota. RCC is the 10th largest mobile wireless 
telecommunications services provider in the United States, as 
measured by subscribers and provides mobile wireless 
telecommunications services in 15 states. It has approximately 
790,000 subscribers. In 2007, RCC earned approximately $635.3 
million in revenues.
    Pursuant to an Agreement and Plan of Merger dated July 29, 2007, 
Verizon will acquire RCC for approximately $2.67 billion. If this 
transaction is consummated, Verizon and RCC combined would have 
approximately 66 million subscribers in the United States, with $44 
billion in mobile wireless telecommunications services revenues. The 
proposed transaction, as initially agreed to by defendants, would 
lessen competition substantially for mobile wireless 
telecommunications services throughout Vermont, one geographic area 
in New York that is contiguous to Vermont, and in northeast 
Washington. 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 obtain 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 valued by 
customers, as demonstrated by the more than 255 million people in 
the United States who own mobile wireless telephones. In 2007, 
revenues from the sale of mobile wireless telecommunications 
services in the United States were over $138 billion. To meet this 
desire for mobility, mobile wireless telecommunications services 
providers must deploy extensive networks of switches and radio 
transmitters and receivers and interconnect their networks with the 
networks of wireline carriers and other mobile wireless 
telecommunications services providers.
    In the early to mid-1980s, the FCC issued two cellular licenses 
(A-block and B-block) in 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. Each license consists of 25 MHz of 
spectrum in the 800 MHz band. The first mobile wireless voice 
systems using this cellular spectrum were based on analog 
technology, now referred to as first-generation or ``1G'' 
technology.
    In 1995, the FCC licensed 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 1900 MHz band 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''). 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 
network capacity, shrinking handsets, and extending battery life. In 
addition, 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 generally have found it less 
attractive to build out in rural areas.

[[Page 36566]]

    Today, more than 95 percent of the total U.S. population lives 
in counties where three or more mobile wireless telecommunications 
services operators offer service. Nearly all mobile wireless voice 
services have migrated to second-generation or ``2G'' digital 
technologies, GSM (global standard for mobility), and CDMA (code 
division multiple access). Even more advanced technologies (``2.5G'' 
and ``3G''), based on the earlier 2G technologies, have been 
deployed for mobile wireless data services. Additionally, during the 
past two years, the FCC has auctioned off additional spectrum that 
can be used to support mobile wireless telecommunications services, 
including Advanced Wireless Spectrum (1710-1755 MHz and 2110-2155 
MHz bands) and 700 MHz band spectrum, although it will be several 
years before mobile wireless telecommunications services based on 
this spectrum are widely deployed.

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

    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 
when traveling. There are no cost-effective alternatives to mobile 
wireless telecommunications services. Because fixed wireless 
services are not mobile, they are not regarded by consumers of 
mobile wireless telecommunications services to be a reasonable 
substitute for those services. 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.
    The United States comprises numerous local geographic markets 
for mobile wireless telecommunications services.\1\ A large majority 
of customers use mobile wireless telecommunications services in 
close proximity to their workplaces and homes. Thus, customers 
purchasing mobile wireless telecommunications services choose among 
mobile wireless telecommunications services providers that offer 
services where they live, work, and travel on a regular basis. The 
geographic areas in which the FCC has licensed mobile wireless 
telecommunications services providers often represent the core of 
the business and social sphere within which customers have the same 
competitive choices for mobile wireless telephone services. The 
number and identity of mobile wireless telecommunications services 
providers vanes among geographic areas, as does the quality of 
services and breadth of geographic coverage offered by providers. 
Some mobile wireless telecommunications services providers can and 
do offer different promotions, discounts, calling plans, and 
equipment subsidies in different geographic areas, varying the price 
for customers by geographic area.
---------------------------------------------------------------------------

    \1\ The existence of local markets does not, of course, preclude 
the possibility of competitive effects in a broader geographic area, 
such as a regional or national area.
---------------------------------------------------------------------------

    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 
effectively represented by the following FCC spectrum licensing 
areas: Burlington, Vermont (CMA 248); New York RSA-2 (CMA 560); 
Vermont RSA-l (CMA 679); Vermont RSA-2 (CMA 680); Washington RSA-2 
(CMA 694); and Washington RSA-3 (CMA 695). It is unlikely that a 
sufficient number of customers would switch to mobile wireless 
telecommunications services providers who do not offer services in 
these geographic areas to make a small but significant price 
increase in the relevant geographic markets unprofitable.
    These geographic areas of concern for mobile wireless 
telecommunications services were identified via 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; Verizon's and RCC'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 area 
and in the surrounding area; and the likelihood that any provider 
would expand its existing coverage or that new providers would 
enter.
    In each of the cellular license areas described above, Verizon 
and RCC are the two largest carriers (based on subscribers), with a 
combined share in each area ranging from over 60% to nearly 94%, and 
are each other's closest competitor for a significant set of 
customers. In all but a portion of one of these cellular license 
areas, Verizon and RCC hold all of the cellular spectrum licenses. 
In a portion of the Vermont RSA 2 license area (consisting of 
Bennington and Windham counties, and the portion of Windsor County 
south of U.S. Route 4), Verizon does not own cellular spectrum, but 
it is a strong competitor because, unlike many other providers with 
PCS spectrum in rural areas, it has constructed a PCS network that 
covers a significant portion of the population, supplements that 
network with roaming on another carrier's cellular network and plans 
to substantially expand its own PCS network in the future. Thus, 
even in that area, Verizon and RCC are the leading two competitors 
in terms of share. Taking into account the factors that potentially 
impact competition including coverage area, brand recognition, 
service quality and reputation, handset selection, and service 
features, Verizon and RCC are stronger competitors, and thus closer 
substitutes for each other for a significant set of customers, than 
the other cellular provider, and the other PCS providers, that serve 
this area.
    The relevant geographic areas for mobile wireless services are 
also 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 areas ranges from over 2800 to more than 
5100, which is well above the 1800 threshold at which plaintiffs 
consider a market to be highly concentrated. After Verizon's 
proposed acquisition of RCC is consummated, the HHIs in the relevant 
geographic areas will range from over 4900 to over 8700, with 
increases in the HHI as a result of the merger ranging from over 
1200 to over 4200, significantly beyond the thresholds at which 
plaintiffs consider a transaction likely to cause competitive harm.
    Competition between Verizon and RCC in the relevant geographic 
areas has resulted in lower prices and higher quality in mobile 
wireless telecommunications services than would otherwise have 
existed in these geographic areas. If Verizon's proposed acquisition 
of RCC is consummated, the competition between Verizon and RCC in 
mobile wireless telecommunications services will be eliminated in 
these areas and the relevant geographic areas for mobile wireless 
telecommunications services will become substantially more 
concentrated. As a result, the loss of competition between Verizon 
and RCC increases the merged firm's incentive and ability 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 services provider in the relevant 
geographic areas would be difficult, time-consuming, and expensive, 
requiring spectrum licenses and the build out of a network. 
Therefore, any entry in response to a small but significant price 
increase for mobile wireless telecommunications services by the 
merged firm in these relevant geographic areas would not be timely, 
likely, or sufficient to thwart the competitive harm resulting from 
Verizon's proposed acquisition of RCC, if it were to be consummated.
    For these reasons, plaintiffs concluded that Verizon's proposed 
acquisition of RCC 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 areas alleged in the Complaint.

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 geographic areas of 
concern. The proposed Final Judgment requires defendants, within one 
hundred twenty (120) days after the consummation of the Transaction, 
or five (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 RCC's entire mobile wireless 
telecommunications services businesses in the geographic areas 
described herein where Verizon and RCC 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, (and with respect to the Divestiture Assets located in 
Vermont

[[Page 36567]]

upon consultation with plaintiff Vermont), in its sole discretion 
that the assets will be operated by the purchaser as a viable, 
ongoing business that can compete effectively in each relevant area. 
Defendants must take all reasonable steps necessary to accomplish 
the divestitures quickly and shall cooperate with prospective 
purchasers.
    The proposed Final Judgment requires that a single purchaser 
acquire the Divestiture Assets in New York and Vermont, and a single 
purchaser acquire the Divestiture Assets in Washington. This will 
allow the purchaser of these assets to supply service to customers 
that require mobile wireless telecommunications services throughout 
each of these areas in the same way that RCC 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 FCC licensing areas, in addition to the concerns due 
to eliminating competition within each licensing area.
    Under limited circumstances, defendants are permitted to retain 
specified portions of RCC's mobile wireless assets in the relevant 
geographic areas. First, plaintiffs are not requiring the 
divestiture of the PCS spectrum held by RCC in the RSAs being 
divested. In requiring the 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 is 
typically sufficient to support the operation and expansion of the 
mobile wireless telecommunications services businesses being 
divested, enabling the buyer to be a viable competitor to the merged 
entity. Similarly, defendants are not required to divest CDMA 
equipment on the Mt. Stratton, Vermont tower or the CDMA, TDMA, and 
analog equipment on the Woodstock, Vermont tower, although they will 
be required to divest the GSM equipment located on these towers. The 
CDMA, TDMA and analog equipment located on these towers is not part 
of the GSM network being divested and therefore is not essential to 
the operations of the divested business. The Acquirer will receive 
the GSM network assets it will need to operate effectively in this 
area. Third, defendant Verizon may retain defendant RCC's 
Colchester, Vermont switches (an Ericsson AXE 810 and a Lucent SE). 
Verizon needs the Ericsson switch to provide service to RCC's GSM 
customers Verizon is acquiring in Maine and New Hampshire, where 
Verizon currently has only a CDMA network. It also needs the Lucent 
switch to support CDMA, TDMA, and analog services used predominantly 
by roaming customers in Massachusetts, New Hampshire, New York, and 
Vermont.
    A potential acquirer of the Divestiture Assets, which include 
RCC's GSM network, will either already have, or will be able to 
quickly obtain, GSM switching capability and will not need TDMA or 
analog switching to support the divested business.
    Additionally, in two instances, defendants may seek approval to 
retain certain spectrum in Vermont. First, in the Burlington MSA, 
the merged firm wants to retain RCC's PCS spectrum to insure that it 
has sufficient spectrum to support its wireless telecommunications 
services. Depending on the identity of the Acquirer, it may not need 
this additional PCS spectrum to be an effective competitor. Once an 
Acquirer is presented for approval, plaintiff United States, in its 
sole discretion upon consultation with Vermont, will determine 
whether the proposed Acquirer needs the PCS spectrum to insure it 
can operate a competitive business with Divestiture Assets its 
receives and whether allowing defendants to keep the cellular 
spectrum is consistent with the purposes of the Final Judgment. 
Second, for the portion of Vermont RSA 2 where Verizon does not own 
the cellular license, defendants are concerned that they will be 
unable to promptly roll out wireless broadband services to the 
citizens of Vermont if they cannot retain any of RCC's cellular 
spectrum in this area. Once an Acquirer is identified, plaintiff 
United States, in its sole discretion upon consultation with 
Vermont, will determine whether Verizon should be allowed substitute 
10 MHz of RCC's cellular spectrum for the 10 MHz of PCS spectrum it 
would otherwise retain.

A. Timing of Divestitures

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

B. Use of a Management Trustee

    The Preservation of Assets Stipulation and Order, filed 
simultaneously with this Competitive Impact Statement, ensures that, 
prior to divestiture, the Divestiture Assets remain an ongoing 
business concern. The Preservation of Assets Stipulation and Order 
is designed to ensure that the Divestiture Assets will be preserved 
and remain independent of defendants, so that competition is 
maintained during the pendency of the ordered divestiture.
    The Preservation of Assets Stipulation and Order provides for 
the appointment of a management trustee selected by plaintiff United 
States, and with respect to Divestiture Assets located in Vermont 
upon consultation with plaintiff Vermont, to oversee the Divestiture 
Assets. The appointment of a management trustee in this situation is 
required because the Divestiture Assets are not independent 
facilities that can be held separate and operated as stand-alone 
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. A management trustee will 
oversee the continuing relationship between defendants and these 
assets, to ensure that these assets are preserved and supported by 
defendants during this period, yet run independently. The management 
trustee will have the power to operate the Divestiture Assets in the 
ordinary course of business, so that they will remain independent 
and uninfluenced by defendants, and so that the Divestiture Assets 
are preserved and operated as 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; ensure defendants' compliance with 
the Preservation of Assets Stipulation and Order and the proposed 
Final Judgment; and maximize the value of the Divestiture Assets so 
as to permit expeditious divestiture in a manner consistent with the 
proposed Final Judgment.
    The Preservation of Assets Stipulation and Order provides that 
defendants will 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 efforts taken to accomplish the goals of 
the Preservation of Assets Stipulation and Order and the proposed 
Final Judgment and the extent to which defendants are fulfilling 
their responsibilities. Finally, the management trustee may become 
the divestiture trustee, pursuant to the provisions of Section V of 
the proposed Final Judgment.

C. Use of a Divestiture Trustee

    In the event that defendants do not accomplish the divestiture 
within the periods

[[Page 36568]]

prescribed in the proposed Final Judgment, the Final Judgment 
provides that the Court will appoint a trustee selected by plaintiff 
United States, and with respect to Divestiture Assets located in 
Vermont upon consultation with plaintiff Vermont, 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 
ensure that the divestiture trustee can promptly locate and divest 
to an acceptable purchaser, United States, in its sole discretion, 
and with respect to Divestiture Assets located in Vermont upon 
consultation with plaintiff Vermont, 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 other 
than the right to receive the proceeds of the sale. Defendants will 
also retain certain obligations to support to the Divestiture Assets 
and cooperate with the divestiture trustee in order to complete the 
divestiture.
    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 or purchasers no later than six (6) months 
after the assets are transferred to the divestiture trustee. At the 
end of six (6) months, if all divestitures have not been 
accomplished, the trustee and plaintiffs will make recommendations 
to the Court, which shall enter such orders as appropriate in order 
to carry out the purpose of the Final Judgment, 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 areas.

IV. Remedies Available to Potential Private Litigants

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

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States 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 the 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 sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding 
the proposed Final Judgment. Any person who wishes to comment should 
do so within sixty (60) days of the date of publication of this 
Competitive Impact Statement in the Federal Register or the last 
date of publication in a newspaper of the summary of this 
Competitive Impact Statement, which ever is later. 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

    Plaintiffs considered, as an alternative to the proposed Final 
Judgment, a full trial on the merits against defendants. Plaintiffs 
could have continued the litigation and sought preliminary and 
permanent injunctions against Verizon's acquisition of RCC. 
Plaintiffs are 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 areas identified in the 
Complaint.

VII. Standard of Review Under the APPA for the Proposed Final Judgment

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-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, in accordance with the statute as amended in 2004, is 
required to consider:

    A. The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    B. The impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

    15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory 
factors, the court's inquiry is necessarily a limited one as the 
government is entitled to ``broad discretion to settle with the 
defendant within the reach of the public interest.'' United States 
v. Microsoft Corp, 56 F.3d 1448, 1461 (DC. Cir. 1995); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1, 11 (D.D.C. 
2007) (assessing the public interest standard under the Tunney 
Act).\2\
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
Sec.  16(e) (2004), with 15 U.S.C. Sec.  16(e)(1) (2006); see also 
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 
amendments ``effected minimal changes'' to Tunney Act review).

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[[Page 36569]]

    As the United States Court of Appeals for the District of 
Columbia Circuit has held, under the APPA a court considers, among 
other things, the relationship between the remedy secured and the 
specific allegations set forth in the government's complaint, 
whether the decree is sufficiently clear, whether enforcement 
mechanisms are sufficient, and whether the decree may positively 
harm third parties. See Microsoft, 56 F.3d at 1458-62. 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; 
United States v Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001). 
---------------------------------------------------------------------------
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).\3\ In determining whether a proposed settlement is in the 
public interest, a district court ``must accord deference to the 
government's predictions about the efficacy of its remedies, and may 
not require that the remedies perfectly match the alleged 
violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17; see also 
Microsoft, 56 F.3d at 1461 (noting the need for courts to be 
``deferential to the government's predictions as to the effect of 
the proposed remedies''); United States v. Archer-Daniels-Midland 
Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court 
should grant due respect to the United States' prediction as to the 
effect of proposed remedies, its perception of the market structure, 
and its views of the nature of the case).
---------------------------------------------------------------------------

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

    Courts have great flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[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. Am. 
Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations 
omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713, 
716 (D. Mass. 1975)), affdsub 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). To meet this 
standard, the United States ``need only provide a factual basis for 
concluding that the settlements are reasonably adequate remedies for 
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    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. As this Court 
recently confirmed in SBC Communications, courts ``cannot look 
beyond the complaint in making the public interest determination 
unless the complaint is drafted so narrowly as to make a mockery of 
judicial power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, 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. 16(e)(2). The language wrote into 
the statute what the Congress that enacted the Tunney Act in 1974 
intended, as Senator Tunney then explained: ``[t]he court is nowhere 
compelled to go to trial or to engage in extended proceedings which 
might have the effect of vitiating the benefits of prompt and less 
costly settlement through the consent decree process.'' 119 Cong. 
Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the 
procedure for the public interest determination is left to the 
discretion of the court, with the recognition that the court's 
``scope of review remains sharply proscribed by precedent and the 
nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 
11.\4\
---------------------------------------------------------------------------

    \4\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) 11 
61,508, at 71,980 (W.D. Mo. 1977) (``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.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (''Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').
---------------------------------------------------------------------------

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: June 10, 2008.

 Respectfully submitted,

Hillary B. Burchuk (DC Bar No. 366755),

Lawrence M. Frankel (DC Bar No. 441532),

Jared A. Hughes,

Deborah Roy (DC Bar No. 452573),

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. E8-14545 Filed 6-26-08; 8:45 am]
BILLING CODE 4410-11-M