[Federal Register Volume 73, Number 176 (Wednesday, September 10, 2008)]
[Notices]
[Pages 52679-52689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20878]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Raycom Media, Inc.; 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, Hold 
Separate Stipulation and Order, and Competitive Impact Statement have 
been filed with the United States District Court for the District of 
Columbia in United States of America v. Raycom Media, Inc., Civil 
Action No. 1:08-cv-01510. On August 28, 2008, the United States filed a 
Complaint alleging that the acquisition by Raycom Media, Inc. of WWBT-
TV, a Richmond, Virginia, broadcast television station, from Lincoln 
Financial Media Company violates section 7 of the Clayton Act, 15 
U.S.C. 18. The proposed Final Judgment, filed the same time as the 
Complaint, requires Raycom to divest its Richmond, Virginia, broadcast 
television station WTVR-TV, along with certain related assets.
    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, 450 Fifth 
Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site (http://www.usdoj.gov/atr), and at the Office of the Clerk of the United States District

[[Page 52680]]

Court for the District of Columbia. Copies of these materials may be 
obtained from the Antitrust Division upon request and payment of the 
copying fee set by Department of Justice regulations.
    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 John R. Read, Chief, Litigation III, Antitrust Division, Department 
of Justice, Washington, DC 20530 (telephone: 202-307-0468).

Patricia Brink,
Deputy Director, Office of Operations.

United States District Court for the District of Columbia

United States of America, Department of Justice, Antitrust Division, 
450 5th Street, NW., Suite 4000, Washington, DC 20530, Plaintiff,

v.

Raycom Media, Inc., RSA Tower, 20th Floor, 201 Monroe Street, 
Montgomery, AL 36104, Defendant.

Civil Action No.: l:08-cv-01510
Assigned To: Urbina, Ricardo M.
Assign. Date: 08/28/2008
Description: Antitrust

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
obtain equitable relief against defendant Raycom Media, Inc. 
(``Raycom''), and complains and alleges as follows:
    1. The United States brings this suit to prevent Raycom from 
continuing to own two of the top four broadcast television stations in 
Richmond, Virginia. On April 1, 2008, Raycom consummated a transaction 
with Lincoln Financial Media Company (``Lincoln''), in which Raycom 
acquired WWBT-TV, the Richmond, Virginia, affiliate of the National 
Broadcasting Corporation (``NBC'') (the ``acquisition''). Raycom at 
that time already owned and continues to own WTVR-TV, the Richmond, 
Virginia, affiliate of CBS Broadcasting Inc. (``CBS''). In 2007, WWBT-
TV earned approximately 32 percent and WTVR-TV earned approximately 23 
percent of the broadcast television spot advertising revenues in the 
Richmond market.
    2. The acquisition eliminated substantial head-to-head competition 
between WWBT-TV and WTVR-TV. Unless remedied, the loss of WWBT-TV as an 
independent significant competitor will substantially lessen 
competition for the sale of broadcast television spot advertising in 
the Richmond market, in violation of Section 7 of the Clayton Act, as 
amended, 15 U.S.C. 18.

I. Jurisdiction and Venue

    3. This Complaint is filed and this action is instituted under 
section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and 
restrain Defendant from violating Section 7 of the Clayton Act, 15 
U.S.C. 18.
    4. Raycom sells broadcast television spot advertising to 
advertisers, a commercial activity that substantially affects and is in 
the flow of interstate commerce. This Court has jurisdiction over the 
subject matter of this action pursuant to sections 15 and 16 of the 
Clayton Act, 15 U.S.C. 25, 26, and 28 U.S.C. 1331, 1337.
    5. The Defendant has consented to personal jurisdiction and venue 
in this judicial district.

II. The Defendant

    6. Raycom Media, Inc. is a Delaware corporation with its 
headquarters in Montgomery, Alabama.
    7. Raycom is one of the country's largest television broadcasters. 
It currently owns and/or operates forty-six television stations in 
thirty-five markets and eighteen states. Raycom also distributes 
syndicated television programming and provides event management, 
information system support, and website design and hosting services.

III. Trade and Commerce

A. Relevant Product Market

    8. Broadcast television stations attract viewers through their 
programming and then sell access to their viewers to businesses and 
others that want to advertise their products and services. Broadcast 
television programming is transmitted by broadcast television stations, 
for free, over the air to television receivers. Broadcast television 
programming is also simultaneously retransmitted, as aired, by cable 
television systems (systems that deliver programming, for a fee, 
through wires into homes), and satellite television systems (systems 
that deliver programming over the air, for a fee, to home satellite 
receivers). Sales of ``spot'' advertising generate the majority of a 
broadcast television station's revenues. Broadcast television spot 
advertising is purchased by advertisers that want to target potential 
customers in specific localized geographic markets. It differs from 
network and syndicated television advertising, which is sold by the 
major television networks and producers of syndicated programs on a 
nationwide basis and broadcast in every market where the network or 
syndicated program is aired. Spot advertising is sold either directly 
by the station or through its national representative on a localized, 
market-by-market basis.
    9. Broadcast television spot advertising possesses attributes that 
collectively set it apart from advertising using other types of media. 
Television combines sight, sound, and motion, thereby creating a 
memorable and effective advertisement. Moreover, of all media, 
broadcast television spot advertising reaches the largest percentage of 
all potential customers in a particular desired target audience and is 
therefore especially effective in introducing and establishing the 
image of a product. A significant number of advertisers view broadcast 
television spot advertising as a necessary advertising medium for which 
there is no close substitute. Such customers would not switch to 
another advertising medium--such as radio, cable, internet, or 
newspaper--or some combination thereof, if broadcast television spot 
advertising prices increased by a small but significant amount.
    10. In the Richmond DMA, cable television advertising is not a 
meaningful substitute for broadcast television spot advertising because 
the viewership of cable television networks, even when the networks are 
combined and packaged together, is significantly smaller than the 
viewership of broadcast television stations and is more demographically 
homogeneous. Additionally, unlike broadcast television advertising, it 
is generally difficult for advertisers to place last minute 
advertisements on cable television. Other media, such as radio, 
newspapers, internet or billboards, are even less desirable substitutes 
for broadcast television advertising. Satellite television advertising 
is not a substitute because satellite television providers cannot limit 
the distribution of their advertisements to a particular DMA, and 
therefore do not sell advertising in competition with local broadcast 
television stations.
    11. Broadcast television stations generally can identify 
advertisers with strong broadcast television advertising preferences. 
Broadcast television stations negotiate prices individually with 
advertisers; consequently, broadcast television stations can charge 
different advertisers different prices. In the event of a price 
increase in broadcast television spot advertising,

[[Page 52681]]

some advertisers may shift some of their advertising to other media 
rather than absorb a price increase. However, the existence of such 
advertisers would not prevent broadcast television stations from 
profitably raising prices by a small but significant amount for a 
substantial number of advertisers that would not shift to other media 
or broadcast television stations.
    12. Accordingly, the sale of broadcast television spot advertising 
is a relevant product market within the meaning of section 7 of the 
Clayton Act.

B. Relevant Geographic Market

    13. A Designated Marketing Area (``DMA'') is a non-overlapping 
geographic area defined by A. C. Nielsen Company, a firm that surveys 
television viewers and furnishes television stations, advertisers, and 
advertising agencies with data to aid in evaluating audience size and 
composition. The Richmond DMA encompasses the city of Richmond. 
Virginia, and the surrounding counties in which stations within the 
Richmond DMA receive the largest share of viewers.
    14. Advertisers use broadcast television stations within the 
Richmond DMA to reach the largest possible number of viewers within the 
entire DMA. Advertising on television stations outside the Richmond DMA 
is not an effective alternative for these advertisers because such 
stations are not viewed by a significant number of potential customers 
within the Richmond DMA. Thus, if there were a small but significant 
price increase in broadcast television spot advertising prices within 
the Richmond DMA, an insufficient number of advertisers would switch 
their advertising time purchases to television stations outside the 
Richmond DMA to render the price increase unprofitable.
    15. Accordingly, the Richmond DMA is a relevant geographic market 
for the sale of broadcast television spot advertising within the 
meaning of section 7 of the Clayton Act.

C. Anticompetitive Effects

    16. Broadcast television stations compete for advertisers by 
providing advertisers access to their viewers. A station attracts 
viewers by selecting shows that appeal to the greatest number of 
viewers, and also tries to differentiate itself from other stations by 
appealing to specific demographic groups. Advertisers, in turn, are 
interested in using broadcast television spot advertising to reach a 
large audience, as well as to reach a high proportion of the type of 
viewers that are most likely to buy their products.
    17. Broadcast station ownership in the Richmond DMA is highly 
concentrated. Unremedied, Raycom's acquisition of WWBT-TV would give it 
control of two of the top four broadcast stations in the Richmond DMA 
and sales of over 50 percent of the total broadcast television spot 
advertising revenues in the Richmond DMA. Using a measure of 
concentration called the Herfindahl-F-lirschnian Index (``HHI''), 
defined and explained in Appendix A, combining the ownership of WWBT-TV 
and WTVR-TV substantially increases the HHI from approximately 2400 to 
approximately 3800, well above the 1800 threshold at which the Division 
normally considers a market to be highly concentrated.
    18. Prior to the transaction, WWBT-TV, the local NBC affiliate, and 
WTVR-TV, the local CBS affiliate, competed vigorously for advertisers 
because the demographic makeup of their viewers makes them close 
substitutes for a significant number of advertisers. The two stations 
competed head-to-head for a substantial number of advertisers seeking a 
desired audience, forcing the stations to offer better terms to win an 
advertiser's business. These advertisers would find it difficult or 
impossible to obtain competitive rates with the threat to ``buy 
around'' WWBT-TV and WTVR-TV, because they would be unable to as 
effectively reach their desired audiences without purchasing 
advertising from Raycom's stations. Thus, without divestiture of one of 
its Richmond stations, Raycom's acquisition of WWBT-TV substantially 
reduces competition for broadcast television spot advertising in the 
Richmond DMA.

D. Entry

    19. De novo entry into the Richmond DMA is unlikely, because the 
Federal Communications Commission (``FCC'') regulates entry through the 
issuance of licenses. These licenses are difficult to obtain because 
the availability of spectrum is limited, and the regulatory process 
associated with obtaining a license is lengthy. Even if a new signal 
became available, commercial success would come, at best, over a period 
of many years, because all major broadcast networks are already 
affiliated with a licensee in the Richmond DMA, the contracts last for 
many years, and the broadcast networks rarely switch licensees when the 
contracts expire. Thus, entry into the Richmond DMA broadcast 
television spot advertising market would not be timely, likely, or 
sufficient to deter Raycom from unilaterally raising prices.

IV. Violation Alleged

    20. Each and every allegation in paragraphs I through 19 of this 
Complaint is here realleged with the same force and effect as though 
said paragraphs were here set forth in full.
    21. The effect of Raycom's acquisition of WWBT-TV would be to 
substantially lessen competition in interstate trade and commerce, in 
violation of Section 7 of the Clayton Act.
    22. Raycom's acquisition of WWBT-TV will likely have the following 
effects, among others:
    a. Competition in the sale of broadcast television spot advertising 
in the Richmond DMA would be substantially lessened;
    b. Actual and potential competition between WWBT-TV and WTVR-TV in 
the sale of broadcast television spot advertising in the Richmond DMA 
would be eliminated; and
    c. The prices for broadcast television spot advertising in the 
Richmond DMA would likely increase.
    23. Unless restrained, the acquisition will violate Section 7 of 
the Clayton Act, as amended, 15 U.S.C. 18.

V. Requested Relief

    24. Plaintiff requests:
    a. That Raycom's acquisition of WWBT-TV be adjudged to violate 
Section 7 of the Clayton Act, as amended, 15 U.S.C. 18;
    b. That Raycom be ordered to divest WTVR-TV in accord with the 
attached Hold Separate Stipulation and Order and proposed Final 
Judgment;
    c. That a proposed Final Judgment giving effect to the divestiture 
be entered by the Court after compliance with the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16;
    d. That the United States be awarded the costs of this action; and
    e. That the United States be granted such other and further relief 
as the Court may deem just and proper.
Dated: August 28, 2008.
Respectfully submitted,

For Plaintiff United States:

Deborah A. Garza,
Acting Assistant Attorney General.

Ann Marie Blaylock (D.C. Bar No. 967825),
Trial Attorney, Litigation III Section, Antitrust Division, United 
States Department of Justice, 450 Fifth Street, NW., Suite 4000, 
Washington, DC 20530, (202) 616-5932, Facsimile: (202) 514-7308, 
[email protected].

Patricia A. Brink,
Deputy Director, Office of Operations.

John R. Read (D.C. Bar No. 419373),
Chief, Litigation III Section,

Nina B. Hale,
Assistant Chief, Litigation III Section.

[[Page 52682]]

Certificate of Service

    I hereby certify that on August 28, 2008, I caused a copy of the 
foregoing Complaint to be served on the defendant in this matter in the 
manner set forth below:
    By facsimile and U.S. mail:
Counsel for Defendant Raycom Media, Inc., 
Everett J. Bowman, Esq.,
Robinson Bradshaw & Hinson, 101 North Tryon St., Suite 1900, 
Charlotte, NC 28246, Telephone: (704) 377-8329, Facsimile: (704) 
373-3929, E-mail: [email protected].

Ann Marie Blaylock (D.C. Bar. No. 967825),
Litigation III Section, Antitrust Division, United States Department 
of Justice, 450 Fifth Street, NW., Suite 4000, Washington, DC 20530, 
(202) 616-5932, Facsimile: (202) 514-7308, ann.blaylockusdoj.gov.

Appendix A

Definition of HHI

    The term HH1 means the Herfindahl-Hirschman Index, a commonly 
accepted measure of market concentration. The HHI 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 2,600 
(30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). The HHI takes into account the 
relative size and distribution of the firms in a market. It approaches 
zero when a market is occupied by a large number of firms of relatively 
equal size and reaches its maximum of 10,000 when a market is 
controlled by a single firm. 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 are considered to 
be moderately concentrated, and markets in which the HHI is in excess 
of 1800 points are considered to be highly concentrated. Transactions 
that increase the HHI by more than 100 points in highly concentrated 
markets presumptively raise significant antitrust concerns under the 
Department of Justice and Federal Trade Commission 1992 Horizontal 
Merger Guidelines.

United States District Court for the District of Columbia

United States of America, Plaintiff,

v.

Raycom Media, Inc., Defendant.

Civil Action No.: l:08-cv-01510
Assigned To: Urbina, Ricardo M.
Assign. Date: 08/28/2008
Filed: 8/28/08.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on August 28, 2008, the United States and defendant, Raycom Media, Inc. 
(``Raycom''), 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, defendant agrees to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by defendant to assure 
that competition is not substantially lessened;
    And whereas, the United States requires defendant to make a certain 
divestiture for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendant has represented to the United States that 
the divestiture required below can and will be made and that it 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 defendant under section 7 of the Clayton 
Act, as amended (15 U.S.C. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' means the entity to which defendant divests the 
Divestiture Assets.
    B. ``Raycom'' means defendant Raycom Media, Inc., a Delaware 
limited liability company with its headquarters in Montgomery, Alabama, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    C. ``DMA'' means designated market area as defined by A.C. Nielsen 
Company based upon viewing patterns and used by the Investing In 
Television BIA Market Report 2007 (2nd edition). DMAs are ranked 
according to the number of households therein and are used by 
broadcasters, advertisers and advertising agencies to aid in evaluating 
television audience size and composition.
    D. ``Richmond market'' means the Richmond, Virginia, DMA broadcast 
television market.
    E. ``WTVR-TV'' means the broadcast television station WTVR-TV 
located in the Richmond market owned by defendant.
    F. ``Divestiture Assets'' means all of the assets, tangible or 
intangible, used in the operation of WTVR-TV, including, but not 
limited to, all real property (owned or leased), broadcast equipment, 
office equipment, office furniture, fixtures, materials, supplies, and 
other tangible property used in the operation of the station; all 
licenses, permits, authorizations, and applications therefor issued by 
the Federal Communications Commission (``FCC'') and other government 
agencies relating to the station; all contracts (including programming 
contracts and rights), agreements, network affiliation agreements, 
leases, and commitments and understandings of defendant relating to the 
operation of WTVR-TV; all trademarks, service marks, trade names, 
copyrights, patents, slogans, programming materials, and promotional 
materials relating to WTVR-TV; all customer lists, contracts, accounts, 
and credit records; and all logs and other records maintained by 
defendant in connection with WTVR-TV.

III. Applicability

    A. This Final Judgment applies to Raycom, as defined above, and all 
other persons in active concert or participation with Raycom 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, Defendant sells or otherwise disposes of all or substantially 
all of its assets or of lesser business units that include the 
Divestiture Assets, defendant shall require the purchaser to be bound 
by the provisions of this Final Judgment.

[[Page 52683]]

Defendant need not obtain such an agreement from the acquirer of the 
assets divested pursuant to this Final Judgment.

IV. Divestiture

    A. Defendant is ordered and directed, within thirty (30) calendar 
days after the filing of the Complaint in this matter or five (5) days 
after notice of the entry of this Final Judgment by the Court, 
whichever is later, to divest the Divestiture Assets in a manner 
consistent with this Final Judgment to an Acquirer acceptable to the 
United States in its sole discretion. The United States, in its sole 
discretion, 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 defendant or the trustee appointed pursuant to section V of 
this Final Judgment, if applications have been filed with the FCC 
within the period permitted for divestiture seeking approval to assign 
or transfer licenses to the Acquirer of the Divestiture Assets, but an 
order or other dispositive action by the FCC on such applications has 
not been issued before the end of the period permitted for divestiture, 
the period shall be extended with respect to divestiture of the 
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 divestiture ordered by this Final Judgment, 
defendant promptly shall make known, by usual and customary means, the 
availability of the Divestiture Assets. Defendant 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. Defendant 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 
privileges or work-product doctrine. Defendant shall make available 
such information to the United States at the same time that such 
information is made available to any other person.
    C. Defendant shall provide the Acquirer and the United States 
information relating to the personnel involved in the operation of the 
Divestiture Assets to enable the Acquirer to make offers of employment. 
Defendant will not interfere with any negotiations by the Acquirer to 
employ any defendant employee whose primary responsibility is the 
operation of the Divestiture Assets.
    D. Defendant shall permit prospective Acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
of the physical facilities of the business to be divested; access to 
any and all environmental, zoning, and other permit documents and 
information; and access to any and all financial, operational, or other 
documents and information customarily provided as part of a due 
diligence process.
    E. Defendant shall warrant to the Acquirer that each asset will be 
operational on the date of sale.
    F. Defendant shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets.
    G. Defendant shall warrant to the Acquirer that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset, and that following the sale 
of the Divestiture Assets, defendant will not undertake, directly or 
indirectly, any challenges to the environmental, zoning or other 
permits relating to the operation of the Divestiture Assets.
    H. Unless the United States otherwise consents in writing, the 
divestiture pursuant to section IV, or by 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 the 
United States, in its sole discretion, that the Divestiture Assets can 
and will be used by the Acquirer as part of a viable, ongoing 
commercial broadcast television business. Divestiture of the 
Divestiture Assets must be made to a single Acquirer that can 
demonstrate to the sole satisfaction of the United States that the 
Divestiture Assets will remain viable and the divestiture of such 
assets will remedy the competitive harm alleged in the Complaint. The 
divestiture, whether pursuant to section IV or section V of this Final 
Judgment,
    (1) Shall be made to an Acquirer that, in the United States sole 
judgment, has the intent and capability (including the necessary 
managerial, technical, operational, and financial capability) of 
competing effectively in the commercial broadcast television business 
in the Richmond market; and
    (2) Shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement(s) between 
an Acquirer and defendant gives them the ability unreasonably to raise 
the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise 
to interfere in the ability of the Acquirer to compete effectively.

V. Appointment of Trustee

    A. If defendant has not divested the Divestiture Assets within the 
time period specified in section IV(A), defendant shall notify the 
United States of that fact in writing. Upon application of the United 
States, the Court shall appoint a trustee selected by the United States 
and approved by the Court to effect the divestiture of the Divestiture 
Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. The 
trustee shall have the power and authority to accomplish the 
divestiture to an Acquirer acceptable to the United States at such 
price and on such terms as are then obtainable upon reasonable effort 
by the 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(D) of this Final Judgment, the 
trustee may hire at the cost and expense of defendant any investment 
bankers, attorneys, or other agents, who shall be solely accountable to 
the trustee, reasonably necessary in the trustee's judgment to assist 
in the divestiture.
    C. Defendant shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance. Any such objections by 
defendant must be conveyed in writing to the United States and the 
trustee within ten (10) calendar days after the trustee has provided 
the notice required under section VI.
    D. The trustee shall serve at the cost and expense of defendant, on 
such terms and conditions as the United States approves, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting. including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendant and the trust shall then be 
terminated. The compensation of the

[[Page 52684]]

trustee and any professionals and agents retained by the trustee shall 
be reasonable in light of the value of the Divestiture Assets and based 
on a fee arrangement providing the 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.
    E. Defendant shall use its best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities related to the Divestiture Assets and defendant 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information. Defendant shall take no action to interfere 
with or to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court, setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the Divestiture Assets, and 
shall describe in detail each contact with any such person. The trustee 
shall maintain full records of all efforts made to divest the 
Divestiture Assets.
    G. If the trustee has not accomplished the divestiture ordered 
under this Final Judgment within six (6) months after its appointment, 
the trustee shall promptly file with the Court a report setting forth: 
(1) The trustee's efforts to accomplish the required divestiture, (2) 
the reasons, in the trustee's judgment. why the required divestiture 
has not been accomplished, and (3) the trustee's recommendations. To 
the extent such reports contain information that the trustee deems 
confidential, such report shall not be filed in the public docket of 
the Court. The trustee shall at the same time furnish such report to 
the United States, which 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 trustee's appointment 
by a period requested by the United States.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendant or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by section IV or 
V of this Final Judgment. If the trustee is responsible, it shall 
similarly notify defendant. 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 by the United 
States of such notice, the United States may request from defendant, 
the proposed Acquirer(s), any other third party, or the trustee if 
applicable, additional information concerning the proposed divestiture, 
the proposed Acquirer(s) and any other potential Acquirer. Defendant 
and the 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 the United States has been 
provided the additional information requested from defendant, the 
proposed Acquirer(s), any third party and the trustee, whichever is 
later, the United States shall provide written notice to defendant and 
the trustee, if there is one, stating whether or not it objects to the 
proposed divestiture. If the United States provides written notice that 
it does not object, the divestiture may be consummated, subject only to 
defendant's limited right to object to the sale under section V(C) of 
this Final Judgment. Without prior written notice that the United 
States does not object to the proposed Acquirer or upon objection by 
the United States, a divestiture proposed under section IV or section V 
shall not be consummated. Upon objection by defendant under section 
V(C), a divestiture proposed under Section V shall not be consummated 
unless approved by the Court.

VII. Financing

    Defendant shall not finance all or any part of any purchase made 
pursuant to section IV or V of this Final Judgment.

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, defendant shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendant shall take no action that would jeopardize the divestiture 
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 divestiture has been completed under section IV or V, defendant 
shall deliver to the United States 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 defendant has 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 the United States to information provided by defendant, 
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, defendant shall deliver to the United States an 
affidavit that describes in reasonable detail all actions defendant has 
taken and all steps defendant has implemented on an ongoing basis to 
comply with section VIII of this Final Judgment. Defendant shall 
deliver to the United States an affidavit describing any changes to the 
efforts and actions outlined in its earlier affidavits filed pursuant 
to this section within fifteen (15) calendar days after the change is 
implemented.
    C. Defendant shall keep all records of all efforts made to preserve 
and divest the Divestiture Assets until one year

[[Page 52685]]

after such divestiture has been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the 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 defendant, be 
permitted:
    (1) Access during defendant's office hours to inspect and copy, or 
at the option of the United States, to require defendant to provide 
hard copy or electronic copies of, all books, ledgers, accounts, 
records, data, and documents in the possession, custody, or control of 
defendant, relating to any matters contained in this Final Judgment; 
and
    (2) To interview, either informally or on the record, defendant's 
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 defendant.
    B. Upon the written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
defendant 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 the United States to any person other 
than an authorized representative of the executive branch of the United 
States or, pursuant to a customary protective order or waiver of 
confidentiality by defendant, the FCC, except in the course of legal 
proceedings to which the United States is a party (including grand jury 
proceedings), or for the purpose of securing compliance with this Final 
Judgment, or as otherwise required by law.
    D. If at the time information or documents are furnished by 
defendant to the United States, defendant represents and identifies in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and defendant marks each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give defendant ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendant may not reacquire any part of the Divestiture Assets or 
enter into any local marketing agreement, joint sales agreement, or any 
other cooperative selling arrangement with respect to 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.

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 the United States' 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 the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16:

United States District Judge

United States District Court for the District of Columbia

United States of America, Department of Justice, Antitrust Division, 
450 5th Street, NW., Suite 4000, Washington, DC 20530, Plaintiff,

v.

Raycom Media, Inc., RSA Tower, 20th Floor, 201 Monroe Street, 
Montgomery, AL 36104, Defendant.

Civil Action No.: l:08-cv-01510
Assigned To: Urbina, Ricardo M.
Assign. Date: 08/28/2008
Description: Antitrust

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    Defendant Raycom Media, Inc. (``Raycom'') and Lincoln Financial 
Media Company \1\ (``Lincoln'') entered into a Stock Purchase 
Agreement, dated November 12, 2007, pursuant to which Raycom acquired 
three broadcast television stations from Lincoln. The transaction 
closed on April 1, 2008. The United States filed a cMl antitrust 
Complaint on August 28, 2008, alleging that Raycom's acquisition of one 
of the stations, WWBT-TV, the Richmond, Virginia, affiliate of the 
National Broadcasting Corporation, when it already owned WTVR-TV, the 
Richmond, Virginia, affiliate of CBS Broadcasting Inc., violates 
section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint alleges that 
Raycom, as a result of the acquisition, owns two of the top four 
broadcast television stations in the Richmond market accounting for 
more than half of all broadcast television spot advertising revenue in 
2008. Raycom's continued ownership of both WWBT-TV and WTVR-TV would 
substantially lessen competition in the sale of broadcast television 
spot advertising in Richmond, Virginia, and the surrounding area.
---------------------------------------------------------------------------

    \1\ Lincoln is not a party to this lawsuit.
---------------------------------------------------------------------------

    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate'') and 
proposed Final Judgment, which are designed to

[[Page 52686]]

eliminate the anticompetitive effects of Raycom's common ownership of 
WWBT-TV and WTVR-TV. Under the proposed Final Judgment, which is 
explained more fully below, Raycom agrees to divest WTVR-TV. Under the 
terms of the Hold Separate Stipulation and Order, Raycom agrees to take 
certain steps during the pendency of the proposed divestiture to ensure 
that WTVR-TV is operated as a competitively independent, economically 
viable and ongoing business concern, that will remain independent and 
uninfluenced by Raycom's other broadcast operations, and that 
competition is maintained between WWBT-TV and WTVR-TV.
    The United States and Defendant 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.

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

A. The Defendant and the Transaction

    Defendant Raycom is a Delaware limited liability company with its 
headquarters in Montgomery, Alabama. Raycom, through its subsidiaries, 
owns approximately 46 television stations in the United States, 
including WWBT-TV and WTVR-TV in Richmond, Virginia.

B. The Transaction

    On November 12, 2007, Raycom agreed to acquire three broadcast 
television stations in three different markets from entities controlled 
by Lincoln. In one of those markets--Richmond, Virginia--the 
acquisition would result in Raycom owning WWBT-TV and WTVR-TV, two of 
the top four broadcast television stations that combined account for 
more than 50 percent of the broadcast television spot advertising 
revenues in that market. Although a Federal Communications Commission 
(``FCC'') rule against duopolies in local markets (``the FCC duopoly 
rule'') prohibited Raycom from owning both stations, prior to closing 
Raycom planned to seek a temporary waiver of the FCC duopoly rule to 
allow the transaction to be completed, and then to divest WTVR-TV to 
cure the overlap.
    On January 9, 2008, the United States, Raycom, and Lincoln entered 
into an agreement by which: The United States agreed to defer filing 
suit to enjoin the transaction for a period of ninety days following 
the closing of the Raycom-Lincoln transaction, during which period 
Raycom was to sell WTVR-TV; Raycom agreed that the United States could 
tile the executed Hold Separate Stipulation and Order and a proposed 
Final Judgment compelling the sale of WTVR-TV in the event that Raycom 
did not sell WTVR-TV within that period; and Raycom agreed to comply by 
the terms of the Hold Separate Stipulation and Order requiring Raycom 
to preserve and hold separate WTVR-TV, so that competition in the 
Richmond broadcast television advertising market would be maintained.
    Raycom closed its transaction with Lincoln on April 1, 2008, but 
the agreed-upon divestiture has not yet taken place. Therefore, in 
accordance with the terms of the January 9, 2008 agreement, the United 
States instituted this action.

C. The Competitive Effects of the Transaction

1. The Relevant Product and Geographic Markets
    The Complaint alleges that the provision of broadcast television 
spot advertising in the Richmond Designated Marketing Area (``Richmond 
DMA'') constitutes a line of commerce and section of the country, or 
relevant market, for antitrust purposes. Broadcast television spot 
advertising comprises the majority of a broadcast television station's 
revenues. It is purchased by advertisers who want to target potential 
customers in specific geographic markets and differs from network and 
syndicated television advertising, both of which are sold by the major 
television networks and producers of syndicated programs on a 
nationwide basis and broadcast in every market where the network or 
syndicated program is aired. Spot advertising is sold either directly 
by the station, or through its national representative, on a localized, 
market-by-market basis.
    The Complaint alleges that broadcast television spot advertising 
possesses specific characteristics, such as its combination of sight, 
sound, and motion, and broad reach, that collectively differentiate it 
from other media. Broadcast television stations are able to identify 
advertisers with strong preferences for broadcast television 
advertising, and can charge different advertisers different prices. The 
Complaint alleges that if broadcast television stations were to raise 
the price of spot advertising, some advertisers might shift some of 
their advertising to other media rather than absorb a price increase. 
However, the existence of such advertisers would not prevent broadcast 
television stations from profitably raising prices by a small but 
significant amount for a substantial number of advertisers that would 
not shift.
    The Complaint alleges that the Richmond. Virginia, DMA is the 
relevant geographic market. The Richmond DMA \2\ encompasses the city 
of Richmond, Virginia, and the surrounding counties in which stations 
within the Richmond DMA receive the largest share of viewers. 
Advertisers use broadcast television stations within the Richmond DMA 
to reach the largest possible number of viewers within the entire DMA. 
Advertising on television stations outside the Richmond DMA is not an 
effective alternative for advertisers wishing to target viewers within 
the Richmond DMA, because such stations are not viewed by a significant 
number of potential customers within the Richmond DMA.
---------------------------------------------------------------------------

    \2\ A Designated Marketing Area (``DMA'') is a non-overlapping 
geographic unit defined by A.C. Nielsen Company, a firm that surveys 
television viewers and furnishes television stations, advertisers, 
and advertising agencies in a particular area with data to aid in 
evaluating audience size and composition. A DMA is used to identify 
broadcast television stations whose broadcast signals reach a 
specific area and attract the most viewers.
---------------------------------------------------------------------------

2. Anticompetitive Effects of the Transaction
    Raycom's acquisition of WWBT-TV substantially lessens competition 
in the provision of broadcast television spot advertising time in the 
Richmond DMA. Raycom's ownership of WWBT-TV and WTVR-TV gives it 
control over two of the top four broadcast stations in the Richmond DMA 
and over 50 percent of the broadcast television spot advertising 
revenue in the Richmond DMA. Combining the ownership of WWBT-TV and 
WTVR-TV substantially increases the already high concentration in the 
market, which will reduce competition and lead to higher prices.
    Advertisers select broadcast television stations to reach a large 
percentage of their target audience based upon a number of factors, 
including the size and demographic characteristics of the station's 
audience. Many advertisers seek to reach a large percentage of their 
target audience by selecting those broadcast television stations whose 
audience best correlates to their target audience. If multiple 
broadcast television stations efficiently reach that target audience, 
advertisers benefit from the competition among such stations to offer 
better prices or services. Today, WWBT-TV and WTVR-TV compete

[[Page 52687]]

head-to-head to reach the same audiences and, for many advertisers that 
buy broadcast television time in Richmond, they are close substitutes 
for each other based on their specific audience characteristics. 
Because advertisers seeking to reach a target audience would have fewer 
and more expensive alternatives to the merged entity as a result of the 
merger, the acquisition would give Raycom the ability to raise its 
rates.
    The Complaint alleges that new entry into the Richmond broadcast 
television spot advertising market is highly unlikely in response to a 
Raycom price increase. The FCC regulates entry through the issuance of 
licenses. These licenses are difficult to obtain because the 
availability of spectrum is limited, and the regulatory process 
associated with obtaining a license is lengthy. Even if a new signal 
became available, commercial success would come, at best, over a period 
of many years, because all major broadcast networks are already 
affiliated with a station in the Richmond-DMA, the contracts last for 
many years, and the broadcast networks rarely switch licensees when the 
contracts expire. Thus, entry into the Richmond DMA broadcast 
television spot advertising market would not be timely, likely, or 
sufficient to deter Raycom from unilaterally raising prices.
    For these reasons, the Division concluded that Raycoms acquisition 
of WWBT-TV, when it already owned WTVR-TV, would substantially lessen 
competition in the sale of broadcast television spot advertising time 
in the Richmond DMA, eliminate actual competition between WWBT-TV and 
WTVR-TV, and result in increased rates for broadcast television spot 
advertising time in the Richmond DMA, all in violation of section 7 of 
the Clayton Act.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment requires that Defendant divest all of 
the tangible and intangible assets used in the operation of WTVR-TV, 
defined in the Final Judgment as the ``Divestiture Assets.'' The sale 
of the Divestiture Assets according to the terms of the proposed Final 
Judgment will eliminate the anticompetitive effects of the acquisition 
in the Richmond market for broadcast television spot advertising time. 
The Divestiture Assets must be divested in such a way as to satisfy the 
United States in its sole discretion that WTVR-TV can and will be 
operated by the acquirer as a viable, ongoing commercial broadcast 
television business; and Defendant must take all reasonable steps 
necessary to accomplish the divestiture quickly and shall cooperate 
with prospective acquirers. The divestiture will establish a new, 
independent, and economically viable competitor.
    Unless the United States grants an extension of time, Raycom must 
divest WTVR-TV either within thirty (30) calendar days after the 
Complaint has been filed or within five (5) days after notice of entry 
of the Final Judgment, whichever is later. The United States may, in 
its sole discretion, grant one or more extensions of time, which in 
total may not exceed sixty (60) calendar days. Until the divestiture 
takes place, Raycom will maintain WTVR-TV as an independent competitor 
to the other broadcast television stations in the Richmond DMA, 
including WWBT-TV. WTVR-TV must be divested in such a way as to satisfy 
the United States in its sole discretion that it can and will be 
operated by the purchaser as a viable, ongoing business that can 
compete effectively in the relevant market. Raycom must take all 
reasonable steps necessary to accomplish the divestiture quickly and 
shall cooperate with prospective purchasers.
    If Raycom fails to divest WTVR-TV within the time periods specified 
in the Final Judgment, the Court, upon application of the United 
States, shall appoint a trustee nominated by the United States and 
approved by the Court to effect the divestiture. If a trustee is 
appointed, the proposed Final Judgment provides that Raycom will pay 
all costs and expenses of the trustee and any professionals and agents 
retained by the trustee. The compensation paid to the trustee and any 
persons retained by the trustee shall be both reasonable in light of 
the value of WTVR-TV and based on a fee arrangement providing the 
trustee with an incentive based on the price and terms of the 
divestiture and the speed with which it is accomplished. After 
appointment, the trustee will file monthly reports with the United 
States and the Court, setting forth the trustee's efforts to accomplish 
the divestiture ordered under the proposed Final Judgment. If the 
trustee has not accomplished the divestiture within six (6) months 
after its appointment, the trustee shall promptly file with the Court a 
report setting forth (1) the trustee's efforts to accomplish the 
required divestiture, (2) the reasons, in the trustee's judgment, why 
the required divestiture has not been accomplished, and (3) the 
trustee's recommendations. At the same time, the trustee will furnish 
such report to the United States, who will have the right to make 
additional recommendations consistent with the purpose of the trust. In 
such a situation, the Court may enter any order(s) it deems appropriate 
to carry out the purpose of the Final Judgment.
    The proposed Final Judgment requires that Raycom maintain and 
operate WTVR-TV separate and apart from Raycom's other operations, 
pending divestiture. The Final Judgment also contains provisions to 
ensure that WTVR-TV will be preserved, so that after divestiture it 
will remain a viable, aggressive competitor.

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, whichever is later. All comments received during this period 
will be considered by the United States 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 the United States will be filed with the Court and 
published in the Federal Register.

[[Page 52688]]

    Written comments should be submitted to: John Read, Chief, 
Litigation III Section, Antitrust Division, United States Department of 
Justice, 450 5th St., NW., Suite 4000, 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

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against Defendant. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions against Defendant's acquisition 
of WWBT-TV. The United States is satisfied, however, that the 
divestiture of assets described in the proposed Final Judgment will 
preserve competition for the provision of broadcast television spot 
advertising in the relevant market identified by the United States. 
Thus, the proposed Final Judgment would achieve all or substantially 
all of the relief the United States would have obtained through 
litigation, but avoids the time, expense, and uncertainty of a full 
trial on the merits of 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)(l)(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 reaches of the public interest.'' United States v. 
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally 
United States SBC Commc'ns, Inc., 489 F. Supp. 2d I (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act).\3\
---------------------------------------------------------------------------

    \3\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for 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. 
16(e) (2004), with 15 U.S.C. 16(e)(l) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

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

    \4\ 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 greater 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)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy). 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

[[Page 52689]]

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 that ``[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 Congress intended when it enacted the Tunney Act in 1974, as 
Senator Tunney 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.\5\
---------------------------------------------------------------------------

    \5\ See 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) ] 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.'').
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VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.
Dated: August 28, 2008.

Respectfully submitted,
Ann Marie Blaylock (D.C. Bar No. 967825),
Trial Attorney, United States Department of Justice, Antitrust 
Division, Liberty Square Building, 450 Fifth Street, NW., Suite 
4000, Washington, DC 20530, (202) 616-5932, Facsimile: (202) 514-
7308, [email protected].

Certificate of Service

    I hereby certify that on August 28, 2008, I caused a copy of the 
foregoing Competitive Impact Statement to be served on the defendant in 
this matter in the manner set forth below:

    By facsimile and U.S. mail:

Counsel for Defendant Raycom Media, Inc.

Everett J. Bowman, Esq.,
Robinson Bradshaw & Hinson, 101 North Tryon St., Suite 1900, 
Charlotte, NC 28246, Telephone: (704) 377-8329, Facsimile: (704) 
373-3929, E-mail: [email protected].

Ann Marie Blaylock (D.C. Bar. No. 967825),
Litigation III Section, Antitrust Division, United States Department 
of Justice, 450 Fifth Street, NW., Suite 4000, Washington, DC 20530, 
(202) 616-5932, Facsimile: (202) 514-7308, [email protected].
[FR Doc. E8-20878 Filed 9-9-08; 8:45 am]
BILLING CODE 4410-11-M