[Federal Register Volume 80, Number 140 (Wednesday, July 22, 2015)]
[Notices]
[Pages 43462-43473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17992]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Entercom Communications Corp. and Lincoln 
Financial Media Company; 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. Entercom Communications 
Corp. and Lincoln Financial Media Company, Civil Action No. Case 1:15-
cv-01119-RC. On July 14, 2015, the United States filed a Complaint 
alleging that Entercom Communications Corp.'s acquisition of Lincoln 
Financial Media Company would likely substantially lessen competition 
in the sale of advertising on English-language broadcast radio stations 
in the Denver, Colorado metro area, in violation of Section 7 of the 
Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed on the 
same day as the Complaint, resolves the case by requiring Entercom to 
divest certain broadcast radio stations in Denver, Colorado. A 
Competitive Impact Statement filed by the United States describes the 
Complaint, the proposed Final Judgment, and the industry.
    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 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 Department of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Department of Justice, 
Antitrust Division's internet Web site, filed with the Court and, under 
certain circumstances, published in the Federal Register. Comments 
should be directed to David Kully, Chief, Litigation III Section, 
Antitrust Division, Department of Justice, 450 Fifth Street NW., Suite 
4000, Washington, DC 20530 (telephone: 202-305-9969).

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the District of Columbia

    United States of America, United States Department of Justice, 
Antitrust Division, Litigation III Section, 450 Fifth Street NW., 
4th Floor, Washington, DC 20530, Plaintiff, v. Entercom 
Communications Corp., 401 E. City Avenue, Suite 809, Bala Cynwyd, 
Pennsylvania 19004, and Lincoln Financial Media Company, 3340 
Peachtree Rd. NE., Suite 1430, Atlanta, Georgia 30326, Defendants

CASE NO.: 1:15-cv-01119-RC
JUDGE: Rudolph Contreras
FILED: 07/14/15

COMPLAINT

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
enjoin the proposed acquisition of Lincoln Financial Media Company 
(``Lincoln'') by Entercom Communications Corp. (``Entercom''), and to 
obtain other equitable relief. The acquisition likely would 
substantially lessen competition for the sale of radio advertising to 
advertisers targeting English-language listeners in the Denver, 
Colorado Metro Survey Area (``Denver MSA''), in violation of Section 7 
of the Clayton Act, 15 U.S.C. 18. The United States alleges as follows:

I. NATURE OF THE ACTION

    1. By agreement, as amended and restated, dated December 7, 2014, 
between Lincoln National Life Insurance Company and Entercom, Entercom 
agreed to acquire Lincoln in a cash-and-stock deal for $105 million. 
Lincoln National Life Insurance Company is a subsidiary of Lincoln 
National Corporation.
    2. Entercom and Lincoln own and operate broadcast radio stations in 
various locations throughout the United States, including a number of 
stations in Denver, Colorado. Entercom's and Lincoln's broadcast radio 
stations compete head-to-head for the business of local and national 
companies that seek to advertise on English-language broadcast radio 
stations in Denver, Colorado.
    3. As alleged in greater detail below, the proposed acquisition 
would eliminate this substantial head-to-head competition in the Denver 
MSA and result in advertisers paying higher prices for radio 
advertising time in that market. Therefore, the proposed acquisition 
violates Section 7 of the Clayton Act, 15 U.S.C. 18, and should be 
enjoined.

II. JURISDICTION, VENUE, AND COMMERCE

    4. The United States brings this action pursuant to Section 15 of 
the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain 
Entercom and Lincoln from violating Section 7 of the Clayton Act, 15 
U.S.C. 18. The Court has subject-matter jurisdiction over this action 
pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 
1331, 1337(a), and 1345.

[[Page 43463]]

    5. Entercom and Lincoln are engaged in interstate commerce and in 
activities substantially affecting interstate commerce. They own and 
operate broadcast radio stations in various locations throughout the 
United States and sell radio advertising for those stations. Their 
radio advertising sales have had a substantial effect upon interstate 
commerce.
    6. Entercom transacts business and is found in the District of 
Columbia and has also consented to venue in this District. Lincoln has 
consented to venue in this District. Venue is therefore proper in this 
District for both Entercom and Lincoln under Section 12 of the Clayton 
Act, 15 U.S.C. 22. Entercom and Lincoln have also consented to personal 
jurisdiction in this District.

III. THE DEFENDANTS

    7. Entercom, organized under the laws of Pennsylvania, with 
headquarters in Bala Cynwyd, Pennsylvania, is one of the largest radio 
broadcast companies in the United States. It has a nationwide portfolio 
of over 100 stations in 23 metropolitan areas. In 2014, Entercom 
reported net revenues of approximately $380 million.
    8. Lincoln is an indirect, wholly owned subsidiary of Lincoln 
National Corporation. Lincoln is organized under the laws of North 
Carolina, with headquarters in Atlanta, Georgia. Lincoln owns and 
operates 15 broadcast radio stations in four metropolitan areas. In 
2014, Lincoln had net revenues of approximately $69 million.

IV. RELEVANT MARKET

    9. The relevant market for Section 7 of the Clayton Act is the sale 
of radio advertising time to advertisers targeting English-language 
listeners in the Denver MSA.
    10. Entercom and Lincoln sell radio advertising time to local and 
national advertisers that target English-language listeners in the 
Denver MSA. An MSA is a geographical unit for which Nielsen Audio, a 
company that surveys radio listeners, furnishes radio stations, 
advertisers, and advertising agencies in a particular area with data to 
aid in evaluating radio audiences. MSAs are widely accepted by radio 
stations, advertisers, and advertising agencies as the standard 
geographic area to use in evaluating radio audience size and 
demographic composition. A radio station's advertising rates typically 
are based on the station's ability, relative to competing radio 
stations, to attract listening audiences that have certain demographic 
characteristics that advertisers want to reach.
    11. Entercom and Lincoln radio stations in the Denver MSA generate 
almost all of their revenues by selling advertising time to local and 
national advertisers who want to reach listeners in the Denver MSA. 
Advertising placed on radio stations in an MSA is aimed at reaching 
listening audiences in that MSA, and radio stations outside that MSA do 
not provide effective access to these audiences.
    12. Many local and national advertisers purchase radio advertising 
time because they find such advertising valuable, either by itself or 
as a complement to advertising on other media platforms. Reasons for 
this include the fact that radio advertising may be more cost-efficient 
and effective than other media at reaching the advertiser's target 
audience (individuals most likely to purchase the advertiser's products 
or services). In addition, radio stations offer certain services or 
promotional opportunities to advertisers that advertisers cannot obtain 
as effectively using other media.
    13. Many local and national advertisers also consider English-
language radio to be particularly effective or necessary to reach their 
desired customers. These advertisers consider English-language radio, 
either alone or as a complement to other media, to be the most 
effective way to reach their target audience, and do not consider other 
media, including non-English-language radio, such as Spanish-language 
radio, for example, to be a reasonable substitute.
    14. If there were a small but significant and non-transitory 
increase in the price (``SSNIP'') of radio advertising time on English-
language stations in the Denver MSA, advertisers would not reduce their 
purchases sufficiently to render the price increase unprofitable. 
Advertisers would not switch enough purchases of advertising time to 
radio stations outside the MSA, to other media, or to non-English-
language stations to render the price increase unprofitable.
    15. In addition, radio stations negotiate prices individually with 
advertisers; consequently, radio stations can charge different 
advertisers different prices. Radio stations generally can identify 
advertisers with strong preferences to advertise on radio in their 
MSAs. Because of this ability to price discriminate among customers, 
radio stations may charge higher prices to advertisers that view radio 
in their MSA as particularly effective for their needs, while 
maintaining lower prices for more price-sensitive advertisers. As a 
result, Entercom and Lincoln could profitably raise prices to those 
advertisers that view English-language radio targeting listeners in the 
Denver MSA as a necessary advertising medium.

V. LIKELY ANTICOMPETITIVE EFFECTS

    16. Radio station ownership in the Denver MSA is highly 
concentrated. Entercom's and Lincoln's combined advertising revenue 
shares exceed 37 percent for English-language broadcast radio stations 
in the Denver MSA.
    17. As articulated in the Horizontal Merger Guidelines issued by 
the Department of Justice and the Federal Trade Commission, the 
Herfindahl-Hirschman Index (``HHI'') is a measure of market 
concentration.\1\ Market concentration is often one useful indicator of 
the likely competitive effects of a merger. The more concentrated a 
market, and the more a transaction would increase concentration in a 
market, the more likely it is that a transaction would result in a 
meaningful reduction in competition harming consumers. Mergers 
resulting in highly concentrated markets (with an HHI in excess of 
2,500) that involve an increase in the HHI of more than 200 points are 
presumed to be likely to enhance market power under the merger 
guidelines.
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    \1\ See U.S. Dep't of Justice, Horizontal Merger Guidelines 
Sec.  5.3 (2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.html. 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). It approaches zero when a 
market is occupied by a large number of firms of relatively equal 
size and reaches a maximum of 10,000 points 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.
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    18. Concentration in the Denver MSA would increase significantly as 
a result of the proposed acquisition. The post-acquisition HHI in the 
Denver MSA would be over 3,500 for English-language broadcast radio 
stations. That HHI is well above the 2,500 threshold at which the 
Department normally considers a market to be highly concentrated. 
Entercom's proposed acquisition of Lincoln would result in a 
substantial increase in the HHI set forth above in excess of the 200 
points presumed to be anticompetitive under the merger guidelines.
    19. Advertisers that use radio to reach their target audiences 
select radio stations on which to advertise based upon a number of 
factors including, among others, the size and demographic composition 
of a station's audience, and the geographic reach of a station's

[[Page 43464]]

broadcast signal. Many advertisers seek to reach a large percentage of 
their target audiences by selecting those stations whose listening 
audience is highly correlated to their target audience. If a number of 
stations broadcasting in the same MSA efficiently reach a target 
audience, advertisers benefit from the competition among those stations 
to offer better prices and services.
    20. Entercom and Lincoln, each of which operates highly rated radio 
stations in the Denver MSA, are important competitors for English-
language listeners in the Denver MSA. Moreover, Entercom and Lincoln 
each have multiple stations in the Denver MSA that seek to appeal to 
and attract the same listening audiences. For many local and national 
advertisers buying radio advertising time in the Denver MSA, the 
Entercom and Lincoln stations are close substitutes for each other 
based upon their specific audience characteristics.
    21. During individual price negotiations between advertisers and 
radio stations, advertisers often provide the stations with information 
about their advertising needs, including their target audience and the 
desired frequency and timing of ads. Radio stations have the ability to 
charge advertisers differing rates based in part on the number and 
attractiveness of competitive radio stations that can meet a particular 
advertiser's specific target needs. During negotiations, advertisers 
that desire to reach a certain target audience and certain reach and 
frequency goals in the Denver MSA can gain more competitive rates by 
``playing off'' Entercom stations, individually and collectively, 
against Lincoln stations, individually and collectively. The proposed 
acquisition would end that competition.
    22. Post-acquisition, if Entercom raised prices or lowered services 
to those advertisers that buy advertising time on the Entercom and 
Lincoln stations in the Denver MSA, non-Entercom stations in that MSA, 
risking a significant loss of their existing audiences, would be 
unlikely to change their formats to attempt to attract the Entercom 
stations' audiences. Even if one or more non-Entercom stations changed 
their format, they would be unlikely to attract in a timely manner 
enough listeners to make a price increase or service reduction 
unprofitable for Entercom.
    23. The entry of new radio stations into the Denver MSA would not 
be timely, likely, or sufficient to deter the exercise of market power.
    24. The effect of the proposed acquisition of Lincoln by Entercom 
would be to lessen competition substantially in interstate trade and 
commerce in violation of Section 7 of the Clayton Act.

VII. VIOLATION ALLEGED

    25. The United States hereby repeats and realleges the allegations 
of paragraphs 1 through 23 as if fully set forth herein.
    26. Entercom's proposed acquisition of Lincoln would likely 
substantially lessen competition in interstate trade and commerce in 
violation of Section 7 of the Clayton Act, 15 U.S.C. Sec.  18, and 
would likely have the following effects, among others:
    a) competition in the sale of advertising time on English-language 
radio stations in the Denver MSA would be substantially lessened;
    b) actual and potential competition in the Denver MSA between 
Entercom and Lincoln in the sale of radio advertising time would be 
eliminated; and
    c) prices for advertising time on English-language radio stations 
in the Denver MSA would likely increase, and the quality of services 
would likely decline.

VI. REQUEST FOR RELIEF

    The United States requests:
    a) That the Court adjudge the proposed acquisition to violate 
Section 7 of the Clayton Act, 15 U.S.C. Sec.  18;
    b) That the Court permanently enjoin and restrain the Defendants 
from carrying out the proposed acquisition or from entering into or 
carrying out any other agreement, understanding, or plan by which 
Lincoln would be acquired by, acquire, or merge with Entercom;
    c) That the Court award the United States the costs of this action; 
and
    d) That the Court award such other relief to the United States as 
the Court may deem just and proper.

Dated: July 14, 2015

Respectfully submitted,

FOR PLAINTIFF UNITED STATES:

William J. Baer (DC Bar # 324723)
Assistant Attorney General for Antitrust

Renata B. Hesse (DC Bar # 466107)
Deputy Assistant Attorney General for Antitrust

Patricia A. Brink
Director of Civil Enforcement

David C. Kully (DC Bar # 448763)
Chief Litigation III Section

Mark Merva (DC Bar # 451743)
Attorney
Litigation III Section
Antitrust Division
U.S. Department of Justice,
450 Fifth Street, N.W., 4th Floor
Washington, DC 20530
Telephone: (202) 616-1398
Facsimile: (202) 514-7308
E-mail: [email protected]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. ENTERCOM COMMUNICATIONS 
CORP. and LINCOLN FINANCIAL MEDIA COMPANY, Defendants.
CASE NO.: 1:15-cv-01119-RC
JUDGE: Rudolph Contreras
FILED: 07/14/15

COMPETITIVE IMPACT STATEMENT

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. Sec.  16(b)-(h), plaintiff 
United States of America (``United States'') 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 Entercom Communications Corp. (``Entercom'') and Lincoln 
National Life Insurance Company, a subsidiary of Lincoln National 
Corporation, entered into a Purchase Agreement, as amended and 
restated, dated December 7, 2014, pursuant to which Entercom would 
acquire Defendant Lincoln Financial Media Company (``Lincoln'') for 
$105 million. Entercom's and Lincoln's broadcast radio stations compete 
head-to-head for the business of local and national companies that seek 
to advertise on English-language broadcast radio stations in the 
Denver, Colorado Metro Survey Area (``MSA'').
    The United States filed a civil antitrust Complaint on July 14, 
2015 seeking to enjoin the proposed acquisition. The Complaint alleges 
that the acquisition's likely effect would be to increase English-
language broadcast radio advertising prices in the Denver MSA in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
    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 eliminate the 
anticompetitive effects of the proposed acquisition. The proposed Final 
Judgment, which is explained more fully below, requires Defendants to 
divest the following broadcast radio stations (the ``Divestiture 
Stations'') to an Acquirer approved by the United States in a manner 
that preserves competition in the Denver MSA: KOSI FM, KKFN FM, and 
KYGO FM. These three broadcast radio stations are

[[Page 43465]]

located in Denver, Colorado. The Hold Separate requires Defendants to 
take certain steps to ensure that the Divestiture Stations are operated 
as competitively independent, economically viable and ongoing business 
concerns, uninfluenced by Entercom so that competition is maintained 
until the required divestitures occur.
    The United States 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.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION

A. The Defendants and the Proposed Acquisition

    Entercom is incorporated in Pennsylvania, with its headquarters in 
Bala Cynwyd, Pennsylvania. Entercom owns and operates a nationwide 
portfolio of over 100 broadcast radio stations in 23 metropolitan 
areas, including the Denver MSA.
    Lincoln is an indirect, wholly owned subsidiary of Lincoln National 
Corporation. Lincoln is organized under the laws of North Carolina, 
with headquarters in Atlanta, Georgia. Lincoln owns and operates 15 
broadcast radio stations in four metropolitan areas, including the 
Denver MSA.
    Pursuant to an agreement, as amended and restated, dated December 
7, 2014, between Lincoln National Life Insurance Company and Entercom, 
Entercom agreed to acquire Lincoln in a cash-and-stock deal for $105 
million. Lincoln National Life Insurance Company is a subsidiary of 
Lincoln National Corporation.
    Entercom and Lincoln compete head-to-head against one another for 
the business of local and national advertisers that seek to purchase 
radio advertising time that targets English-language listeners located 
in the Denver MSA. The proposed acquisition would eliminate that 
competition.

B. Anticompetitive Consequences of the Transaction

1. Broadcast Radio Advertising

    The Complaint alleges that the sale of broadcast radio advertising 
time to advertisers targeting English-language listeners located in the 
Denver MSA constitutes a relevant product market for analyzing this 
acquisition under Section 7 of the Clayton Act. Entercom and Lincoln 
sell radio advertising time to local and national advertisers that seek 
to target English-language listeners in the Denver MSA. An MSA is a 
geographical unit for which Nielson Audio, a company that surveys radio 
listeners, furnishes radio stations, advertisers, and advertising 
agencies in a particular area with data to aid in evaluating radio 
audiences. MSAs are widely accepted by radio stations, advertisers, and 
advertising agencies as the standard geographic area to use in 
evaluating radio audience size and demographic composition. A radio 
station's advertising rates typically are based on the station's 
ability, relative to competing radio stations, to attract listening 
audiences that have certain demographic characteristics that 
advertisers want to reach.
    Entercom and Lincoln broadcast radio stations in the Denver MSA 
generate almost all of their revenues by selling advertising time to 
local and national advertisers who want to reach listeners present in 
that MSA. Advertising placed on radio stations in an MSA is aimed at 
reaching listening audiences in that MSA, and radio stations outside 
that MSA do not provide effective access to these audiences.
    Many local and national advertisers purchase radio advertising time 
because they find such advertising valuable, either by itself or as a 
complement to advertising on other media platforms. For such 
advertisers, radio time (a) may be less expensive and more cost-
efficient than other media in reaching the advertiser's target audience 
(individuals most likely to purchase the advertiser's products or 
services); or (b) may offer promotional opportunities to advertisers 
that they cannot replicate as effectively using other media. For these 
and other reasons, many local and national advertisers who purchase 
radio advertising time view radio as a necessary advertising medium for 
them or as a necessary advertising complement to other media.
    Many local and national advertisers also consider English-language 
radio to be particularly effective or necessary to reach their desired 
customers. These advertisers consider English-language radio, either 
alone or as a complement to other media, to be the most effective way 
to reach their target audience, and do not consider other media, 
including non-English-language radio, such as Spanish-language radio, 
for example, to be a reasonable substitute.
    If there were a small but significant and non-transitory increase 
in the price (``SSNIP'') on radio advertising time on English-language 
stations in the Denver MSA, advertisers would not reduce their 
purchases sufficiently to render the price increase unprofitable. 
Advertisers would not switch enough purchases of advertising time to 
radio stations outside the MSA, to other media, or to non-English-
language stations to render the price increase unprofitable.
    In addition, radio stations negotiate prices individually with 
advertisers; consequently, radio stations can charge different 
advertisers different prices. Radio stations generally can identify 
advertisers with strong preferences to advertise on radio in their 
MSAs. Because of this ability to price discriminate among customers, 
radio stations may charge higher prices to advertisers that view radio 
in their MSA as particularly effective for their needs, while 
maintaining lower prices for more price-sensitive advertisers. As a 
result, Entercom and Lincoln could profitably raise prices to those 
advertisers that view English-language radio that targets listeners in 
the Denver MSA as a necessary advertising medium.

2. Harm to Competition in the Denver MSA

    The Complaint alleges that the proposed acquisition likely would 
lessen competition substantially in interstate trade and commerce, in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18, and likely 
would have the following effects, among others:
    a) competition in the sale of broadcast radio advertising on 
English-language radio stations in the Denver MSA would be lessened 
substantially;
    b) competition between Entercom broadcast radio stations and 
Lincoln broadcast radio stations in the sale of broadcast radio 
advertising in the Denver MSA would be eliminated; and
    c) the prices for advertising time on English-language broadcast 
radio stations in the Denver MSA likely would increase.
    The acquisition, by eliminating Lincoln as a separate competitor 
and combining its operations with Entercom's, would allow Entercom to 
increase its share of the broadcast radio advertising revenues in the 
Denver MSA. In the Denver MSA, combining the Entercom and Lincoln 
broadcast radio stations would give Entercom approximately 37 percent 
of advertising sales on English-language broadcast radio stations.
    Entercom's acquisition of Lincoln also would further concentrate an 
already highly concentrated broadcast radio market in the Denver MSA. 
Using the Herfindahl-Hirschman Index (``HHI''), a

[[Page 43466]]

standard measure of market concentration (defined and explained in 
Appendix A), the post-acquisition HHI in the Denver MSA would be over 
3,500 for English-language broadcast radio stations. Entercom's 
proposed acquisition of Lincoln would result in a substantial increase 
in the HHI set forth above in excess of the 200 points presumed likely 
to enhance market power under the Horizontal Merger Guidelines issued 
by the Department of Justice and Federal Trade Commission.
    Furthermore, the transaction combines stations and station groups 
that are close substitutes and vigorous head-to-head competitors for 
advertisers seeking to reach specific English-language audiences in the 
Denver MSA. Advertisers select radio stations to reach a large 
percentage of their target audience based upon a number of factors, 
including, inter alia, the size of the station's audience, the 
demographic characteristics of its audience, and the geographic reach 
of a station's broadcast signal. Many advertisers seek to reach a large 
percentage of their target listeners by selecting those stations whose 
audience best correlates to their target listeners. Entercom and 
Lincoln, each of which operates highly rated radio stations in the 
Denver MSA, are important competitors for English-language listeners in 
the Denver MSA. Moreover, Entercom and Lincoln have multiple stations 
in the Denver MSA that seek to appeal to and attract the same listening 
audiences. For many local and national advertisers buying time in the 
Denver MSA, the Entercom and Lincoln stations are close substitutes for 
each other based on their specific audience characteristics.
    During individual price negotiations between advertisers and radio 
stations, advertisers often provide the stations with information about 
their advertising needs, including their target audience and the 
desired frequency and timing of their advertisements. Radio stations 
have the ability to charge advertisers differing rates based in part on 
the number and attractiveness of competitive radio stations that can 
meet a particular advertiser's audience, reach, and frequency needs. 
During negotiations, advertisers that desire to reach a certain target 
audience and certain reach and frequency goals in the Denver MSA can 
gain more competitive rates by ``playing off'' Entercom stations, 
individually and collectively, against Lincoln stations, individually 
and collectively. The proposed acquisition would end that competition.
    Post-acquisition, if Entercom raised prices or lowered services to 
those advertisers that buy advertising time on the Entercom and Lincoln 
stations in the Denver MSA, non-Entercom stations in that MSA, risking 
a significant loss of their existing audiences, would be unlikely to 
change their formats to attempt to attract the Entercom stations' 
audiences. Even if one or more non-Entercom stations changed their 
format, they would be unlikely to attract in a timely manner enough 
listeners to make a price increase or service reduction unprofitable 
for Entercom. Finally, the entry of new radio stations into the Denver 
MSA would not be timely, likely, or sufficient to deter the exercise of 
market power.
    For all these reasons, the Complaint alleges that Entercom's 
proposed acquisition of Lincoln would lessen competition substantially 
in the sale of radio advertising time to advertisers targeting English-
language listeners in the Denver MSA, eliminate head-to-head 
competition between Entercom and Lincoln stations in the Denver MSA, 
and result in increased prices and reduced quality of service for radio 
advertisers in that MSA, all in violation of Section 7 of the Clayton 
Act.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The divestiture requirement of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in the Denver 
MSA by maintaining the Divestiture Stations as independent, 
economically viable competitors. The proposed Final Judgment requires 
Entercom to divest the following broadcast radio stations located in 
the Denver MSA to Bonneville International Corporation: KOSI FM, KKFN 
FM, and KYGO FM. The United States has approved this divestiture buyer. 
The Antitrust Division required Entercom to identify the Acquirer of 
the Divestiture Stations in order to provide greater certainty and 
efficiency in the divestiture process.
    The ``Divestiture Assets'' are defined in Paragraph II.H of the 
proposed Final Judgment to cover all assets, tangible or intangible, 
principally devoted to and necessary for the operation of the 
Divestiture Stations as viable, ongoing commercial broadcast radio 
stations. With respect to each Divestiture Station, the divestiture 
will include assets sufficient to satisfy the United States, in its 
sole discretion, that such assets can and will be used to operate each 
station as a viable, ongoing, commercial radio business.
    To ensure that the Divestiture Stations are operated independently 
from Entercom after the divestiture, Sections IV and XI of the proposed 
Final Judgment prohibit Defendants from entering into any agreements 
during the term of the Final Judgment that create a long-term 
relationship with or any entanglements that affect competition between 
either Defendant and the Acquirer of the Divestiture Stations 
concerning the Divestiture Assets after the divestiture is completed. 
Examples of prohibited agreements include agreements to reacquire any 
part of the Divestiture Assets, agreements to acquire any option to 
reacquire any part of the Divestiture Assets or to assign the 
Divestiture Assets to any other person, agreements to enter into any 
time brokerage agreement, local marketing agreement, joint sales 
agreement, other cooperative selling arrangement, or shared services 
agreement, or agreements to conduct other business negotiations jointly 
with the Acquirer(s) with respect to the Divestiture Assets, or 
providing financing or guarantees of financing with respect to the 
Divestiture Assets, during the term of this Final Judgment. The shared 
services prohibition does not preclude Defendants from continuing or 
entering into any non-sales-related shared services agreement that is 
approved in advance by the United States in its sole discretion. The 
time brokerage agreement prohibition does not preclude Defendants from 
entering into an agreement pursuant to which Bonneville can begin 
operating KOSI FM, KKFN FM, and KYGO FM immediately after the Court's 
approval of the Hold Separate Stipulation and Order in this matter, so 
long as the agreement with Bonneville expires upon the consummation of 
a final agreement to divest the Divestiture Assets to Bonneville.
    Defendants are required to take all steps reasonably necessary to 
accomplish the divestiture quickly and to cooperate with prospective 
purchasers. Because transferring the broadcast license for each of the 
Divestiture Stations requires FCC approval, Defendants are specifically 
required to use their best efforts to obtain all necessary FCC 
approvals as expeditiously as possible. The divestiture of each of the 
Divestiture Stations must occur within 90 calendar days after the 
filing of the Hold Separate Stipulation and Order in this matter, 
subject to extension during the pendency of any necessary FCC order 
pertaining to the divestiture. The United States, in its sole 
discretion, may agree to one or more extensions of this time period not 
to exceed ninety (90) calendar days in total, and shall notify the 
Court in such circumstances.
    In the event that Defendants do not accomplish the divestitures the 
periods

[[Page 43467]]

prescribed in the proposed Final Judgment, the proposed Final Judgment 
provides that the Court, upon application of the United States, will 
appoint a trustee selected by the United States to effect the 
divestitures. If a trustee is appointed, the proposed Final Judgment 
provides that Entercom will pay all costs and expenses of the trustee. 
The trustee's commission will be structured to provide an incentive for 
the trustee based on the price obtained and the speed with which the 
divestiture is accomplished. After his or her appointment becomes 
effective, the trustee will file monthly reports with the Court and the 
United States describing his or her efforts to accomplish the 
divestiture of any remaining stations. If the divestiture has not been 
accomplished after 6 months, the trustee and the United States will 
make recommendations to the Court, which shall enter such orders as 
appropriate, to carry out the purpose of the trust, including extending 
the trust or the term of the trustee's appointment.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Section 4 of the Clayton Act, 15 U.S.C. Sec. ``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. Sec.  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. In 
addition, comments will be posted on the United States Department of 
Justice, Antitrust Division's Internet Web site and, under certain 
circumstances, published in the Federal Register.
    Written comments should be submitted to:

David C. Kully
Chief, Litigation III Section
Antitrust Division
United States Department of Justice
450 5th Street, N.W. Suite 4000
Washington, DC 20530

    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and Defendants 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 Defendants. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions against Entercom's acquisition of 
Lincoln. The United States is satisfied, however, that the divestiture 
of assets described in the proposed Final Judgment will preserve 
competition for the sale of English-language broadcast radio 
advertising in the Denver MSA. 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)(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 reaches of the public interest.'' United States v. 
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act); United 
States v, U.S. Airways Group, Inc., No. 13-cv-1236 (CKK), 2014-1 Trade 
Cas. (CCH) ] 78, 748, 2014 U.S. Dist. LEXIS 57801, at *7 (D.D.C. Apr. 
25, 2014) (noting the court has broad discretion of the adequacy of the 
relief at issue); United States v. InBev N.V./S.A., No. 08-1965 (JR), 
2009-2 Trade Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787, at *3, 
(D.D.C. Aug. 11, 2009) (noting that the court's review of a consent 
judgment is limited and only inquires ``into whether the government's 
determination that the proposed remedies will cure the antitrust 
violations alleged in the complaint was reasonable, and whether the 
mechanism to enforce the final judgment are clear and 
manageable.'').\2\
---------------------------------------------------------------------------

    \2\ 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)(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).
---------------------------------------------------------------------------

    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA a court considers,

[[Page 43468]]

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) (quoting 
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); InBev, 2009 U.S. Dist. LEXIS 84787, 
---------------------------------------------------------------------------
at *3. 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 U.S. Airways, 2014 U.S. Dist. 
LEXIS 57801, at *16 (noting that a court should not reject the proposed 
remedies because it believes others are preferable); 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 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 U.S. 
Airways, 2014 U.S. Dist. LEXIS 57801, at *8 (noting that room must be 
made for the government to grant concessions in the negotiation process 
for settlements (citing Microsoft, 56 F.3d at 1461)); 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; see also U.S. Airways, 
2014 U.S. Dist. LEXIS 57801, at *9 (noting that the court must simply 
determine whether there is a factual foundation for the government's 
decisions such that its conclusions regarding the proposed settlements 
are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the 
`public interest' is not to be measured by comparing the violations 
alleged in the complaint against those the court believes could have, 
or even should have, been alleged''). 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. Microsoft, 56 
F.3d 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); see also U.S. Airways, 2014 U.S. Dist. 
LEXIS 57801, at * 9 (indicating that a court is not required to hold an 
evidentiary hearing or to permit intervenors as part of its review 
under the Tunney Act). 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.\4\ A court can make its public 
interest determination based on the competitive impact statement and 
response to public comments alone. U.S. Airways, 2014 U.S. Dist. LEXIS 
57801, at * 9.
---------------------------------------------------------------------------

    \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) ] 
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 the United States in 
formulating the proposed Final Judgment.


[[Page 43469]]


Dated: July 14, 2015

Respectfully submitted,

Mark A. Merva * (D.C. Bar #451743)
Trial Attorney
United States Department of Justice
Antitrust Division
Litigation III Section
450 Fifth Street, N.W., Suite 4000
Washington, D.C. 20530
Phone: 202[dash]616-1398
Facsimile: 202[dash]514[dash]7308
E-mail: [email protected]

* Attorney of Record

APPENDIX A

    The term ``HHI'' 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 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 points 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 1,500 and 2,500 points are 
considered to be moderately concentrated, and markets in which the HHI 
is in excess of 2,500 points are considered to be highly concentrated. 
See U.S. Department of Justice & FTC, Horizontal Merger Guidelines 
Sec.  5.3 (2010). Transactions that increase the HHI by more than 200 
points in highly concentrated markets presumptively raise antitrust 
concerns under the Horizontal Merger Guidelines issued by the 
Department of Justice and the Federal Trade Commission. See id.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. ENTERCOM COMMUNICATIONS 
CORP. and LINCOLN FINANCIAL MEDIA COMPANY, Defendants.
CASE NO.: 1:15-cv-01119-RC
JUDGE: Rudolph Contreras
FILED: 07/14/15

PROPOSED FINAL JUDGMENT

    WHEREAS, plaintiff, the United States of America filed its 
Complaint on July 14, 2015, and plaintiff and Entercom Communications 
Corp. (``Entercom'') and Lincoln Financial Media Company (``Lincoln''), 
by their respective attorneys, have consented to the entry of this 
Final Judgment without trial or adjudication of any issue of fact or 
law herein, and without this Final Judgment constituting any evidence 
against or an admission by any party with respect to any issue of law 
or fact herein;
    AND WHEREAS, defendants have agreed 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 and assets by the defendants to 
assure that competition is not substantially lessened;
    AND WHEREAS, the United States requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    AND WHEREAS, defendants have represented to the United States 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 hereby ORDERED, ADJUDGED, and DECREED:

I. JURISDICTION

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of 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. ``Entercom'' means defendant Entercom Communications Corp., a 
Pennsylvania corporation headquartered in Bala Cynwyd, Pennsylvania, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    B. ``Lincoln'' means defendant Lincoln Financial Media Company, a 
North Carolina corporation headquartered in Atlanta, Georgia, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    C. ``Acquirer'' means Bonneville International Corporation, or 
another entity to which the defendants divest any Divestiture Assets.
    D. ``MSA'' means Metropolitan Survey Area as defined by A.C. 
Nielsen Company and used by the Investing in Radio BIA Market Report 
2014 (1st edition). MSAs are ranked according to the number of 
households therein and are used by broadcasters, advertisers, and 
advertising agencies to aid in evaluating radio audience size and 
composition.
    E. ``KOSI FM'' means the broadcast radio station located in the 
Denver, Colorado MSA owned by defendant Entercom.
    F. ``KKFN FM'' means the broadcast radio station located in the 
Denver, Colorado MSA owned by defendant Lincoln.
    G. ``KYGO FM'' means the broadcast radio station located in the 
Denver, Colorado MSA owned by defendant Lincoln.
    H. ``Divestiture Assets'' means all of the assets, tangible or 
intangible, principally devoted to and necessary for the operations of 
KOSI FM, KKFN FM and KYGO FM as viable, ongoing commercial broadcast 
radio stations, except as otherwise agreed to in writing by the United 
States Department of Justice, including, but not limited to, all real 
property (owned or leased) principally devoted to and necessary for the 
operation of the stations, all broadcast equipment, office equipment, 
office furniture, fixtures, materials, supplies, and other tangible 
property principally devoted to and necessary for the operation of the 
stations; all licenses, permits, authorizations, and applications 
therefore issued by the Federal Communications Commission (``FCC'') and 
other government agencies related to the stations; all contracts 
(including programming contracts and rights), agreements, network 
agreements, leases, and commitments and understandings of Defendants 
principally devoted to and necessary for the operation of the stations; 
all trademarks, service marks, trade names, copyrights, patents, 
slogans, programming materials, and promotional materials relating to 
the stations; all customer lists, contracts, accounts, and credit 
records; all logs and other records maintained by Defendants in 
connection with the stations; and rights (pursuant to a lease or other 
agreement acceptable to the United States in its sole discretion) to 
transmission facilities necessary for the operations of KOSI FM, KKFN 
FM and KYGO FM.

[[Page 43470]]

III. APPLICABILITY

    A. This Final Judgment applies to Entercom and Lincoln 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 Sections 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 include the 
defendants' 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 assets divested 
pursuant to the Final Judgment.

IV. DIVESTITURES

    A. Defendants are ordered and directed, within ninety (90) calendar 
days after the filing of the Hold Separate Stipulation and Order in 
this matter, to divest the Divestiture Assets to an Acquirer or 
Acquirers 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 ninety (90) calendar days 
in total, and shall notify the Court in such circumstances. With 
respect to divestiture of the Divestiture Assets by defendants 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(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 the Divestiture Assets 
for which no FCC order has issued no later than ten (10) business days 
after the order of the FCC consenting to the assignment of the 
Divestiture Assets to Bonneville has become final. Entercom shall use 
its best efforts to accomplish the divestitures ordered by this Final 
Judgment as expeditiously as possible, including using its best efforts 
to obtain all necessary FCC 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 Final Judgment.
    B. In the event that defendants are attempting to divest assets 
related to KOSI FM, KKFN FM or KYGO FM to an Acquirer other than 
Bonneville:
    (1) Defendants promptly shall make known, by usual and customary 
means, the availability of the Divestiture Assets;
    (2) 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;
    (3) Defendants shall offer to furnish to all bona fide 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 privilege or work-product 
doctrine; and
    (4) Defendants shall make available such information to the United 
States at the same time that such information is made available to any 
other person.
    C. Defendants shall provide the Acquirer(s) and the United States 
information relating to the personnel involved in and necessary to the 
operation or management of the Divestiture Assets to enable the 
Acquirer(s) to make offers of employment. Defendants shall not 
interfere with any negotiations by the Acquirer(s) to employ or 
contract with any employee of any defendant who is involved in and 
necessary to the operation or management of the Divestiture Assets.
    D. Defendants shall permit the Acquirer(s) of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
of the physical facilities of KOSI FM, KKFN FM and KYGO FM; 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. Entercom shall warrant to the Acquirer(s) that each Divestiture 
Asset will be operational on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets.
    G. Entercom shall warrant to the Acquirer(s) that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each Divestiture Asset, and that, 
following the sale of the Divestiture Assets, defendants will not 
undertake, directly or indirectly, any challenges to the environmental, 
zoning, or other permits relating to the operation of the Divestiture 
Assets.
    H. The foregoing Sections IV.C through IV.G shall not apply in the 
event that the acquirer of the Divestiture Assets is Bonneville 
pursuant to the Asset Exchange Agreement dated as of July 10, 2015, by 
and among Entercom Radio, LLC, Entercom License, LLC, Entercom Denver, 
LLC, Entercom California, LLC, and Bonneville International 
Coprporation, and, as of the Closing, Lincoln Financial Media Company.
    I. 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 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(s) as part of a viable, ongoing commercial 
radio broadcasting business, and the divestiture of such assets will 
achieve the purposes of this Final Judgment and remedy the competitive 
harm alleged in the Complaint. The divestitures, whether pursuant to 
Section IV or Section V of this Final Judgment:
    (1) shall be made to an Acquirer or Acquirers that, in the United 
States' sole judgment, has the intent and capability (including the 
necessary managerial, operational, technical, and financial capability) 
of competing effectively in the commercial radio broadcasting business; 
and
    (2) shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement between an 
Acquirer and defendants gives defendants the ability unreasonably to 
raise any Acquirer's costs, to lower any Acquirer's efficiency, or 
otherwise to interfere in the ability of any Acquirer to compete 
effectively.

V. APPOINTMENT OF TRUSTEE

    A. If defendants have not divested the Divestiture Assets within 
the time period specified in Section IV(A), defendants shall notify the 
United States of that fact in writing. Upon application of the United 
States, the Court shall appoint a Divestiture 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 Divestiture Trustee becomes 
effective, only the 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

[[Page 43471]]

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 Divestiture Trustee may hire 
at the cost and expense of defendants 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. Any such investment bankers, attorneys, or other 
agents shall serve on such terms and conditions as the United States 
approves, including confidentiality requirements and conflict of 
interest certifications.
    C. Defendants shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance. Any such objections by 
defendants must be conveyed in writing to the United States and the 
Divestiture Trustee within ten (10) calendar days after the trustee has 
provided the notice required under Section VI.
    D. The Divestiture Trustee shall serve at the cost and expense of 
defendants pursuant to a written agreement, on such terms and 
conditions as the United States approves, including confidentiality 
requirements and conflict-of-interest certifications. The trustee shall 
account for all monies derived from its sale of the Divestiture Assets 
and all costs and expenses so incurred. After approval by the Court of 
the trustee's accounting, including fees for its services yet unpaid 
and those of any professionals and agents retained by the 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 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. If the Divestiture Trustee 
and defendants are unable to reach agreement on the trustee's or any 
agents' or consultants' compensation or other terms and conditions of 
engagement within 14 calendar days of appointment of the trustee, the 
United States may, in its sole discretion, take appropriate action, 
including making a recommendation to the Court. The Divestiture Trustee 
shall, within three (3) business days of hiring any other professionals 
or agents, provide written notice of such hiring and the rate of 
compensation to defendants and the United States.
    E. Defendants shall use their best efforts to assist the 
Divestiture Trustee in accomplishing the required divestiture. The 
Divestiture Trustee and any consultants, accountants, attorneys, and 
other agents retained by the trustee shall have full and complete 
access to the personnel, books, records, and facilities of the business 
to be divested, and defendants shall develop financial and other 
information relevant to such business as the trustee may reasonably 
request, subject to reasonable protection for trade secret or other 
confidential research, development, or commercial information or any 
applicable privileges. Defendants shall take no action to interfere 
with or to impede the Divestiture Trustee's accomplishment of the 
divestiture.
    F. After its appointment, the Divestiture Trustee shall file 
monthly reports with the United States and, as appropriate, 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 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.
    G. If the Divestiture Trustee has not accomplished the divestiture 
ordered under this Final Judgment within six 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 report contains information that 
the Divestiture Trustee deems confidential, such report shall not be 
filed in the public docket of the Court. The Divestiture 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 Divestiture Trustee's appointment by a period requested by 
the United States.
    H. If the United States determines that the Divestiture Trustee has 
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute 
Divestiture Trustee.

VI. NOTICE OF PROPOSED DIVESTITURE

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the Divestiture Trustee, whichever 
is then responsible for effecting the divestiture required herein, 
shall notify the United States 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 by the United 
States of such notice, the United States may request from defendants, 
the proposed Acquirer(s), any other third party, or the Divestiture 
Trustee, if applicable, additional information concerning the proposed 
divestiture(s), the proposed Acquirer(s), 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 the United States has been 
provided the additional information requested from defendants, the 
proposed Acquirer(s), any third party, and the Divestiture Trustee, 
whichever is later, the United States shall provide written notice to 
defendants 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 defendants' limited right to object to the 
sale under Section V(C) of this Final Judgment. Absent written notice 
that the United States does not object to the proposed Acquirer(s) or 
upon objection by the United States, a divestiture proposed under 
Section IV or Section V

[[Page 43472]]

shall not be consummated. Upon objection by defendants under Section 
V(C), 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 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, defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants 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 of this Final 
Judgment, defendants shall deliver to the United States an affidavit as 
to the fact and manner of their compliance with Section IV or V of this 
Final Judgment. Each such affidavit shall include the name, address, 
and telephone number of each person who, during the preceding thirty 
(30) days, made an offer to acquire, expressed an interest in 
acquiring, entered into negotiations to acquire, or was contacted or 
made an inquiry about acquiring, any interest in the Divestiture 
Assets, and shall describe in detail each contact with any such person 
during that period. Each such affidavit shall also include a 
description of the efforts defendants have taken to solicit buyers for 
and complete the sale of the Divestiture Assets, including efforts to 
secure FCC or other regulatory approvals, 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 defendants, including limitations on 
information, shall be made within fourteen (14) days of receipt of such 
affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, each defendant shall deliver to the United States 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. Each such 
affidavit shall also include a description of the efforts defendants 
have taken to complete the sale of the Divestiture Assets, including 
efforts to secure FCC or other regulatory approvals. Defendants shall 
deliver to the United States 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 
divestiture has been completed.

X. COMPLIANCE INSPECTION

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of any related orders such as the Hold Separate 
Stipulation and Order, or of determining whether the Final Judgment 
should be modified or vacated, and subject to any legally recognized 
privilege, from time to time duly authorized representatives of the 
United States Department of Justice, including consultants and other 
persons retained by the United States, shall, upon written request of 
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 the option of the United States, to require defendants to provide 
hard copies 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 responses 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, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the 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)(1)(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)(1)(G) of the Federal Rules of Civil Procedure,'' then the 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 OR OTHER PROHIBITED ACTIVITIES

    After the Divestiture Assets have been divested to an Acquirer or 
Acquirers acceptable to the United States in its sole discretion, 
Defendants may not (1) reacquire any part of the Divestiture Assets, 
(2) acquire any option to reacquire any part of the Divestiture Assets 
or to assign the Divestiture Assets to any other person, (3) enter into 
any time brokerage agreement, local marketing agreement, joint sales 
agreement, other cooperative selling arrangement, or shared services 
agreement, or conduct other business negotiations jointly with the 
Acquirer(s) with respect to the Divestiture Assets, or (4) provide 
financing or guarantees of financing with respect to the Divestiture 
Assets, during the term of this Final Judgment.
    The shared services prohibition does not preclude defendants from 
continuing or entering into any non-sales-related shared services 
agreement that is approved in advance by the United States in its sole 
discretion.
    If defendants reach an agreement to divest the Divestiture Assets 
to the Acquirer, defendants may also enter into an agreement, approved 
in advance by the United States in its sole discretion, under which a 
defendant cedes to the Acquirer the sole right and ability to operate 
one or more of KOSI FM, KKFN FM and KYGO FM after the Court's approval 
of the Hold Separate Stipulation and Order in this matter, provided 
that any such time brokerage agreement (as well as any time brokerage 
agreement between a defendant and the Acquirer relating to any other 
broadcast radio stations in the Denver MSA) must expire upon the

[[Page 43473]]

termination of a final agreement to divest the Divestiture Assets to 
the Acquirer or upon the consummation of a final agreement to divest 
the Divestiture Assets to the Acquirer.

XII. RETENTION OF JURISDICTION

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

XIII. EXPIRATION OF FINAL JUDGMENT

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

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. Sec.  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 on the record before the Court, which includes the Competitive 
Impact Statement and any comments and responses 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. Sec.  16
United States District Judge
[FR Doc. 2015-17992 Filed 7-21-15; 8:45 am]
BILLING CODE P