Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65633

1Petitioners are Seaman Paper Company of 

Massachusetts, Inc.; American Crepe Corp.; Eagle 

Tissue LLC; Flower City Tissue Mills Co.; Garlock 

Printing & Converting, Inc.; Paper Service Ltd.; 

Putney Paper Co., Ltd.; and the Paper, AlliedIndustrial, Chemical and Energy Workers 

International Union AFL–CIO, CLC.

EFFECTIVE DATE: November 5, 2004.

FOR FURTHER INFORMATION CONTACT: Fred 

Forstall ((202) 205–3443), Office of 

Industries, U.S. International Trade 

Commission, 500 E Street SW., 

Washington, DC 20436. Hearingimpaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 

(202) 205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at (202) 205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its internet server (http://

www.usitc.gov). The public record for 

this investigation may be viewed on the 

Commission’s electronic docket (EDIS) 

at http://edis.usitc.gov.

SUPPLEMENTARY INFORMATION: On 

October 4, 2004, the Commission issued 

a schedule for the conduct of the final 

phase of the subject investigation (69 FR 

60423, October 8, 2004). Subsequently, 

counsel on behalf of petitioners in this 

investigation 1 requested that the 

Commission extend the deadline for 

filing posthearing briefs on issues 

related to tissue paper (also applicable 

to the deadline for the submission of a 

written statement of information on 

issues related to tissue paper by any 

person who has not entered an 

appearance as a party to the 

investigation) by one week or more 

(letter from Collier Shannon Scott, PLLC 

to Marilyn R. Abbott, Secretary, October 

21, 2004). Upon consideration of the 

reasons stated for the request, including 

an overlapping deadline with a related 

filing on crepe paper from China, the 

Commission is revising its schedule to 

extend the deadline for filing 

posthearing briefs and written 

statements by non-parties on issues 

related to tissue paper from January 5, 

2005, to January 12, 2005.

For further information concerning 

this investigation see the Commission’s 

notice cited above and the 

Commission’s Rules of Practice and 

Procedure, part 201, subparts A through 

E (19 CFR part 201), and part 207, 

subparts A and C (19 CFR part 207).

Authority: This investigation is being 

conducted under authority of title VII of the 

Tariff Act of 1930; this notice is published 

pursuant to section 207.21 of the 

Commission’s rules.

By order of the Commission.

Issued: November 8, 2004. 

Marilyn R. Abbott, 

Secretary to the Commission.

[FR Doc. 04–25255 Filed 11–12–04; 8:45 am] 

BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Antitrust Division 

United States v. Cingular Wireless 

Corporation, SBC Communications 

Inc., BellSouth Corporation, and AT&T 

Wireless Services, Inc.; Competitive 

Impact Statement, Proposed Final 

Judgment, Complaint, Preservation of 

Assets Stipulation and Order 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a Complaint, 

proposed Final Judgment, Preservation 

of Assets Stipulation and Order, and 

Competitive Impact Statement have 

been filed with the U.S. District Court 

for the District of Columbia in United 

States v. Cingular Wireless Corps., Civil 

Case No. 1:04CV01850 (RBW). On 

October 25, 2004, the United States, 

along with the Attorneys General from 

the states of Connecticut and Texas, 

filed a complaint alleging that the 

proposed acquisition of AT&T Wireless 

Services, Inc. (‘‘AT&T Wireless’’) by 

Cingular Wireless Corp. (‘‘Cingular’’), 

which is jointly owned by BellSouth 

Corporation (‘‘BellSouth’’) and SBC 

Communications, Inc. (‘‘SBC’’), would 

violate Section 7 of the Clayton Act, 15 

U.S.C. 18, by substantially lessening 

competition in the provision of mobile 

wireless telecommunications services 

and mobile wireless broadband services. 

The proposed Final Judgment, filed at 

the same time as the Complaint and 

Preservation of Assets Stipulation and 

Order, requires Cingular to divest assets 

in eleven states—Connecticut, Georgia, 

Kansas, Kentucky, Louisiana, 

Massachusetts, Missouri, Michigan, 

Oklahoma, Tennessee, and Texas—in 

order to proceed with Cingular 

Wireless’s $41 billion cash acquisition 

of AT&T Wireless. A Competitive 

Impact Statement filed by the United 

States on October 29, 2004 describes the 

Complaint, the proposed Final 

Judgment, the industry, and the 

remedies available to private litigants 

who may have been injured by the 

alleged violation. 

Copies of the Complaint, proposed 

Final Judgment, Preservation of Assets 

Stipulation and Order, the Competitive 

Impact Statement, and all further papers 

filed with the Court in connection with 

the Complaint will be available for 

inspection at the Antitrust Documents 

Group, Antitrust Division, Liberty Place 

Building, Room 215, 325 7th Street, 

NW., Washington, DC 20530 (202–514–

2481), and at the Office of the Clerk of 

the U.S. District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Interested persons may submit 

comments in writing regarding the 

proposed consent decree to the United 

States. Such comments must be received 

by the Antitrust Division within sixty 

(60) days and will be filed with the 

Court by the United States. Comments 

should be addressed to Nancy 

Goodman, Chief, Telecommunications & 

Media Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530 (202–514–5621). 

At the conclusion of the sixty (60) day 

comment period. The U.S. District Court 

for the District of Columbia may enter 

the proposed consent decree upon 

finding that it serves the public interest.

J. Robert Kramer II, 

Director of Operations, Antitrust Division.

In the United States District Court for 

the District of Columbia 

United State of America, State of 

Connecticut and State of Texas, 

Plaintiffs, v. Cingular Wireless 

Corporation, SBC Communications Inc., 

Bellsouth Corporation and AT&T 

Wireless Services, Inc., Defendants; 

Competitive Impact Statement 

Civil No. 1:04CV01850 (RBW). 

Filed: October 29, 2004.

Plaintiff United States of America 

(‘‘United States’’), pursuant to Section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. § 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

Defendants Cingular Wireless 

Corporation (‘‘Cingular’’), SBC 

Communications Inc. (‘‘SBC’’), 

BellSouth Corporation (‘‘BellSouth’’), 

and AT&T Wireless Services, Inc. 

(‘‘AT&T Wireless Services’’) entered 

into an Agreement and Plan of Merger 

dated February 17, 2004, pursuant to 

which Cingular will acquire AT&T 

Wireless. Plaintiff United States and the 

states of Connecticut and Texas 

(‘‘plaintiff states’’) filed a civil antitrust 

Complaint on October 25, 2004, seeking 

to enjoin the proposed acquisition. The

65634 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

Compliant alleges that the likely effect 

of this acquisition would be to lessen 

competition substantially for mobile 

wireless telecommunications services 

and mobile wireless broadband services 

(collectively, ‘‘Mobile wireless 

services’’) in violation of Section 7 of 

the Clayton Act, 15 U.S.C. 18. This loss 

of competition would result in 

consumers facing higher prices, lower 

quality or quantity of mobile wireless 

services, or delayed launch of new 

mobile wireless services. 

At the same time the Complaint was 

filed, plaintiff United States also filed a 

Preservation of Assets Stipulation and 

Order and proposed Final Judgment, 

which are designed to eliminate the 

anticompetitive effects of the 

acquisition. Under the proposed Final 

Judgment, which is explained more 

fully below, defendants are required to 

divest (1) AT&T Wireless’s mobile 

wireless services business and related 

assets in five markets (‘‘Wireless 

Business Divesture Assets’’); (2) 

Cingular’s or AT&T Wireless’s minority 

interests in other mobile wireless 

services providers in five markets 

(‘‘Minority Interests’’); and (3) 10 MHz 

of contiguous PCS wireless spectrum in 

three markets (‘‘Spectrum Divesture 

Assets’’). Under the terms of the 

Preservation of Assets Stipulation and 

Order, defendants will take certain steps 

to ensure (a) that these assets are 

preserved and that the Wireless 

Business Divestiture Assets are operated 

as competitively independent, 

economically viable and ongoing 

businesses; (b) that they will remain 

independent and uninfluenced by 

defendants or the consummation of the 

transaction; and (c) that competition is 

maintained during the pendency of the 

ordered divestiture. 

Plaintiffs and defendants have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. Plaintiffs and defendants have 

also stipulation that defendants will 

comply with the terms of the 

Preservation of Assets Stipulation and 

Order and the proposed Final Judgment 

from the date of signing of the 

Preservation of Assets Stipulation and 

Order, pending entry of the proposed 

Final Judgment by the Court and the 

required divestitures. Should the Court 

decline to enter the proposed Final 

Judgment, defendants have also 

committed to continue to abide by its 

requirements and those of the 

Preservation of Assets Stipulation and 

Order until the expiration of time for 

appeal.

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Transaction 

Cingular, with headquarters in 

Atlanta, Georgia, is a company 

organized and existing under the laws of 

the State of Delaware. Cingular was 

formed in 2000 by SBC and BellSouth, 

who own equity interests in it of 60 and 

40 percent, respectively. SBC and 

BellSouth evenly share management 

control of Cingular. Cingular is the 

second-largest provider of mobile 

wireless voice and data services in the 

United States by number of subscribers; 

it serves more than 24 million 

customers. Cingular provides mobile 

wireless services in areas throughout the 

United States and is one of only six 

providers with a national presence. In 

2003, Cingular earned revenues of 

approximately $15.5 billion. 

SBC, with headquarters in San 

Antonio, Texas, is a corporation 

organized and existing under the laws of 

the state of Delaware. SBC is one of 

several regional Bell operating 

companies (‘‘RBOCs’’) formed in 1984 

as a result of the breakup of AT&T 

Corporation’s local telephone business. 

SBC’s wireline telecommunications 

businesses serve 54.7 million access 

lines in 13 states: Arkansas, California, 

Connecticut, Illinois, Indiana, Kansas, 

Michigan, Missouri, Nevada, Ohio, 

Oklahoma, Texas, and Wisconsin. In 

2003, SBC earned approximately $40.8 

billion in revenues. 

BellSouth, an RBOC with 

headquarters in Atlanta, Georgia, is a 

corporation organized and existing 

under the laws of the state of Georgia. 

BellSouth’s wireline 

telecommunications businesses serve 

23.7 million access lines in nine states: 

Alabama, Florida, Georgia, Kentucky, 

Louisiana, Mississippi, North Carolina, 

South Carolina, and Tennessee. Its total 

operating revenues for 2003 were 

approximately $22.6 billion. 

AT&T Wireless, with headquarters in 

Redmond, Washington, is a corporation 

organized and existing under the laws of 

the state of Delaware. Spun off from 

AT&T Corporation in 2001, it had more 

than 22 million subscribers as of August 

2004 and earned revenues of 

approximately $16.6 billion in 2003. 

AT&T Wireless is the third-largest U.S. 

mobile wireless services provider by 

number of subscribers, and, like 

Cingular, it provides mobile wireless 

services in areas throughout the United 

States and has a national presence. 

Pursuant to an Agreement and Plan of 

Merger dated February 17, 2004, 

Cingular will pay AT&T Wireless 

shareholders $15 in cash per common 

share and thereby plans to acquire 

AT&T Wireless for approximately $41 

billion. If this transaction is 

consummated, Cingular and AT&T 

Wireless combined would have more 

than 46 million subscribers, with over 

$32 billion in revenues, making it the 

largest mobile wireless services provider 

in the United States, with operations in 

49 states covering 97 of the top 100 

marketing areas. 

The proposed transaction, as initially 

agreed to by defendants, would lessen 

competition substantially for mobile 

wireless telecommunications service in 

10 markets and for mobile wireless 

broadband services in three markets. 

This acquisition is the subject of the 

Complaint and proposed Final 

Judgment filed by plaintiffs. 

B. Mobile Wireless Services Industry 

Mobile wireless services allow 

customers to make and receive 

telephone calls and use data services 

using radio transmissions without being 

confined to a small area during the call 

or data session, and without the need 

for unobstructed line-of-sight to the 

radio tower. This mobility is highly 

prized by customers, as demonstrated 

by the more than 160 million people in 

the United States who own mobile 

wireless telephones. In 2003, revenues 

for the sale of mobile wireless services 

in the United States were nearly $90 

billion. To provide these services, 

mobile wireless services providers must 

acquire adequate and appropriate 

spectrum, deploy an extensive network 

of switches, radio transmitters, and 

receivers, and interconnect this network 

with those of local and long-distance 

wireline telecommunications providers 

and other mobile wireless services 

providers. 

The first wireless voice systems were 

based on analog technology, now 

referred to as first-generation or ‘‘1G’’

technology. These analog systems were 

launched after the FCC issued the first 

licenses for mobile wireless telephone 

service: two cellular licenses (A-block 

and B-block) in each geographic area in 

the early to mid-1980s. The licenses are 

in the 800 MHz range of the radio 

spectrum, each license consists of 25 

MHz of spectrum, and they are issued 

for each Metropolitan Statistical Area 

(‘‘MSA’’) and Rural Service Area 

(‘‘RSA’’) (collectively, ‘‘Cellular 

Marketing Areas’’ or ‘‘CMAs’’), with a 

total of 734 CMAs covering the entire

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65635

United States. In 1982, one of the 

licenses was issued to the incumbent 

local exchange carrier in the market, 

and the other was issued by lottery to 

someone other than the incumbent. 

Cellular licensees must support analog 

service until February 2008. 

In 1995, the FCC allocated and 

subsequently issued licenses for 

additional spectrum for the provision of 

Personal Communications Services 

(‘‘PCS’’), a category of services that 

includes mobile wireless telephone 

services comparable to those offered by 

cellular licensees. These licenses are in 

the 1.8 GHz range of the radio spectrum 

and are divided into six blocks. A, B, 

and C, which consist of 30 MHz each; 

and D, E, and F, which consist of 10 

MHz each. Geographically, the A and Bblock 30 MHz licenses are issued by 

Major Trading Areas (‘‘MTAs’’), and C, 

D, E, and F-block licenses are issued by 

Basic Trading Areas (‘‘BTAs’’), several 

of which comprise each MTA. MTAs 

and BTAs do not generally correspond 

to MSAs and RSAs. With the 

introduction of the PCS license, both 

cellular and PCS licensees began 

offering digital services, thereby 

increasing capacity, shrinking handsets, 

and extending battery life. Unlike the 

cellular licensees, PCS licensees are not 

required to provide support for analog 

or any other technology standard. In 

1996, one provider, a specialized mobile 

radio (‘‘SMR’’ or ‘‘dispatch’’) spectrum 

licensee, began to use its SMR spectrum 

of offer mobile wireless telephone 

services comparable to those offered by 

other mobile wireless services 

providers, in conjunction with its 

dispatch, or ‘‘push-to-talk,’’ service.

Today, more than 90 percent of all 

mobile wireless services customers have 

digital service, and nearly all mobile 

wireless voice service has migrated to 

second-generation or ‘‘2G’’ digital 

technologies: TDMA (time division 

multiple access), GSM (Global Standard 

for Mobile, a type of TDMA standard 

used by all carriers in Europe), and 

CDMA (code division multiple access). 

Mobile wireless services providers have 

chosen to build their networks on these 

incompatible technologies and most 

have chosen CDMA or GSM, with 

TDMA having been orphaned by 

equipment vendors. (The SMR 

providers use a fourth incompatible 

technological standard better suited to 

the spectrum they own, and, as SMR 

licensees, they have no obligation to 

support a specific technology standard.) 

Even more advanced technologies 

(‘‘2.5G’’) have begun to be deployed for 

voice and data (e.g., IxRIT (a/k/a CDMA 

2000), GPRS (General Packet Radio 

Service), and EDGE (Enhanced Data for 

GSM Evolution)). The data transmission 

speeds of these technologies vary. For 

example, 1xRTT provides average user 

speeds of 70 kilobits per second 

(‘‘kbps’’), and GPRS and EDGE provide 

average user speeds of 20 to 40 kbps and 

80 to 110 kbps, respectively. 

Currently, the U.S. mobile wireless 

services industry is taking the next 

evolutionary step in wireless technology 

to third-generation or ‘‘3G’’ technologies 

(e.g., for GSM, UMTS (Universal Mobile 

Telecommunications System) and for 

CDMA, Ev–DO/DV (Evolution Data 

Only/Date Voice)) that provide for more 

capacity and higher data throughout. All 

of the national mobile wireless services 

providers and some of the regional 

providers are considering how and 

where they will deploy 3G services 

across their networks. Some providers 

have already deployed this service in 

some areas of the country. 

C. The Competitive Effects of the 

Transaction on Mobile Wireless 

Telecommunications Services and 

Mobile Wireless Broadband Services 

Cingular’s proposed acquisition of 

AT&T Wireless will substantially lessen 

competition in mobile wireless 

telecommunications services and 

mobile wireless broadband services in 

the relevant geographic areas. Mobile 

wireless telecommunications services 

include both voice and data services 

provided over a radio network and 

allow customers to maintain their 

telephone calls or data sessions without 

wires, such as when traveling. Mobile 

wireless broadband services offer data 

speeds four to six times faster than the 

2G and 2.5G data offerings currently 

provided by the mobile wireless 

services providers. Mobile wireless 

broadband services, which are now 

being launched using various 3G 

technologies, offer average data speeds 

of 200 to 300 kbps, peaking at 2 

megabits per second or higher. These 

speeds rival wireline broadband 

services at peak speeds. At average 

speeds, they are comparable to low-end 

wireline high-speed data offerings and 

can support bandwidth-intensive 

services including video conferencing, 

video streaming, downloading of music 

and video files, and voice over Internet 

protocol (‘‘VoIP’’) calling, none of which 

can be used reliably at slower speeds. 

Fixed wireless services and other 

wireless services that have a limited 

range (e.g., Wi-Fi) do not offer a viable 

alternative to either mobile wireless 

telecommunications services or mobile 

wireless broadband services primarily 

because customers using these services 

cannot maintain a call or data session 

while moving from one location to 

another. 

Most customers use mobile wireless 

services in close proximity to their 

workplaces and homes. Thus, customers 

purchasing mobile wireless 

telecommunications services and 

mobile wireless broadband services 

choose among mobile wireless services 

providers that offer services where they 

are located and travel on a regular basis: 

home, work, other areas they commonly 

visit, and areas in between. The number 

and identity of mobile wireless services 

providers varies from geographic area to 

geographic area, along with the quality 

of their services and the breadth of their 

geographic coverage, all of which are 

significant factors in customers’

purchasing decisions. Mobile wireless 

services providers can and do offer 

different promotions, discounts, calling 

plans, and equipment subsidies in 

different geographic areas, effectively 

varying the actual price for customers 

by geographic area. 

The relevant geographic markets for 

mobile wireless services are, therefore, 

local in nature and are generally 

centered around a metropolitan area or 

a population center and its environs. 

The FCC has licensed a limited number 

of mobile wireless services providers in 

these and other geographical areas based 

upon the availability of radio spectrum. 

These FCC spectrum licensing areas 

often represent the core of the business 

and social sphere where customers face 

the same competitive choices for mobile 

wireless services. Although not all FCC 

spectrum licensing areas are relevant 

geographic areas for the purpose of 

analyzing the antitrust impact of this 

transaction, the FCC spectrum licensing 

areas that encompass the 13 geographic 

areas of concern in this transaction are 

where consumers in these communities 

principally use their mobile wireless 

services. As described in the Complaint, 

the relevant geographic markets where 

the transactions will substantially lessen 

competition for mobile wireless 

telecommunications services are 

represented by the following FCC 

spectrum licensing areas: Oklahoma 

City, Oklahoma (CMA 045), Topeka, 

Kansas (CMA 179), Pittsfield, 

Massachusetts (CMA 213), Athens, 

Georgia (CMA 234), St. Joseph, Missouri 

(CMA 275), Connecticut RSA–1 (CMA 

357), Kentucky RSA–1 (CMA 443), 

Oklahoma RSA–3 (CMA 598), Texas 

RSA–11 (CMA 662), and Shreveport, 

Louisiana (BTA 419). The relevant 

geographic markets where the 

transaction will substantially lessen 

competition for mobile wireless 

broadband services are represented by 

the following FCC spectrum licensing

65636 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

areas: Dallas-Fort Worth, Texas (CMA 

009), Detroit, Michigan (BTA 112), and 

Knoxville, Tennessee (BTA 232).

The 10 geographic markets of concern 

for mobile wireless telecommunications 

services were identified by a factspecific, market-by-market analysis that 

included consideration of, but was not 

limited to, the following factors: the 

number of mobile wireless services 

providers and their competitive 

strengths and weaknesses, Cingular’s 

and AT&T Wireless’s market shares 

along with those of the other providers, 

whether additional spectrum is or is 

likely soon to be available, whether any 

providers are limited by insufficient 

spectrum or other factors in their ability 

to add new customers or launch 

additional services, the population of a 

market as it affects the need for 

spectrum to serve the population, the 

concentration of the market, and the 

breadth and depth of coverage by 

different providers in each market. 

Cingular and AT&T Wireless both 

own all or part of businesses that offer 

mobile wireless telecommunications 

services in the 10 relevant geographic 

areas. In five of these areas (Athens, 

Georgia; Topeka, Kansas; Pittsfield, 

Massachusetts; St. Joseph, Missouri; and 

Shreveport, Louisiana), Cingular or 

AT&T Wireless also owns minority 

equity interests in another mobile 

wireless telecommunications services 

provider that would be a significant 

competitor to the merged firm for these 

services. The minority equity interests 

range from approximately 9 to 24 

percent. Based upon these significant 

minority equity interests and the 

specific facts of the relationships, it was 

appropriate to attribute the shares and 

assets of the mobile wireless services 

businesses partially owned by Cingular 

or AT&T Wireless in these markets to 

either Cingular or AT&T Wireless, thus 

increasing the percentage of customers 

served by the merged firm. 

The individual market shares of 

Cingular’s and AT&T Wireless’s mobile 

wireless telecommunications services 

businesses in the 10 relevant geographic 

markets as measures in terms of 

subscribers range from 9 to more than 

71 percent, and their combined market 

shares range from 61 to nearly 90 

percent. In each relevant geographic 

market, Cingular or AT&T Wireless has 

the largest market share, and, in all but 

one, the other is the second-largest 

mobile wireless telecommunications 

services provider. In all but one of the 

relevant geographic markets, Cingular 

and AT&T Wireless are the original 

cellular licensees and, as a result, have 

the network infrastructures with the 

greatest depth and breadth of coverage. 

Cingular and AT&T Wireless are likely 

closer substitutes for each other than the 

other mobile wireless 

telecommunications services providers 

in the relevant geographic markets. 

Additionally in these markets, there will 

be insufficient remaining competitors 

post-merger with the ability to compete 

effectively to defeat a small, but 

significant price increase by the merged 

firm. 

The relevant geographic markets for 

mobile wireless telecommunications 

services are highly concentrated. As 

measured by the Herfindahl-Hirschman 

index (‘‘HHI’’), which is commonly 

employed in merger analysis and is 

defined and explained in Appendix A to 

the Compliant, concentration in these 

markets ranges from approximately 

2600 to more than 5300, which is well 

above the 1800 threshold at which the 

Department considers a market to be 

highly concentrated. After Cingular’s 

proposed acquisition of AT&T Wireless 

is consummated, the HHIs in the 

relevant geographic markets will range 

from approximately 4400 to more than 

8000, with increases in the HHI as a 

result of the merger ranging from 

approximately 1100 to more than 3500. 

Competition between Cingular and 

AT&T Wireless in the relevant 

geographic markets has resulted in 

lower prices and higher quality in 

mobile wireless telecommunications 

services than would otherwise have 

existed in these geographic markets. If 

Cingular’s proposed acquisition of 

AT&T Wireless is consummated, the 

relevant geographic markets for mobile 

wireless telecommunications services 

will become substantially more 

concentrated, and the competition 

between Cingular and AT&T Wireless in 

mobile wireless telecommunications 

services will be eliminated in these 

markets. As a result, the loss of 

competition between Cingular and 

AT&T Wireless increases the likelihood 

of unilateral actions by the merged firm 

in the relevant geographic markets to 

increase prices, diminish the quality or 

quantity of services provided, refrain 

from or delay making investments in 

network improvements, and refrain 

from or delay launching new services.

In the relevant geographic markets for 

mobile wireless broadband services, 

Cingular and AT&T Wireless have either 

launched or are likely soon to launch 

mobile wireless broadband services. 

Each has the spectrum necessary to offer 

mobile wireless broadband services and 

has business plans to offer these 

services in these markets. Not all mobile 

wireless services providers have 

sufficient spectrum to launch mobile 

wireless broadband services in these 

markets, nor do they all have business 

plans to do so in the near future. In the 

relevant geographic markets, the current 

number of mobile wireless services 

providers that are likely to launch 

mobile wireless broadband services in 

the foreseeable future is limited. 

Because mobile wireless broadband 

services are nascent, however, HHIs are 

uninformative. 

The competition between Cingular 

and AT&T Wireless has motivated their 

efforts to develop and launch mobile 

wireless broadband services in the 

relevant geographic markets. If 

Cingular’s proposed acquisition of 

AT&T Wireless is consummated, the 

relevant geographic markets will lose 

one of only a few existing and likely 

mobile wireless broadband services 

providers. As a result, the loss of 

competition between Cingular and 

AT&T Wireless increases the likelihood 

of unilateral actions by the merged firm 

in these relevant geographic markets to 

increase prices, diminish the quality or 

quantity of services provided, and 

refrain from or delay the launch of 

mobile wireless broadband services. 

Entry by a new mobile wireless 

services provider in the relevant 

geographic markets would be difficult, 

time-consuming, and expensive, 

requiring the acquisition of spectrum 

licenses and the build-out of a network. 

Therefore, new entry in response to a 

small but significant price increase for 

mobile wireless telecommunications 

services or mobile wireless broadband 

services by the merged firm in the 

relevant geographic markets would not 

be timely, likely, or sufficient to thwart 

the competitive harm that would result 

from Cingular’s proposed acquisition of 

AT&T Wireless. 

For these reasons, plaintiffs 

concluded that Cingular’s proposed 

acquisition of AT&T Wireless will likely 

substantially lessen competition, in 

violation of Section 7 of the Clayton 

Act, in the provision of mobile wireless 

telecommunications services and 

mobile wireless broadband services in 

the relevant geographic markets. 

III. Explanation of the Proposed Final 

Judgment 

The divestiture requirements of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in mobile wireless 

telecommunications services and 

mobile wireless broadband services in 

the 13 geographic markets of concern. 

The proposed Final Judgment requires 

defendants, within 120 days after the 

filing of the Complaint, or five days after 

notice of the entry of the Final Judgment 

by the Court, whichever is later, to

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65637

divest the Wireless Business Divestiture 

Assets, the Minority Interests, and 

Spectrum Divestiture Assets 

(collectively, ‘‘Divestiture Assets’’). The 

Wireless Business Divestiture Assets are 

essentially AT&T Wireless’s entire 

mobile wireless business in the five 

markets where Cingular and AT&T 

Wireless both currently own and control 

providers of mobile wireless 

telecommunications services. These 

assets must be divested in such a way 

as to satisfy plaintiff United States in its 

sole discretion upon consultation with 

any relevant plaintiff state that they will 

be operated by the purchaser as a viable, 

ongoing business that can compete 

effectively in the relevant market. 

Defendants must take all reasonable 

steps necessary to accomplish the 

divestitures quickly and shall cooperate 

with prospective purchasers. 

With respect to the Wireless Business 

Divestiture Assets, in some markets the 

merged firm may retain some of AT&T 

Wireless’s wireless spectrum 

(Connecticut RSA–1, Kentucky RSA–1, 

and Texas RSA–11). The spectrum that 

must be divested is adequate to support 

the operation and expansion of the 

mobile wireless services business being 

divested, and allowing the merged firm 

to retain some of AT&T Wireless’s 

spectrum may benefit consumers by 

allowing the merged firm to provide 

improved or new services. 

In the five markets where either 

Cingular or AT&T Wireless owns a 

minority interest in another mobile 

wireless services provider, the proposed 

Final Judgment requires defendants to 

divest these Minority Interests. The 

proposed Final Judgment allows 

defendants to retain the Minority 

Interests in the Missouri, Kansas, and 

Louisiana areas with the approval of 

plaintiff United States in its sole 

discretion if they demonstrate that the 

retained minority interest will become 

irrevocably and entirely passive so long 

as the merged firm owns the interest 

and will not significantly diminish 

competition. The size of the minority 

interests and market concentrations in 

the Georgia and Massachusetts markets 

created concerns that allowing the 

merged firm to continue to hold even a 

passive interest would diminish 

competition, and defendants are 

required to divest fully their interests in 

those markets.

The Spectrum Divestiture Assets 

consist of 10 MHz of contiguous PCS 

spectrum in three markets and must be 

divested in such a way as to remedy the 

competitive harm from the transaction 

in the relevant mobile wireless 

broadband services markets. The 

availability of this spectrum will make 

it more likely that another mobile 

wireless services provider could offer 

high-speed data services in these areas. 

In Knoxville, Tennessee, the merged 

firm can alternatively restructure its 

relationship with another spectrum 

licensee in the market so that the 

merged firm no longer has an effective 

controlling interest in the licensee and 

that the licensee’s spectrum will be used 

by it in a manner that resolves the 

competitive concerns identified in the 

Complaint, which is effectively the 

same as if the merged firm were to 

divest the required amount of spectrum. 

A. Timing of Divestitures 

In antitrust cases involving mergers or 

joint ventures in which plaintiff United 

States seeks a divestiture remedy, it 

requires completion of the divestitures 

within the shortest time period 

reasonable under the circumstances. 

The proposed Final Judgment in this 

case requires, in Section IV.A, 

divestiture of the Divestiture Assets, 

within 120 days after the filing of the 

Complaint, or five days after notice of 

the entry of the Final Judgment by the 

Court, whichever is later. Plaintiff 

United States in its sole discretion upon 

consultation with any relevant plaintiff 

state may extend the date for divestiture 

of the Divestiture Assets by up to 60 

days. Because the FCC’s approval is 

required for the transfer of the wireless 

licenses to a purchaser, Section IV.A 

provides that if applications for transfer 

of a wireless license have been filed 

with the FCC, but the FCC has not acted 

dispositively before the end of the 

required divestiture period, the period 

for divestiture of those assets shall be 

extended until five days after the FCC 

has acted. This extension is to be 

applied only to the individual 

Divestiture Assets affected by the delay 

in approval of the license transfer and 

does not entitle defendants to delay the 

divestiture of any other Divestiture 

Assets for which license transfer 

approval has been granted. 

The divestiture timing provisions of 

the proposed Final Judgment will 

ensure that the divestitures are carried 

out in a timely manner, and at the same 

time will permit defendants an adequate 

opportunity to accomplish the 

divestitures through a fair and orderly 

process. Even if all Divestiture Assets 

have not been divested upon 

consummation of the transaction, there 

should be no adverse impact on 

competition given the limited duration 

of the period of common ownership and 

the detailed requirements of the 

Preservation of Assets Stipulation and 

Order. 

B. Use of a Management Trustee 

The Preservation of Assets Stipulation 

and Order, entered by the Court on 

October 26, 2004, ensures, prior to 

divestiture, that the Divestiture Assets 

are maintained and the Wireless 

Business Divestiture Assets remain an 

ongoing business concern and that the 

other Divestiture Assets remain 

economically viable. The Divestiture 

Assets will remain preserved, 

independent and uninfluenced by 

defendants, so that competition is 

maintained during the pendency of the 

ordered divestiture. 

The Preservation of Assets Stipulation 

and Order appoints a management 

trustee selected by plaintiff United 

States upon consultation with plaintiff 

states to oversee the Divestiture Assets 

in the relevant geographic markets. The 

appointment of a management trustee in 

this unique situation is required because 

the Divestiture Assets are not 

independent facilities that can be held 

separate and operated as standalone 

units by the merged firm. Rather, the 

Wireless Business Divestiture Assets are 

an integral part of a nationwide 

network, and to maintain their 

competitive viability and economic 

value, they should remain part of that 

network during the divestiture period. 

To ensure that these assets are preserved 

and supported by defendants during 

this period, yet run independently, a 

management trustee is necessary to 

oversee the continuing relationship 

between defendants and these assets. 

The management trustee will have the 

power to operate the Wireless Business 

Divestiture Assets in the ordinary 

course of business, so that they will 

remain preserved, independent, and 

uninfluenced by defendants, and an 

ongoing and economically viable 

competitor to defendants and to other 

mobile wireless services providers. The 

management trustee will preserve the 

confidentiality of competitively 

sensitive marketing, pricing, and sales 

information; insure defendants’

compliance with the Preservation of 

Assets Stipulation and Order and the 

proposed Final Judgment; and maximize 

the value of the Divestiture Assets so as 

to permit expeditious divestiture in a 

manner consistent with the proposed 

Final Judgment. 

The Preservation of Assets Stipulation 

and Order provides that defendants will 

pay all costs and expenses of the 

management trustee, including the cost 

of consultants, accountants, attorneys, 

and other representatives and assistants 

hired by the management trustee as are 

reasonably necessary to carry out his or 

her duties and responsibilities. After his

65638 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

or her appointment becomes effective, 

the management trustee will file 

monthly reports with plaintiffs setting 

forth the efforts to accomplish the goals 

of the Preservation of Assets Stipulation 

and Order and the proposed Final 

Judgment and the extent to which 

defendants are fulfilling their 

responsibilities. Finally, the 

management trustee may become the 

divestiture trustee, pursuant to the 

provisions of Section V of the proposed 

Final Judgment. 

C. Use of a Divestiture Trustee 

In the event that defendants do not 

accomplish the divestiture within the 

periods prescribed in the proposed 

Final Judgment, the Final Judgment 

provides that the Court will appoint a 

trustee selected by plaintiff United 

States upon consultation with any 

relevant plaintiff state to effect the 

divestitures. As part of this divestiture, 

defendants must relinquish any direct 

or indirect financial ownership interests 

and any direct or indirect role in 

management or participation in control. 

Pursuant to Section V of the proposed 

Final Judgment, the divestiture trustee 

will own and control the systems until 

they are sold to a final purchaser, 

subject to safeguards to prevent 

defendants from influencing their 

operation.

Section V details the requirements for 

the establishment of the divestiture 

trust, the selection and compensation of 

the divestiture trustee, the 

responsibilities of the divestiture trustee 

in connection with the divestiture and 

operation of the Divestiture Assets, and 

the termination of the divestiture trust. 

The divestiture trustee will have the 

obligation and the sole responsibility, 

under Section V.D, for the divestiture of 

any transferred Divestiture Assets. The 

divestiture trustee has the authority to 

accomplish divestitures at the earliest 

possible time and ‘‘at the best price then 

obtainable upon a reasonable effort by 

the trustee.’’ In addition, to insure that 

the divestiture trustee can promptly 

locate and divest to an acceptable 

purchaser, plaintiff United States, in its 

sole discretion upon consultation with 

any relevant plaintiff state, may require 

defendants to include additional assets, 

or allow defendants to substitute 

substantially similar assets, which 

substantially relate to the Wireless 

Business Divestiture Assets to be 

divested by the divestiture trustee. 

The divestiture trustee will not only 

have responsibility for sale of the 

Divestiture Assets, but will also be the 

authorized holder of the wireless 

licenses, with full responsibility for the 

operations, marketing, and sales of the 

wireless businesses to be divested, and 

will not be subject to any control or 

direction by defendants. Defendants 

will no longer have any role in the 

ownership, operation, or management of 

the Divestiture Assets following 

consummation of the transaction, as 

provided by Section V, other than the 

right to receive the proceeds of the sale, 

and certain obligations to provide 

support to the Divestiture Assets, and 

cooperate with the divestiture trustee in 

order to complete the divestiture, as 

indicated in Section VI.L and in the 

Preservation of Assets Stipulation and 

Order. 

The proposed Final Judgment 

provides that defendants will pay all 

costs and expenses of the divestiture 

trustee. The divestiture trustee’s 

commission will be structured, under 

Section V.G of the proposed Final 

Judgment, so as to provide an incentive 

for the divestiture trustee based on the 

price obtained and the speed with 

which the divestitures are 

accomplished. After his or her 

appointment becomes effective, the 

divestiture trustee will file monthly 

reports with the Court and plaintiffs 

setting forth his or her efforts to 

accomplish the divestitures. Section V.J 

requires the divestiture trustee to divest 

the Divestiture Assets to an acceptable 

purchaser or purchasers no later than 

six months after the assets are 

transferred to the divestiture trustee. At 

the end of six months, if all divestitures 

have not been accomplished, the 

trustee, plaintiff United States, and any 

relevant plaintiff state will make 

recommendations to the Court, which 

shall enter such orders as appropriate in 

order to carry out the purpose of the 

trust, including extending the trust or 

term of the trustee’s appointment. 

The divestiture provisions of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

transaction in the provision of mobile 

wireless telecommunications services 

and mobile wireless broadband services. 

The divestitures of the Wireless 

Business Divestiture Assets and the 

Minority Interests will preserve 

competition in mobile wireless 

telecommunications services by 

maintaining an independent and 

economically viable competitor in the 

relevant geographic markets. The 

divestiture of the Spectrum Divestiture 

Assets will preserve competition in 

mobile wireless broadband services by 

making assets available to establish a 

new, independent, and economically 

viable 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 

Plaintiffs and defendants have 

stipulated that the proposed Final 

Judgment may be entered by a Court 

after compliance with the provisions of 

the APPA, provided that plaintiffs have 

not withdrawn their consent. The APPA 

conditions entry upon the Court’s 

determination that the proposed Final 

Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to plaintiff 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. All comments 

received during this period will be 

considered by the Department of Justice, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to the Court’s entry of 

judgment. The comments and the 

response of plaintiff United States will 

be filed with the Court and published in 

the Federal Register.

Written comments should be 

submitted to: Nancy M. Goodman, 

Chief, Telecommunications and Media 

Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530. The proposed 

Final Judgment provides that the Court 

retains jurisdiction over this action, and 

the parties may apply to the Court for 

any order necessary or appropriate for 

the modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

Plaintiff United States considered, as 

an alternative to the proposed Final

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65639

1See United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (recognizing it was not the 

court’s duty to settle; rather, the court must only 

answer ‘‘whether the settlement achieved [was] 

within the reaches of the public interest’’). A 

‘‘public interest’’ determination can be made 

properly on the basis of the Competitive Impact 

Statement and Response to Comments field by the 

Department of Justice pursuant to the APPA. 

Although the APPA authorizes the use of additional 

procedures, 15 U.S.C. 16(f), those procedures are 

discretionary. A court need not invoke any of them 

unless it believes that the comments have raised 

significant issues and that further proceedings 

would aid the court in resolving those issues. See

H.R. Rep. No. 93–1463, 93d Cong., 2d Sess. 8–9 

(1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538–

39.

2Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); Gillette, 406 F. Supp. at 716 (noting that, 

in this way, the court is constrained to ‘‘look at the 

overall picture not hypercritically, nor with a 

microscope, but with an artist’s reducing glass’’); 

see generally Microsoft, 56 F.3d at 1461 (discussing 

whether ‘‘the remedies [obtained in the decree are] 

so inconsonant with the allegations charged as to 

fall outside of the ‘reaches of the public interest’ ’’).

Judgment, a full trail on the merits 

against defendants. Plaintiff United 

States could have continued the 

litigation and sought preliminary and 

permanent injunctions against 

Cingular’s acquisition of AT&T 

Wireless. Plaintiff United States is 

satisfied, however, that the divestiture 

of assets and other relief described in 

the proposed Final Judgment will 

preserve competition for the provision 

of mobile wireless telecommunications 

services and mobile wireless broadband 

services in the relevant markets 

identified in the Complaint. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a sixty-day comment period, after 

which the Court shall determine 

whether entry of the proposed Final 

Judgment ‘‘is in the public interest.’’ 15 

U.S.C. 16(e)(1). In making that 

determination, the Court shall consider:

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration or relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). As the 

United States Court of Appeals for the 

District of Columbia Circuit has held, 

the APPA permits a court to consider, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s compliant, whether the 

consent judgment is sufficiently clear, 

whether enforcement mechanisms are 

sufficient, and whether the consent 

judgment may positively harm third 

parties. See United States v. Microsoft 

Corp., 56 F.3d 1448, 1458–62 (D.C. Cir. 

1995). 

‘‘Nothing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2). Thus, in 

conducting this inquiry, ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Senator Tunney).1 Rather:

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances.

United States v. Mid-America 

Dairymen, Inc., 1977–1 Trade Cas. 

(CCH) ¶61,508, at 71,980 (W.D. Mo. 

1977). 

Accordingly, with respect to the 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘engage in an unrestricted 

evaluation of what relief would best 

serve the public.’’ United States v. BNS 

Inc., 858 F.2d 456, 462 (9th Cir. 1988) 

(citing United States v. Bechtel Corp., 

648 F.2d 660, 666 (9th Cir. 1981)); see 

also Microsoft, 56 F.3d at 1460–62. 

Courts have held that:

[t]he balancing of competing social and 

political interest affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree.

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2

The proposed Final Judgment, 

therefore, should not be reviewed under 

a standard of whether it is certain to 

eliminate every anticompetitive effect of 

a particular practice or whether it 

mandates certainty of free competition 

in the future. Court approval of a final 

judgment requires a standard more 

flexible and less strict than the standard 

required for a finding of liability. ‘‘[A] 

proposed decree must be approved even 

if it falls short of the remedy the court 

would impose on its own, as long as it 

falls within the range of acceptability or 

is ‘within the reaches of public 

interest.’ ’’ United States v. AT&T Corp., 

552 F. Supp. 131, 151 (D.D.C. 1982) 

(citations omitted) (quoting Gillette, 406 

F. Supp. at 716), aff’d sub nom. 

Maryland v. United States, 460 U.S. 

1001 (1983); see also United States v. 

Alcan Aluminum Ltd., 605 F. supp. 619, 

622 (W.D. Ky. 1985) (approving the 

consent judgment even though the court 

would have imposed a greater remedy). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

a case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

the decree itself,’’ and not to ‘‘effectively 

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60.

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by plaintiff 

United States in formulating the 

proposed Final Judgment.

Dated: October 29, 2004.

Respectfully submitted, 

/s/ lllllllllllllllllll

Hillary B. Burchuk, (D.C. Bar # 366755)

Matthew C. Hammond 

David T. Blonder 

Benjamin Brown 

Michael D. Chaleff 

Benjamin Giliberti 

Jeremiah M. Luongo 

Lorenzo McRae (D.C. Bar # 473660)

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, City Center Building, 

1401 H Street, NW., Suite 8000, Washington, 

DC 20530, (202) 514–5621, Facsimile: (202) 

514–6381.

65640 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

Certificate of Service 

I hereby certify that copies of the 

Competitive Impact Statement have 

been mailed, by U.S. mail, postage 

preparid, to the attorneys listed below, 

the 29th day of October 2004.

Richard L. Rosen, Esq., Arnold & Porter LLP, 

555 Twelfth St., NW, Washington, DC 

20004. 

Counsel For Defendants Cingular Wireless 

Corporation and SBC Communications, Inc. 

Stephen M. Axinn, Esq., Axinn, Veltrop & 

Harkrider LLP, 1801 K St., NW, 

Washington, DC 2006. 

Counsel For Defendants Cingular Wireless 

Corporation and BellSouth Corporation. 

Ilene Knable Gotts, Esq., Wachtell, Lipton, 

Rosen & Katz51 West 52nd Street, New 

York, NY 10019. 

Counsel for Defendant AT&T Wireless 

Services, Inc. 

John T. Prud’homme, Jr., Esq, Assistant 

Attorney General, Antitrust and Civil 

Medicare Fraud Department, Office of the 

Attorney General, 300 West 15th Street, 9th 

Floor, Austin, Texas 78701. 

Counsel for Plaintiff State of Texas. 

Rachel O. Davis, Esq., Assistant Attorney 

General, Antitrust Department, 55 Elm 

Street, Hartford, Connecticut 06106. 

Counsel for Plaintiff State of Connecticut. 

/s/ lllllllllllllllllll

Hillary B. Burchuk (D.C. Bar # 366755)

Matthew C. Hammond

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, City Center Building, 

1401 H Street, NW., Suite 8000, Washington, 

DC 20530, (202) 514–5621, Facsimile: (202) 

514–6381.

In the United States District Court for 

the District of Columbia 

United States of America, State of 

Connecticut and State of Texas, 

Plaintiffs, v. Cingular Wireless 

Corporation, SBC Communications Inc., 

BellSouth Corporation and AT&T 

Wireless Services, Inc., Defendants; 

Final Judgment 

Civil No.: 1:04CV01850 (RBW) 

Filed: November 3, 2004

Whereas, plaintiffs, United States of 

America, and the states of Connecticut 

and Texas (‘‘plaintiff states’’), filed their 

Complaint on October 25, 2004, 

plaintiffs and defendants, Cingular 

Wireless Corporation, SBC 

Communications Inc., BellSouth 

Corporation and AT&T Wireless 

Services, Inc. (‘‘AT&T Wireless’’), by 

their respective attorneys, have 

consented to the entry of this Final 

Judgment without trial or adjudication 

of any issue of fact or law, and without 

this Final Judgment constituting any 

evidence against or admission by any 

party regarding any issue of fact or law; 

And Whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And Whereas, the essence of this 

Final Judgment is the prompt and 

certain divestiture of certain rights or 

assets by the defendants to assure that 

competition is not substantially 

lessened; 

And Whereas, plaintiffs require 

defendants to make certain divestitures 

for the purpose of remedying the loss of 

competition alleged in the Complaint; 

And Whereas, defendants have 

represented to plaintiffs that the 

divestitures required below can and will 

be made and that defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now Therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged and decreed:

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under Section 7 of 

the Clayton Act, 15 U.S.C. 18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

the entity or entities to whom 

defendants divest the Divestiture Assets.

B. ‘‘AT&T Wireless’’ means defendant 

AT&T Wireless Services, Inc., a 

Delaware corporation with headquarters 

in Redmond, Washington, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

C. ‘‘BellSouth’’ means defendant 

BellSouth Corporation, a Georgia 

corporation with headquarters 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. 

D. ‘‘Cingular’’ means defendant 

Cingular Wireless Corporation, a 

Delaware corporation with headquarters 

in Atlanta, Georgia, and Cingular 

Wireless LLC, a Delaware limited 

liability company formed as a joint 

venture between SBC and BellSouth, 

with headquarters in Atlanta, Georgia, 

their successors and assigns, and their 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘Divestiture Assets’’ means 

Wireless Business Divestiture Assets, 

Spectrum License Divestiture Assets, 

and Minority Interests, including any 

direct or indirect financial ownership or 

leasehold interests and any direct or 

indirect role in management or 

participation in control therein. 

F. ‘‘Minority Interests’’ means the 

equity interests owned by any defendant 

in the following entities that are the 

licensees or operators of mobile wireless 

services businesses in the specified 

Metropolitan Statistical Areas (‘‘MSAs’’) 

and Rural Statistical Areas (‘‘RSAs’’) 

(collectively, Cellular Marketing Areas 

(‘‘CMAs’’)) used to define cellular 

license areas by the Federal 

Communications Commission (‘‘FCC’’): 

(1) Alltel Communications of North 

Louisiana Cellular Limited Partnership, 

covering the Shreveport, Louisiana MSA 

(CMA 100), Monroe, Louisiana MSA 

(CMA 219), Louisiana RSA–1 (CMA 

454), Louisiana RSA–2 (CMA 455) and 

Louisnana RSA–3 (CMA 456); 

(2) Athens Cellular Inc., covering the 

Athens, Georgia MSA (CMA 234); 

(3) CellTelCo, covering the St. Joseph, 

Missouri MSA (CMA 275); 

(4) Pittsfield Cellular Telephone Co., 

covering the Pittsfield, Massachusetts 

MSA (CMA 213); and 

(5) Topeka Cellular Telephone Co., 

Inc., covering the Topeka, Kansas MSA 

(CMA 179). 

As an alternative to the divestiture of 

the Alltel Communications of North 

Louisiana Cellular Limited Partnership, 

CellTelCo, and Topeka Cellular 

Telephone Co., Inc. Minority Interests as 

required by Section IV of this Final 

Judgment, defendants may request, at 

least 20 days prior to consummation of 

the Transaction, approval from plaintiff 

United States to retain such interests. 

Plaintiff United States in its sole 

discretion may approve this request if it 

is demonstrated that the retained 

minority interest will become 

irrevocably and entirely passive, so long 

as defendants own the minority 

interests, and will not significantly 

diminish competition. 

G. ‘‘Multi-line Business Customer’’

means a corporate or business customer 

that contracts with AT&T Wireless for 

mobile wireless services to provide 

multiple telephones to its employees or 

members whose services are provided 

pursuant to a contract with a corporate 

or business customer. 

H. ‘‘SBC’’ means defendant SBC 

Communications Inc., a Delaware 

corporation with headquarters in San

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65641

Antonio, Texas, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

I. ‘‘Skagit’’ means Skagit Wireless 

LLC, an Oregon corporation with 

headquarters in Portland, Oregon, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

J. ‘‘Spectrum License Divestiture 

Assets’’ means a license for 10 MHz of 

contiguous PCS spectrum in the 

specified MSAs and Basic Trading 

Areas (‘‘BTAs’’) used to define cellular 

and PCS license areas by the FCC: 

(1) The Dallas-Fort Worth, Texas MSA 

(CMA 009); 

(2) The Detroit, Michigan BTA (BTA 

112), provided that the license to be 

transferred does not have to include any 

PCS spectrum in Monroe and Sanilac 

counties; and 

(3) The Knoxville, Tennessee BTA 

(BTA 232), provided that as an 

alternative to the divestiture of a license 

for 10 MHz of contiguous PCS spectrum 

as required by Section IV of this Final 

Judgment, defendants, with the 

approval of plaintiff United States in its 

sole discretion, can restructure AT&T 

Wireless’s existing relationship with 

Skagit such that (i) defendants have no 

equity or leasehold interest in, hold no 

debt of, and have no managerial or 

operational interest in Skagit’s PCS 

license in the Knoxville Tennessee BTA, 

and (ii) Skagit’s PCS license in the 

Knoxville Tennessee BTA is 

contractually committed to be used in a 

manner that resolve the competitive 

concerns alleged by plaintiffs in the 

Complaint. 

K. ‘‘Transaction’’ means the 

Agreement and Plan of Merger By and 

Among AT&T Wireless Services, Inc., 

Cingular Wireless Corporation, Cingular 

Wireless LLC, Links I Corporation, SBC 

Communications Inc., and BellSouth 

Corporation, dated February 17, 2004.

L. ‘‘Wireless Business Divestiture 

Assets’’ means, for each mobile wireless 

business to be divested under this Final 

Judgment, all types of assets, tangible 

and intangible, used by defendants in 

the operation of the mobile wireless 

businesses to be divested (including the 

provision of long distance 

telecommunications services for 

wireless calls). ‘‘Wireless Business 

Divestiture Assets’’ shall be construed 

broadly to accomplish the complete 

divestitures of the entire business of 

AT&T Wireless in each of the following 

MSA and RSA license areas as required 

by this Final Judgment and to ensure 

that the divested mobile wireless 

businesses remain viable, ongoing 

businesses: 

(a) Oklahoma City, Oklahoma MSA 

(CMA 045); 

(b) Connecticut RSA–1 (CMA 357), 

provided that defendants may retain 10 

MHz of AT&T Wireless’s PCS spectrum, 

provided that 10 MHz of contiguous 

PCS spectrum throughout the RSA is 

divested to an Acquirer; 

(c) Kentucky RSA–1 (CMA 443), 

provided that defendants may retain 15 

MHz of AT&T Wireless’s PCS spectrum 

in Fulton county and 10 MHz of AT&T 

Wireless’s PCS spectrum in the other 

counties contained within the RSA, 

provided that 30 MHz of contiguous 

PCS spectrum in Fulton county and 20 

MHz of contiguous PCS spectrum in the 

other counties contained in the RSA is 

divested to an Acquirer; 

(d) Oklahoma RSA–3 (CMA 598); and 

(e) Texas RSA–11 (CMA 662), 

provided that defendants may retain 25 

MHz of AT&T Wireless’s PCS spectrum 

in Sabine county, and 20 MHz of AT&T 

Wireless’s PCS spectrum in Angelina, 

Nacogdoches, and San Augustine 

counties, provided that 10 MHz of 

contiguous PCS spectrum throughout 

the RSA is divested to an Acquirer. 

Wireless Business Divestiture Assets 

shall include, without limitation, all 

types of real and personal property, 

monies and financial instruments, 

equipment, inventory, office furniture, 

fixed assets and furnishings, supplies 

and materials, contracts, agreements, 

leases, commitments, spectrum licenses 

issued by the FCC and all other licenses, 

permits and authorizations, operational 

support systems, cell sites, network 

infrastructure, switches, customer 

support and billing systems, interfaces 

with other service providers, business 

and customer records and information, 

customer contracts, customer lists, 

credit records, accounts, and historic 

and current business plans which relate 

primarily to the wireless business being 

divested, as well as any patents, 

licenses, sub-licenses, trade secrets, 

know-how, drawings, blueprints, 

designs, technical and quality 

specifications and protocols, quality 

assurance and control procedures, 

manuals and other technical 

information defendants supply to their 

own employees, customers, suppliers, 

agents, or licensees, and trademarks, 

trade names and service marks or other 

intellectual property, including all 

intellectual property rights under thirdparty licenses that are capable of being 

transferred to an Acquirer either in their 

entirety, for assets described in (1) 

below, or through a license obtained 

through or from the divesting defendant, 

for assets described in (2) below; 

provided that defendants shall only be 

required to divest Multi-line business 

Customer contracts, if 50 percent or 

more of the Multi-line Business 

Customer’s subscribers reside or work 

within any of the five (5) license areas 

described herein, and further, any 

subscribers who obtain mobile wireless 

services through any such contract 

retained by defendants and who are 

located within the five (5) geographic 

areas identified above, shall be given the 

option to terminate their relationship 

with defendants, without financial cost, 

within one year of the closing of the 

Transaction. Defendants shall provide 

written notice to these subscribers 

within 45 days after the closing of the 

Transaction. 

These divestitures of the Wireless 

Business Divestiture Assets shall be 

accomplished by: 

(1) Transferring to the Acquirers the 

complete ownership and/or other rights 

to the assets (other than those assets 

used substantially in the operations of 

AT&T Wireless’s overall wireless 

business which must be retained to 

continue the existing operations of the 

wireless properties that defendants are 

not required to divest, and that either 

are not capable of being divided 

between the divested wireless 

businesses and those not divested, or 

are assets that the defendants and the 

Acquirer(s) agree, subject to approval of 

plaintiff United States upon 

consultation with any relevant plaintiff 

state, shall not be divided); and 

(2) Granting to the Acquirer(s) an 

option to obtain a non-exclusive, 

transferable license from defendants for 

a reasonable period, subject to approval 

of plaintiff United States upon 

consultation with any relevant plaintiff 

state, at the election of an Acquirer to 

use any of AT&T Wireless’s retained 

assets under paragraph (1) above, used 

in the operation of the wireless business 

being divested, so as to enable the 

Acquirer to continue to operate the 

divested wireless business without 

impairment. Defendants shall identify 

in a schedule submitted to plaintiffs and 

filed with the Court, as expeditiously as 

possible following the filing of the 

Complaint and in any event prior to any 

divestitures and before the approval by 

the Court of this Final Judgment, any 

intellectual property rights under thirdparty licenses that are used by the 

wireless businesses being divested but 

that defendants could not transfer to an 

Acquirer entirely or by license without 

third-party consent, and the specific 

reasons why such consent is necessary 

and how such consent would be 

obtained for each asset.

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III. Applicability 

A. This Final Judgment applies to 

defendants Cingular, SBC, BellSouth 

and AT&T Wireless, as defined above, 

and all other persons in active concert 

or participation with any of them who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

B. Defendants shall require, as a 

condition of the sale or other 

disposition of all or substantially all of 

their assets or of lesser business units 

that include the Divestiture Assets, that 

the purchaser agrees to be bound by the 

provisions of this Final Judgment, 

provided that defendants need not 

obtain such an agreement from the 

Acquirer(s). 

IV. Divestitures 

A. Defendants are ordered and 

directed, within 120 days after 

consummation of the Transaction, or 

five (5) days after notice of entry of this 

Final Judgment, whichever is later, to 

divest the Divestiture Assets to an 

Acquirer or Acquirers acceptable to 

plaintiff United States in its sole 

discretion upon consultation with any 

relevant plaintiff state, and, if 

applicable, to a Divestiture Trustee 

designated pursuant to Section V of this 

Final Judgment. Plaintiff United States, 

in its sole discretion upon consultation 

with any relevant plaintiff state, may 

agree to one or more extensions of this 

time period not to exceed 60 days in 

total, and shall notify the Court in such 

circumstances. With respect to 

divestiture of the Divestiture Assets by 

defendants or the Divestiture Trustee, if 

applications have been filed with the 

FCC within the period permitted for 

divestiture seeking approval to assign or 

transfer licenses to the Acquirer(s) of the 

Divestiture Assets, but an order or other 

dispositive action by the FCC on such 

applications has not been issued before 

the end of the period permitted for 

divestiture, the period shall be extended 

with respect to divestiture of those 

Divestiture Assets for which FCC 

approval has not been issued until five 

(5) days after such approval is received. 

Defendants agree to use their best efforts 

to accomplish the divestitures set forth 

in this Final Judgment and to seek all 

necessary regulatory approvals as 

expeditiously as possible. This Final 

Judgment does not limit the FCC’s 

exercise of its regulatory powers and 

process with respect to the Divestiture 

Assets. Authorization by the FCC to 

conduct the divestiture of a Divestiture 

Asset in a particular manner will not 

modify any of the requirements of this 

decree. 

B. In accomplishing the divestitures 

ordered by this Final Judgment, 

defendants shall promptly make known, 

if they have not already done so, by 

usual and customary means, the 

availability of the Divestiture Assets. 

Defendants shall inform any person 

making inquiry regarding a possible 

purchase of the Divestiture Assets that 

they are being divested pursuant to this 

Final Judgment and provide that person 

with a copy of this Final Judgment. 

Defendants shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client or work 

productive privileges. Defendants shall 

make available such information to 

plaintiffs at the same time that such 

information is made available to any 

other person. 

C. Defendants shall provide to the 

Acquirer(s) and plaintiffs information 

relating to the personnel involved in the 

operation, development, and sale of the 

Wireless Business Divestiture Assets to 

enable the Acquirer(s) to make offers of 

employment. Defendants will not 

interfere with any negotiations by the 

Acquirer(s) to employ any defendant 

employee whose primary responsibility 

is the operation, development, and sale 

of the Wireless Business Divestiture 

Assets.

D. Defendants shall permit 

prospective Acquirers of the Divestiture 

Assets to have reasonable access to 

personnel and to make inspections of 

the Divestiture Assets; access to any and 

all environmental, zoning, and other 

permit documents and information; and 

access to any and all financial, 

operational, and other documents and 

information customarily provided as 

part of a due diligence process. 

E. Defendants shall warrant to all 

Acquirer(s) that (1) each asset of the 

Wireless Business Divestiture Assets 

will be operational on the date of sale, 

and (2) every wireless spectrum license 

is in full force and effect on the date of 

sale. 

F. Defendants shall not take any 

action that will impede in any way the 

permitting, licensing, operation, or 

divestiture of the Divestiture Assets. 

G. Defendants shall warrant to the 

Acquirer(s) of the Divestiture Assets that 

there are no material defects in the 

environmental, zoning, licensing or 

other permits pertaining to the 

operation of each assets, and that 

following the sale of the Divestiture 

Assets, defendants will not undertake, 

directly or indirectly, any challenges to 

the environmental, zoning, licensing or 

other permits relating to the operation of 

the Divestiture Assets. 

H. Unless plaintiff United States 

otherwise consents in writing, upon 

consultation with any relevant plaintiff 

state, the divestitures pursuant to 

Section IV, or by a Divestiture Trustee 

appointed pursuant to Section V of this 

Final Judgment, shall include the entire 

Divestiture Assets and with respect to 

the Wireless Business Divestiture Assets 

and Spectrum License Divestiture 

Assets, shall be accomplished in such a 

way as to satisfy plaintiff United States, 

in its sole discretion upon consultation 

with any relevant plaintiff state, that 

these assets can and will be used by the 

Acquirer(s) as part of a viable, ongoing 

business engaged in the provision of 

mobile wireless services. Divestiture of 

the Divestiture Assets may be made to 

one or more Acquirers, provided that in 

each instance it is demonstrated to the 

sole satisfaction of plaintiff United 

States upon consultation with any 

relevant plaintiff state, that the 

Divestiture Assets will remain viable 

and the divestiture of such assets will 

remedy the competitive harm alleged in 

the Complaint. The divestitures of the 

Wireless Business Divestiture Assets 

and Spectrum License Divestiture 

Assets, whether pursuant to Section IV 

or Section V of this Final Judgment, 

(1) Shall be made to an Acquirer (or 

Acquirers) that, in plaintiff United 

State’s sole judgment upon consultation 

with any relevant plaintiff state, has the 

intent and capability (including the 

necessary managerial, operational, 

technical, and financial capability) of 

competing effectively in the provision of 

mobile wireless services; and 

(2) Shall be accomplished so as to 

satisfy plaintiff United States in its sole 

discretion upon consultation with any 

relevant plaintiff state, that none of the 

terms of any agreement between the 

Acquirer (or Acquirers) and any 

defendant shall give defendants the 

ability unreasonably to raise the 

Acquirer’s costs, to lower the Acquirer’s 

efficiency, or otherwise to interfere with 

the ability of the Acquirer to compete 

effectively. 

I. At the option of the Acquirer(s), 

defendants shall enter into a contract for 

transition services customarily provided 

in connection with the sale of a business 

providing mobile wireless services 

sufficient to meet all or part of the needs 

of the Acquirer’(s) needs for a period of 

up to one year. The terms and 

conditions of any contractual 

arrangement meant to satisfy this 

provision must be reasonably related to 

market conditions.

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65643

J. To the extent that the mobile 

wireless businesses to be divested use 

intellectual property, as required to be 

identified by Section II.L, that cannot be 

transferred or assigned without the 

consent of the licensor or other third 

parties, defendants shall use their best 

efforts to obtain those consents. 

K. In the event plaintiff United States 

approves retention of any Minority 

Interests, defendants shall not obtain 

any additional equity interest in such 

entity.

V. Appointment of Divestiture Trustee 

A. If defendants have not divested the 

Divestiture Assets within the time 

period specified in Section IV.A, 

defendants shall notify plaintiff United 

States and any relevant plaintiff state of 

that fact in writing, specifically 

identifying the Divestiture Assets that 

have not been divested. Then, upon 

application of plaintiff United States, 

upon consultation with any plaintiff 

state, the Court shall appoint a 

Divestiture Trustee selected by plaintiff 

United States and approved by the 

Court to effect the divestiture of the 

Divestiture Assets. The Divestiture 

Trustee, will have all the rights and 

responsibilities of the Management 

Trustee appointed pursuant to the 

Preservation of Assets Stipulation and 

Order, and will be responsible for: 

(1) Accomplishing divestiture of all 

Divestiture Assets transferred to the 

Divestiture Trustee from defendants, in 

accordance with the terms of this final 

Judgment, to an Acquirer or Acquirers 

approved by plaintiff United States, 

upon consultation with any relevant 

plaintiff state, under Sections IV.A and 

IV.C of this Final Judgment, and 

(2) Exercising the responsibilities of 

the licensee of any transferred 

Divestiture Assets and controlling and 

operating any transferred Wireless 

Business Divestiture Assets, to ensure 

that the businesses remain ongoing, 

economically viable competitors in the 

provision of mobile wireless services in 

the five (5) license areas specified in the 

Wireless Business Divestiture Assets, 

until they are divested to an Acquirer or 

Acquirers, and the Divestiture Trustee 

shall agree to be bound by this Final 

Judgment. 

B. Defendants shall submit a proposed 

trust agreement (‘‘Trust Agreement’’) to 

plaintiff United States and any relevant 

plaintiff state, which must be consistent 

with the terms of this Final Judgment 

and which must receive approval by 

plaintiff United States in its sole 

discretion, upon consultation with any 

relevant plaintiff state, who shall 

communicate to defendants within ten 

(10) business days its approval or 

disapproval of the proposed Trust 

Agreement, and which must be 

executed by the defendants and the 

Divestiture Trustee within five (5) 

business days after approval by plaintiff 

United States; and 

C. After obtaining any necessary 

approvals from the FCC for the 

assignment of the licenses of the 

remaining Divestiture Assets to the 

Divestiture Trustee, defendants shall 

irrevocably divest the remaining 

Divestiture Assets to the Divestiture 

Trustee, who will own such assets (or 

own the stock of the entity owning such 

assets, if divestiture is to be effected by 

the creation of such an entity for sale to 

Acquirer(s)) and control such assets, 

subject to the terms of the approved 

Trust Agreement. 

D. After the appointment of a 

Divestiture Trustee becomes effective, 

only the Divestiture Trustee shall have 

the right to sell the Divestiture Assets. 

The Divestiture Trustee shall have the 

power and authority to accomplish the 

divestiture to an Acquirer(s) acceptable 

to plaintiff United States, in its sole 

judgment upon consultation with any 

relevant plaintiff state, at such price and 

on such terms as are then obtainable 

upon reasonable effort by the 

Divestiture Trustee, subject to the 

provisions of Sections IV, V, and VI of 

this Final Judgment, and shall have 

such other powers as this Court deems 

appropriate. Subject to Section V.G of 

this Final Judgment, the Divestiture 

Trustee may hire at the cost and 

expense of defendants the Management 

Trustee appointed pursuant to the 

Preservation of Assets Stipulation and 

Order, and any investment bankers, 

attorneys or other agents, who shall he 

solely accountable to the Divestiture 

Trustee, reasonably necessary in the 

Divestiture Trustee’s judgment to assist 

in the divestiture. 

E. In addition, notwithstanding any 

provision to the contrary, plaintiff 

United States, in its sole discretion 

upon consultation with any relevant 

plaintiff state, may require defendants to 

include additional assets, or allow, with 

the written approval of plaintiff United 

States, defendants to substitute 

substantially similar assets, which 

substantially relate to the Wireless 

Business Divestiture Assets to be 

divested by the Divestiture Trustee to 

facilitate prompt divestiture to an 

acceptable Acquirer. 

F. Defendants shall not object to a sale 

by the Divestiture Trustee on any 

ground other than the Divestiture 

Trustee’s malfeasance. Any such 

objections by defendants must be 

conveyed in writing to plaintiff United 

States, any relevant plaintiff state, and 

the Divestiture Trustee within ten (10) 

calendar days after the Divestiture 

Trustee has provided the notice 

required under Section VI.

G. The Divestiture Trustee shall serve 

at the cost and expense of defendants, 

on such terms and conditions as 

plaintiff United States approves, and 

shall account for all monies derived 

from the sale of the assets sold and all 

costs and expenses so incurred. After 

approval by the Court of the Divestiture 

Trustee’s accounting, including fees for 

its services and those of any 

professionals and agents retained by the 

Divestiture Trustee, all remaining 

money shall be paid to defendants and 

the trust shall then be terminated. The 

compensation of the Divestiture Trustee 

and any professionals and agents 

retained by the Divestiture Trustee shall 

be reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the Divestiture 

Trustee with an incentive based on the 

price and terms of the divestiture, and 

the speed with which it is 

accomplished, but timeliness is 

paramount. 

H. Defendants shall use their best 

efforts to assist the Divestiture Trustee 

in accomplishing the required 

divestitures including their best efforts 

to effect all necessary regulatory 

approvals and will provide any 

necessary representations or warranties 

as appropriate related to sale of the 

Divestiture Assets. The Divestiture 

Trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the Divestiture 

Trustee shall have full and complete 

access to the personnel, books, records, 

and facilities of the business to be 

divested, and defendants shall develop 

financial and other information relevant 

to the assets to be divested as the 

Divestiture Trustee may reasonably 

request, subject to reasonable protection 

for trade secret or other confidential 

research, development, or commercial 

information. Defendants shall take no 

action to interfere with or to impede the 

Divestiture Trustee’s accomplishment of 

the divestitures.

I. After its appointment, the 

Divestiture Trustee shall file monthly 

reports with plaintiff United states, any 

relevant plaintiff state, and the Court 

setting forth the Divestiture Trustee’s 

efforts to accomplish the divestitures 

ordered under this Final Judgment. To 

the extent such reports contain 

information that the Divestiture Trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding

65644 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring, any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person. The 

Divestiture Trustee shall maintain full 

records of all efforts made to divest the 

Divestiture Assets. 

J. If the Divestiture Trustee has not 

accomplished such divestitures within 

six months after its appointment, the 

Divestiture Trustee shall promptly file 

with the Court a report setting forth (1) 

the Divestiture Trustee’s efforts to 

accomplish the required divestitures, (2) 

the reasons, in the Divestiture Trustee’s 

judgment, why the required divestitures 

have not been accomplished, and (3) the 

Divestiture Trustee’s recommendations. 

To the extent such reports contain 

information that the Divestiture Trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. The Divestiture Trustee shall at 

the same time furnish such report to the 

plaintiff United States and any relevant 

plaintiff state who shall have the right 

to make additional recommendations 

consistent with the purpose of the trust. 

The Court thereafter shall enter such 

orders as it shall deem appropriate to 

carry out the purpose of the Final 

Judgment, which may, if necessary, 

include extending the trust and the term 

of the Divestiture Trustee’s appointment 

by a period requested by plaintiff 

United States upon consultation with 

any relevant plaintiff state. 

K. After defendants transfer the 

Divestiture Assets to the Divestiture 

Trustee, and until those Divestiture 

Assets have been divested to an 

Acquirer or Acquirers approved by 

plaintiff United States pursuant to 

Section IV.A and IV.H the Divestiture 

Trustee shall have sole and complete 

authority to manage and operate the 

Divestiture Assets and to exercise the 

responsibilities of the licensee, and 

shall not be subject to any control or 

direction by defendants. Defendants 

shall not retain any economic interest in 

the Divestiture Assets transferred to the 

Divestiture Trustee, apart from the right 

to receive the proceeds of the sale or 

other disposition of the Divestiture 

Assets. 

L. The Divestiture Trustee shall 

operate the Wireless Business 

Divestiture Assets consistent with the 

Preservation of Assets Stipulation and 

Order and this Final Judgment, with 

control over operations, marketing and 

sales. Defendants shall not attempt to 

influence the business decisions of the 

Divestiture trustee concerning the 

operation and management of the 

Wireless business Divestiture Assets, 

and shall not communicate with the 

Divestiture Trustee concerning 

divestiture of the Divestiture Assets or 

take any action to influence, interfere 

with, or impede the Divestiture trustee’s 

accomplishment of the divestitures 

required by this Final Judgment, except 

that defendants may communicate with 

the Divestiture Trustee to the extent 

necessary for defendants to comply with 

this Final Judgment and to provide the 

Divestiture Trustee, if requested to do 

so, with whatever resources or 

cooperation may be required to 

complete divestiture of the Divestiture 

Assets and to carry out the requirements 

of the Preservation of Assets Stipulation 

and Order and this Final Judgment. 

Except as provided in this Final 

Judgment and the Preservation of Assets 

Stipulation and Order, in no event shall 

defendants provide to, or receive from, 

the Divestiture Trustee or the mobile 

wireless businesses under the 

Divestiture Trustee’s control any nonpublic or competitively sensitive 

marketing, sales, or pricing information 

relating to their respective mobile 

wireless businesses. 

VI. Notice of Proposed Divestitures 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendants or the 

Divestiture Trustee, whichever is then 

responsible for effecting the divestitures 

required herein, shall notify plaintiff 

United States and any relevant plaintiff 

state in writing of any proposed 

divestiture required by Section IV or V 

of this Final Judgment. If the Divestiture 

Trustee is responsible, it shall similarly 

notify defendants. The notice shall set 

forth the details of the proposed 

divestiture and list the name, address, 

and telephone number of each person 

not previously identified who offered or 

expressed an interest in or desire to 

acquire any ownership interest in the 

Divestiture Assets, together with full 

details of the same. 

B. Within fifteen (15) calendar days of 

receipt by plaintiff United States and 

any relevant plaintiff state of such 

notice, plaintiff United States and any 

relevant plaintiff state may request from 

defendants, the proposed Acquirer or 

Acquirers, any other third party, or the 

Divestiture Trustee if applicable 

additional information concerning the 

proposed divestiture, the proposed 

Acquirer or Acquirers, and any other 

potential Acquirer. Defendants and the 

Divestiture Trustee shall furnish any 

additional information requested within 

fifteen (15) calendar days of the receipt 

of the request, unless the parties shall 

otherwise agree.

C. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after plaintiff 

United States and any relevant plaintiff 

state have been provided the additional 

information requested from defendants, 

the proposed Acquirer or Acquirers, any 

third party, and the Divestiture Trustee, 

whichever is later, plaintiff United 

States, upon consultation with any 

relevant plaintiff state, shall provide 

written notice to defendants and the 

Divestiture Trustee, if there is one, 

stating whether or not it objects to the 

proposed divestiture. If plaintiff United 

States provides written notice that it 

does not object, the divestiture may be 

consummated, subject only to 

defendants’ limited right to object to the 

sale under Section V.F of this Final 

Judgment. Absent written notice that 

plaintiff United States does not object to 

the proposed Acquirer or upon 

objection by plaintiff United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by defendants under 

Section V.F, a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any divestiture made 

pursuant to Section IV or V of this Final 

Judgment. 

VIII. Preservation of Assets 

Until the divestitures required by this 

Final Judgment have been 

accomplished, defendants shall take all 

steps necessary to comply with the 

Preservation of Assets Stipulation and 

Order entered by this Court. Defendants 

shall take no action that would 

jeopardize the divestitures ordered by 

this Court. 

IX. Affidavits 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestitures 

have been completed under Section IV 

or V of this Final Judgment, defendants 

shall deliver to plaintiff United States 

and any relevant plaintiff state and 

affidavit as to the fact and manner of its 

compliance with Section IV or V of this 

Final Judgment. Each such affidavit 

shall include the name, address, and 

telephone number of each person who 

during the preceding thirty (30) days, 

made an offer to acquire, expressed an 

interest in acquiring, entered into 

negotiations to acquire, or was 

contacted or made an inquiry about 

acquiring, any interest in the Divestiture

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Assets, and shall describe in detail each 

contact with any such person during 

that period. Each such affidavit shall 

also include a description of the efforts 

defendants have taken to solicit buyers 

for the Divestiture Assets, and to 

provide required information to 

prospective Acquirers, including the 

limitations, if any, on such information. 

Assuming the information set forth in 

the affidavit is true and complete, any 

objection by plaintiff United States, after 

consultation with any relevant state, to 

information provided by defendants, 

including limitation on information, 

shall be made within fourteen (14) 

calendar days of receipt of such 

affidavit.

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, defendants shall deliver to 

plaintiff United States and any relevant 

plaintiff state an affidavit that describes 

in reasonable detail all actions 

defendants have taken and all steps 

defendants have implemented on an 

ongoing basis to comply with Section 

VIII of this Final Judgment. Defendants 

shall deliver to plaintiff United States 

and any relevant plaintiff state an 

affidavit describing any changes to the 

efforts and actions outlined in 

defendants’ earlier affidavits provided 

pursuant to this section within fifteen 

(15) calendar days after the change is 

implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestitures have been 

completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

duly authorized representatives of the 

United States Department of Justice, 

including consultants and other persons 

retained by the United States, shall, 

upon written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable notice to defendants, be 

permitted: 

(1) Access during defendants’ office 

hours to inspect and copy, or at plaintiff 

United States’ option, to require 

defendants provide copies of, all books, 

ledgers, accounts, records and 

documents in the possession, custody, 

or control of defendants, relating to any 

matters contained in this Final 

Judgment; and 

(2) To interview, either informally or 

on the record, defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

defendants. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by plaintiff 

United States to any person other than 

an authorized representative of the 

executive branch of the United States or, 

pursuant to a customary protective 

Order or waiver of confidentiality by 

defendants, the FCC, except in the 

course of legal proceedings to which the 

United States is a party (including grand 

jury proceedings), or for the purpose of 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

D. If at the time information or 

documents are furnished by defendants 

to plaintiff United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

26(c)(7) of the Federal Rules of Civil 

Procedure, and defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

Rule 26(c)(7) of the Federal Rules of 

Civil Procedure,’’ then plaintiff United 

States shall give defendants ten (10) 

calendar days notice prior to divulging 

such material in any legal proceeding 

(other than a grand jury proceeding).

XI. No Reacquisition 

Defendants may not reacquire or lease 

any part of the Divestiture Assets during 

the term of this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest.

Date: llllllllllllllllll

lllllllllllllllllllll

United States District Judge

In the United States District Court for 

the District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 1401 H 

Street, NW., Suite 8000, Washington, DC 

20530, State of Connecticut, Office of 

the Attorney General, 55 Elm Street, 

Hartford, CT 06106, and State of Texas, 

Office of the Attorney General, P.O. Box 

12548, Austin, TX 78711, Plaintiffs, v. 

Cingular Wireless Corporation, 5565 

Glenridge Connector, Atlanta, GA 

30349, SBC Communications Inc., 174 

East Houston, San Antonio, TX 78205, 

Bellsouth Corporation, 1155 Peachtree 

Street, NE., Atlanta, GA 30309, and 

AT&T Wireless Services, Inc., 7277 

164th Avenue, NE., Building 1, 

Redmond, WA 98052, Defendants; 

Complaint 

Civil No.: 1:04CV01850 (RBW) 

Filed: 10/25/04

The United States of America, acting 

under the direction of the Attorney 

General of the United States, and the 

states of Connecticut and Texas 

(‘‘plaintiff states’’), acting under the 

direction of their respective Attorneys 

General, or other authorized officials, 

bring this civil action to enjoin the 

merger of two of the largest mobile 

wireless telecommunications services 

providers in the United States, Cingular 

Wireless Corporation (‘‘Cingular’’) and 

AT&T Wireless Services, Inc. (‘‘AT&T 

Wireless’’), and to obtain other relief as 

appropriate. Plaintiffs allege as follows: 

1. On February 17, 2004, Cingular, a 

joint venture between SBC 

Communications Inc. (‘‘SBC’’) and 

BellSouth Corporation (‘‘BellSouth’’), 

entered into an agreement to acquire 

AT&T Wireless under which the two 

companies would combine their mobile 

wireless services businesses. Plaintiffs 

seek to enjoin this transaction because 

it will substantially lessen competition 

in several geographic markets for mobile 

wireless telecommunications services 

and mobile wireless broadband services 

(collectively, ‘‘mobile wireless 

services’’). 

2. Cingular and AT&T Wireless are 

the second and third-largest mobile 

wireless services providers in the

65646 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

United States, with approximately 24 

and 22 million subscribers, respectively. 

They both provide mobile wireless 

services in areas throughout the United 

States and are two of only six providers 

with a national presence. As a result, 

Cingular and AT&T Wireless both 

provide mobile wireless services in 

hundreds of overlapping geographic 

areas, and in 13 of these areas the 

combination of Cingular’s and AT&T 

Wireless’s assets and business will 

likely result in substantially less 

competition for mobile wireless 

services. In 10 of these overlapping 

geographic areas located in the states of 

Connecticut, Georgia, Kansas, Kentucky, 

Louisiana, Massachusetts, Missouri, 

Oklahoma, and Texas, the combination 

of Cingular and AT&T Wireless will 

substantially lessen competition for 

mobile wireless telecommunications 

services, increasing the likelihood of 

unilateral actions by the merged firm to 

increase prices, diminish the quality or 

quantity of services provided, refrain 

from or delay making investments in 

network improvements, and refrain 

from or delay launching new services, 

substantially lessening competition for 

these services. In three of these 

overlapping geographic areas located in 

the states of Michigan, Tennessee, and 

Texas, both Cingular and AT&T 

Wireless have launched or will likely 

soon launch mobile wireless broadband 

services, and the transaction will result 

in the loss of one of only a few existing 

and likely mobile wireless broadband 

services providers, substantially 

lessening competition for these services. 

I. Jurisdiction and Venue 

3. Complaint is filed by the United 

States under Section 15 of the Clayton 

Act, 15 U.S.C. 25, to prevent and 

restrain defendants from violating 

Section 7 of the Clayton Act, 15 U.S.C. 

18. 

4. Plaintiff states bring this action 

under Section 16 of the Clayton Act, 15 

U.S.C. 26, to prevent and restrain the 

violation by defendants of Section 7 of 

the Clayton Act, 15 U.S.C. 18. Plaintiff 

states, by and through their respective 

Attorneys General, or other authorized 

officials, bring this action in their 

sovereign capacities and as parens 

patriae on behalf of the citizens, general 

welfare, and economy of each of their 

states. 

5. Cingular, AT&T Wireless, SBC, and 

BellSouth are engaged in interstate 

commerce and in activities substantially 

affecting interstate commerce. The Court 

has jurisdiction over this action 

pursuant to Sections 15 and 16 of the 

Clayton Act, 15 U.S.C. 25, 26, and 28 

U.S.C. 1331, 1337.

6. Cingular, AT&T Wireless, SBC, and 

BellSouth transact business or are found 

in the District of Columbia. Venue is 

proper in this Court pursuant to Section 

12 of the Clayton Act, 15 U.S.C. 22 and 

28 U.S.C. 1391(b) and (c). 

II. The Defendants and the Transaction 

7. Cingular, which headquarters in 

Atlanta, Georgia, is a company 

organized and existing under the laws of 

the state of Delaware. Cingular was 

formed in 2000 by SBC and BellSouth, 

who own equity interests in it of 60 and 

40 percent, respectively, SBC and 

BellSouth evenly share management 

control of Cingular. Cingular is the 

second-largest provider of mobile 

wireless voice and data services in the 

United States by number of subscribers; 

it serves more than 24 million 

customers. In 2003, Cingular earned 

revenues of approximately $15.5 billion. 

8. SBC, with headquarters in San 

Antonio, Texas, is a corporation 

organized and existing under the laws of 

the state of Delaware. SBC is a regional 

bell operating company (‘‘RBOC’’), one 

of several regional holding companies 

formed in 1984 as a result of the 

breakup of AT&T Corporation’s local 

telephone business. SBC’s wireless 

telecommunications businesses serve 

54.7 million access lines in 13 states; 

Arkansas, California, Connecticut, 

Illinois, Indiana, Kansas, Michigan, 

Missouri, Nevada, Ohio, Oklahoma, 

Texas, and Wisconsin. In 2003, SBC 

earned approximately $40.8 billion in 

revenues. 

9. BellSouth, an RBOC with 

headquarters in Atlanta, Georgia, is a 

corporation organized and existing 

under the laws of the state of Georgia. 

BellSouth’s wireline 

telecommunications businesses serves 

23.7 million access lines in 9 states: 

Alabama, Florida, Georgia, Kentucky, 

Louisiana, Mississippi, North Caroline, 

South Carolina, and Tennessee. Its total 

operating revenues for 2003 were 

approximately $22.6 billion. 

10. AT&T Wireless, with headquarters 

in Redmond, Washington, is a 

corporation organized and existing 

under the laws of the state of Delaware. 

spun off from AT&T Corporation in 

2001, it had more than 22 million 

subscribers as of August 2004 an earned 

revenues of approximately $16.6 billion 

in 2003. AT&T Wireless is the thirdlargest U.S. mobile wireless services 

provider by number of subscribers. 

11. Pursuant to an Agreement and 

Plan of Merger dated February 17, 2004, 

Cingular will pay AT&T Wireless 

shareholders $15 per common share and 

thereby plans to acquire AT&T Wireless 

for approximately $41 billion in cash. If 

this transaction is consummated, 

Cingular and AT&T Wireless combined 

would have more than 46 million 

subscribers, with over $32 billion in 

revenues, making it the largest mobile 

wireless sevices provider in the United 

States, with operations in 49 states 

covering 97 of the top 100 marketing 

areas. 

III. Trade and Commerce 

A. Nature of Trade and Commerce 

12. Mobile wireless services allow 

customers to make and receive 

telephone calls and use data services 

using radio transmissions without being 

confined to a small area during the call 

or data session, and without the need 

for unobstructed line-of-sight to the 

radio tower. This mobility is highly 

prized by customers, as demonstrated 

by the more than 160 million people in 

the United States who own mobile 

wireless telephones. In 2003, revenues 

from the sale of mobile wireless services 

in the United States were nearly $90 

billion.

13. The first wireless voice systems 

were based on analog technology, now 

referred to as first-generation or ‘‘IG’’

technology. These analog systems were 

launched after the FCC issued the first 

licenses for mobile wireless telephone 

service: two cellular licenses (A-block 

and B-block) in each geographic area in 

the early to mid-1980s. The licenses are 

in the 800 MHz range of the radio 

spectrum, each license consists of 25 

MHz of spectrum, and they are issued 

for each Metropolitan Statistical Area 

(‘‘MSA’’) and Rural Service Area 

(‘‘RSA’’) (collectively, ‘‘Cellular 

Marketing Areas’’ or ‘‘CMAs’’), with a 

total of 734 CMAs covering the entire 

United States. In 1982, one of the 

licenses was issued to the incumbent 

local exchange carrier in the market, 

and the other was issued by lottery to 

someone other than the incumbent. 

Cellular licensees must support analog 

service until February 2008. 

14. In 1995, the FCC allocated and 

subsequently issued licenses for 

additional spectrum for the provision of 

Personal Communications Services 

(‘‘PCS’’), a category of services that 

includes mobile wireless telephone 

services comparable to those offered by 

cellular licensees. These licenses are in 

the 1.8 GHz range of the radio spectrum 

and are divided into six blocks: A, B, 

and C, which consist of 30 MHz each; 

and D, E, and F, which consist of 10 

MHz each. Geographically, the A- and 

B-block 30 MHz licenses are issued by 

Major Trading Areas (‘‘MTAs’’), and

C-, D-, E-, and F-block licenses are 

issued by Basic Trading Areas

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65647

(‘‘BTAs’’), several of which comprise 

each MTA. MTAs and BTAs do not 

generally correspond to MSAs and 

RSAs. With the introduction of the PCS 

licenses, both cellular and PCS licensees 

began offering digital services, thereby 

increasing capacity, shrinking handsets, 

and extending battery life. Unlike the 

cellular licenses, PCS licensees are not 

required to provide support for analog 

or any other technology standard. In 

1996, one provider, a specialized mobile 

radio (‘‘SMR’’ or ‘‘dispatch’’) spectrum 

licensee, began to use its SMR spectrum 

to offer mobile wireless telephone 

services comparable to those offered by 

other mobile wireless services 

providers, in conjunction with its 

dispatch, or ‘‘push-to-talk,’’ service. 

15. Today, more than 90 percent of all 

mobile wireless services customers have 

digital service, and nearly all mobile 

wireless voice service has migrated to 

second-generation or ‘‘2G’’ digital 

technologies: TDMA (time division 

multiple access), GSM (Global Standard 

for Mobile, a type of TDMA standard 

used by all carriers in Europe), and 

CDMA (code division multiple access). 

Mobile wireless services providers have 

chosen to build their networks on these 

incompatible technologies and most 

have chosen CDMA or GSM, with 

TDMA having been orphaned by 

equipment vendors. (The SMR 

providers use a fourth incompatible 

technological standard better suited to 

the spectrum they own, and, as SMR 

licensees, they have no obligation to 

support a specific technology standard.) 

Even more advanced technologies 

(‘‘2.5G’’) have begun to be deployed for 

voice and data (e.g., 1xRTT (a/k/a 

CDMA 2000), GPRS (General Packet 

Radio Service), and EDGE (Enhanced 

Data for GSM Evolution)). The data 

transmission speeds of these 

technologies vary. For example, 1xRTT 

provides average user speeds of 70 

kilobits per second (‘‘kbps’’), and GRPS 

and EDGE provide average user speeds 

of 20 to 40 kbps and 80 to 110 kbps, 

respectively. 

16. The U.S. mobile wireless services 

industry is taking the next evolutionary 

step in wireless technology to thirdgeneration or ‘‘3G’’ technologies (e.g., 

for GSM, UMTS (Universal Mobile 

Telecommunications System) and for 

CDMA, Ev-DO/DV (Evolution Data 

Only/Data Voice)) that provide for more 

capacity and higher data throughout. All 

of the national mobile wireless services 

providers and some of the regional 

providers are considering how and 

where they will deploy 3G services 

across their networks. The data 

transmission speeds of these 

technologies vary. UMTS provides 

average user speeds of 200 to 300 kbps, 

whereas Ev-DO provides average user 

speeds of 300 to 500 kbps. 

B. Relevant Product Markets 

17. Mobile wireless 

telecommunications services and 

mobile wireless broadband services are 

relevant product markets (collectively, 

‘‘mobile wireless services’’).

1. Mobile Wireless Telecommunications 

Services 

18. Mobile wireless 

telecommunications services include 

both voice and data services provided 

over a radio network and allow 

customers to maintain their telephone 

calls or data sessions without wires, 

such as when traveling. There are no 

cost-effective alternatives to mobile 

wireless telecommunications services. 

Fixed wireless services are not mobile, 

and other wireless services have a 

limited range (e.g., Wi-Fi); neither offers 

a viable alternative to mobile wireless 

telecommunications services. It is 

unlikely that a sufficient number of 

customers would switch away from 

mobile telecommunications services to 

make a small but significant price 

increase in those services unprofitable. 

Mobile wireless telecommunications 

services is a relevant product market 

under Section 7 of the Clayton Act, 15 

U.S.C. 18. 

2. Mobile Wireless Broadband Services 

19. Mobile wireless broadband 

services offer data speeds four to six 

times faster than the current data 

offerings fully deployed in any mobile 

wireless services provider’s network. 

Mobile wireless broadband services, 

which are now being launched using 

various 3G technologies, offer average 

data speeds of 200 to 300 kbps, peaking 

at 2 megabits per second or higher. 

These speeds rival wireline broadband 

services at peak speeds. At average 

speeds, they are comparable to low-end 

wireline high-speed data offerings and 

can support bandwidth-intensive 

services including video conferencing, 

video streaming, downloading of music 

and video files, and voice over Internet 

protocol (‘‘VoIP’’) calling, none of which 

can be used reliably at slower speeds. 

There are no cost-effective alternatives 

to mobile wireless broadband services. 

As with mobile wireless 

telecommunications services, fixed 

wireless services and other wireless 

services that have a limited range (e.g., 

Wi-Fi) do not offer a viable alternative 

to mobile wireless broadband services. 

It is unlikely that a sufficient number of 

customers would switch away from 

mobile wireless broadband services to 

make a small but significant price 

increase in those services unprofitable. 

Mobile wireless broadband services is a 

relevant product market under Section 7 

or the Clayton Act, 15 U.S.C. 18. 

C. Relevant Geographic Markets 

20. The large majority of customers 

use mobile wireless services in close 

proximity to their workplaces and 

homes. Thus, customers purchasing 

mobile wireless telecommunications 

services and mobile wireless broadband 

services choose among mobile wireless 

services providers that offer services 

where they are located and travel on a 

regular basis: home, work, other areas 

they commonly visit, and areas in 

between. The number and identity of 

mobile wireless services providers 

varies from geographic area to 

geographic area, along with the quality 

of their services and the breadth of their 

geographic coverage, all of which are 

significant factors in customers’

purchasing decisions. Mobile wireless 

services providers can and do offer 

different promotions, discounts, calling 

plans, and equipment subsidies in 

different geographic areas, effectively 

varying the actual price for customers 

by geographic area.

21. The United States comprises 

numerous local geographic markets for 

mobile wireless services. These local 

geographic markets are generally 

centered around a metropolitan area or 

a population center and its environs. 

The FCC has licensed a limited number 

of mobile wireless services providers in 

these and other geographic areas based 

upon the availability of radio spectrum. 

These FCC spectrum licensing areas 

therefore often represent the core of the 

business and social sphere where 

customers face the same competitive 

choices for mobile wireless services. 

The relevant geographic markets in 

which this transaction will substantially 

lessen competition in mobile wireless 

telecommunications services and 

mobile wireless broadband services are 

effectively represented, but not defined, 

by FCC spectrum licensing areas. 

22. The relevant geographic markets, 

under Section 7 of the Clayton Act, 15 

U.S.C. 18, where the transaction will 

substantially lessen competition for 

mobile wireless telecommunications 

services are represented by the 

following FCC spectrum licensing areas: 

Oklahoma City, Oklahoma (CMA 045), 

Topeka, Kansas (CMA 179), Pittsfield, 

Massachusetts (CMA 213), Athens, 

Georgia (CMS 234), St. Joseph, Missouri 

(CMA 275), Connecticut RSA–1 (CMA 

357), Kentucky RSA–1 (CMA 443), 

Oklahoma RSA–3 (CMA 598), Texas

65648 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

RSA–11 (CMA 662), and Shreveport, 

Louisiana (BTA 419). 

23. The relevant geographic markets, 

under Section 7 of the Clayton Act, 15 

U.S.C. 18, where the transaction will 

substantially lessen competition for 

mobile wireless broadband services are 

represented by the following FCC 

spectrum licensing areas: Dallas-Fort 

Worth, Texas (CMA 009), Detroit, 

Michigan (BTA 112), and Knoxville, 

Tennessee (BTA 232). 

24. It is unlikely that a sufficient 

number of customers would switch to 

mobile wireless services providers in a 

different geographic market to make a 

small but significant price increase in 

the relevant geographic markets 

unprofitable for mobile wireless 

telecommunications services or mobile 

wireless broadband services. 

D. Anticompetitive Effects 

1. Mobile Wireless Telecommunications 

Services 

25. Currently, Cingular and AT&T 

Wireless both own all or part of 

businesses that offer mobile wireless 

telecommunications services in the 10 

relevant geographic areas. In Athens, 

Georgia; Topeka, Kansas; Pittsfield, 

Massachusetts; and St. Joseph, Missouri, 

AT&T Wireless owns a minority equity 

interest in Verizon Wireless’s business 

providing mobile wireless 

telecommunications services. In 

Shreveport, Louisiana, Cingular owns a 

minority equity interest in AllTel 

Corporations’ business providing mobile 

wireless telecommunications services. 

The minority equity interest range from 

approximately 9 to 24 percent. Based 

upon these significant minority equity 

interests and the specific facts of the 

relationships, the shares and assets of 

the mobile wireless services business 

partially owned by Cingular or AT&T 

Wireless in these markets should be 

attributed to either Cingular or AT&T 

Wireless. 

26. The individual market shares of 

Cingular’s and AT&T Wireless’s mobile 

wireless telecommunications services 

businesses in the relevant geographic 

markets as measured in terms of 

subscribers range from 9 to more than 

71 percent, and their combined market 

shares range from 61 to nearly 90 

percent. In each relevant geographic 

market, Cingular or AT&T Wireless has 

the largest market share, and in all but 

one, the other is the second-largest 

mobile wireless telecommunications 

services provider. In all but one of the 

relevant geographic markets, Cingular 

and AT&T Wireless are the original 

cellular licensees and, as a result, have 

the network infrastructures with the 

greatest depth and breadth of coverage. 

Therefore, Cingular and AT&T Wireless 

are likely closer substitutes for each 

other than the other mobile wireless 

telecommunications services providers 

in the relevant geographic markets.

27. The relevant geographic markets 

for mobile wireless telecommunications 

services are highly concentrated. As 

measured by the Herfindahl-Hirschman 

Index (‘‘HHI’’), which is commonly 

employed in merger analysis and is 

defined and explained in Appendix A to 

this Complaint, concentration in these 

markets ranges from approximately 

2600 to more than 5300, which is well 

above the 1800 threshold at which the 

Department considers a market to be 

highly concentrated. After Cingular’s 

proposed acquisition of AT&T Wireless 

is consummated, the HHIs in the 

relevant geographic markets will range 

from approximately 4400 to more than 

8000, with increases in the HHI as a 

result of the merger ranging from 

approximately 1100 to more than 3500, 

much higher than the thresholds below 

which the Department considers a 

transaction unlikely to cause 

competitive harm. 

28. Competition between Cingular 

and AT&T Wireless in the relevant 

geographic markets has resulted in 

lower prices and higher quality in 

mobile wireless telecommunications 

services, than would otherwise have 

existed in these geographic markets. If 

Cingular’s proposed acquisition of 

AT&T Wireless is consummated, the 

relevant geographic markets for mobile 

wireless telecommunications services 

will become substantially more 

concentrated, and the competition 

between Cingular and AT&T Wireless in 

mobile wireless telecommunications 

services will be eliminated in these 

markets. As a result, the loss of 

competition between Cingular and 

AT&T Wireless increases the likelihood 

of unilateral actions by the merged firm 

in the relevant geographic markets to 

increase prices, diminish the quality of 

services provided, refrain from or delay 

making investments in network 

improvements, and refrain from or delay 

launching new services. Therefore, 

Cingular’s proposed acquisition of 

AT&T Wireless will likely result in 

substantially less competition in mobile 

wireless telecommunications services in 

the relevant geographic markets. 

2. Mobile Wireless Broadband Services 

29. In the relevant geographic markets 

for mobile wireless broadband services, 

Cingular and AT&T Wireless have either 

launched or are likely soon to launch 

mobile wireless broadband services. 

Each has the available spectrum 

necessary to offer mobile wireless 

broadband services and has business 

plans to offer these services in these 

markets. Not all mobile wireless 

services providers have sufficient 

spectrum to launch mobile wireless 

broadband services in these markets, 

nor do they all have business plans to 

do so. In the relevant geographic 

markets, the current number of mobile 

wireless services providers that are 

likely to launch mobile wireless 

broadband services in the foreseeable 

future is limited. Because mobile 

wireless broadband services are nascent, 

however, HHIs are uninformative. 

30. The competition between Cingular 

and AT&T Wireless has motivated their 

efforts to develop and launch mobile 

wireless broadband services in the 

relevant geographic markets. If 

Cingular’s proposed acquisition of 

AT&T Wireless is consummated, the 

relevant geographic markets will lose 

one of only a few existing and likely 

mobile wireless broadband services 

providers. As a result, the loss of 

competition between Cingular and 

AT&T Wireless increases the likelihood 

of unilateral actions by the merged firm 

in these relevant geographic markets to 

increase prices, diminish the quality or 

quantity of services provided, refrain 

from or delay making investments in 

network improvements, and refrain 

from or delay launching mobile wireless 

broadband services. Therefore, 

Cingular’s proposed acquisition of 

AT&T Wireless will likely result in 

substantially less competition in mobile 

wireless broadband services in the 

relevant geographic markets. 

3. Entry 

31. Entry by a new mobile wireless 

services provider in the relevant 

geographic markets would be difficult, 

time-consuming, and expensive, 

requiring the acquisition of spectrum 

licenses and the build-out of a network. 

Therefore, new entry in response to a 

small but significant price increase for 

mobile wireless telecommunications 

services or mobile wireless broadband 

services by the merged firm in the 

relevant geographic markets would not 

be timely, likely, or sufficient to thwart 

the competitive harm resulting from 

Cingular’s proposed acquisition of 

AT&T Wireless, if it were to be 

consummated. 

IV. Violation Alleged 

32. The effect of Cingular’s proposed 

acquisition of AT&T Wireless, if it were 

to be consummated, may be 

substantially to lessen competition in 

interstate trade and commerce in the 

relevant geographic markets for mobile

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65649

wireless telecommunications services 

and mobile wireless broadband services, 

in violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

33. Unless restrained, the transaction 

will likely have the following effects in 

mobile wireless telecommunications 

services and mobile wireless broadband 

services in the relevant geographic 

markets, among others:

a. Actual and potential competition 

between Cingular and AT&T Wireless 

will be eliminated; 

b. Competition in general will be 

lessened substantially; 

c. Prices are likely to increase; 

d. The quality and quantity of services 

are likely to decrease; 

e. Incentives to improve wireless 

networks will be reduced; and 

f. Incentives to innovate or launch 

new services will be reduced. 

V. Requested Relief 

34. That Cingular’s proposed 

acquisition of AT&T Wireless be 

adjudged to violate Section 7 of the 

Clayton Act, 15 U.S.C. 18; 

35. That defendants be permanently 

enjoined from and restrained from 

carrying out the Agreement and Plan of 

merger, dated February 17, 2004, or 

from entering into or carrying out any 

agreement, understanding, or plan, the 

effect of which would be to bring the 

wireless telecommunications services 

businesses of Cingular and AT&T 

Wireless under common ownership or 

control; 

36. That plaintiffs be awarded their 

costs of this action; and 

37. That plaintiffs have such other 

relief as the Court may deem just and 

proper.

Dated: October 25, 2004.

Respectfully Submitted, 

For Plaintiff United States of America: 

/s/ lllllllllllllllllll

R. Hewitt Pate

Assistant Attorney General, Antitrust 

Division.

/s/ lllllllllllllllllll

J. Bruce McDonald

Deputy Assistant Attorney General Antitrust 

Division.

J. Robert Kramer II,

Director of Operations, Antitrust Division.

/s/ lllllllllllllllllll

Nancy Goodman (D.C. Bar #251694),

Chief, Telecommunications & Media, 

Enforcement Section, Antitrust Division.

/s/ lllllllllllllllllll

Laury Bobbish,

Assistant Chief, Telecommunications & 

Media Enforcement Section, Antitrust 

Division.

/s/ lllllllllllllllllll

Hillary B. Burchuk (D.C. Bar #366755), 

Matthew C. Hammond, 

David T. Blonder, 

Benjamin Brown, 

Michael D. Chaleff, 

Benjamin Giliberti, 

Lorenzo McRae (D.C. Bar #473660), 

Jeremiah M. Luongo,

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, City Center Building, 

1401 H Street, NW., Suite 8000, Washington, 

DC 20530, (202) 514–5621, Facsimile: (202) 

514–6381.

State of Connecticut 

Richard Blumenthal,

Attorney General.

Michael E. Cole,

Assistant Attorney General, Department 

Head/Antitrust Department, Federal bar No. 

ct20115.

/s/ lllllllllllllllllll

Rachel O. Davis,

Assistant Attorney General, Antitrust 

Department, Federal bar No. ct07411, DC Bar 

No. 413157 (inactive), 55 Elm Street, 

Hartford, Connecticut 06106, Tel: (860) 808–

5041, Fax: (860) 808–5033.

For Plaintiff State of Texas 

Greg Abbott,

Attorney General of Texas.

Barry R. McBee,

First Assistant Attorney General.

Edward D. Burbach,

Deputy Attorney General for Litigation.

Mark Tobey,

Assistant Attorney General, Chief, Antitrust 

& Civil Medicaid Fraud Division.

Rebecca Fisher,

Assistant Attorney General, Chief, Antitrust 

Section.

/s/ lllllllllllllllllll

John T. Prud’homme, Jr.,

Assistant Attorney General, TX Bar No. 

24000322, Office of the Attorney General, 

P.O. Box 12548, Austin, Texas 78711–2548, 

512/936–1697, 512/320–0975 (Facsimile).

Signature by the State of Texas on 

Complaint in United States of America, State 

of Connecticut and State of Texas v. Cingular 

Wireless Corporation, SBC Communications 

Inc., BellSouth Corporation and AT&T 

Wireless Services, Inc.

Appendix A—Herfindahl-Hirschman 

Index

‘‘HHI’’ means the Herfindahl-Hirschman 

Index, a commonly accepted measure of 

market concentration. It is calculated by 

squaring the market share of each firm 

competing in the market and then summing 

the resulting numbers. For example, for a 

market consisting of four firms with shares of 

30, 30, 20, and 20 percent, the HHI is 2600 

(302 + 302 + 202 + 202 = 2600). (Note:

Throughout the Complaint, market share 

percentages have been rounded to the nearest 

whole number, but HHIs have been estimated 

using unrounded percentages in order to 

accurately reflect the concentration of the 

various markets.) The HHI takes into account 

the relative size distribution of the firms in 

a market and approaches zero when a market 

consists of a large number of small firms. The 

HHI increases both as the number of firms in 

the market decreases and as the disparity in 

size between those firms increases. 

Markets in which the HHI is between 1000 

and 1800 points are considered to be 

moderately concentrated, and those in which 

the HHI is in excess of 1800 points are 

considered to be highly concentrated. See 

Horizontal Merger Guidelines ¶1.51 (revised 

Apr. 8, 1997). Transactions that increase the 

HHI by more than 100 points in concentrated 

markets presumptively raise antitrust 

concerns under the guidelines issued by the 

U.S. Department of Justice and Federal Trade 

Commission. See id.

In the United States District Court for 

the District of Columbia 

United States of America, State of 

Connecticut and State of Texas, 

Plaintiffs, v. Cingular Wireless 

Corporation, SBC Communications Inc., 

Bellsouth Corporation and AT&T 

Wireless Services, Inc., Defendants; 

Preservation of Assets Stipulation and 

Order 

Civil No.: 1:04CV01850 (RBW) 

Filed: 10/25/04

It is hereby stipulated and agreed by 

and between the undersigned parties, 

subject to approval and entry by the 

Court, that: 

I. Definitions 

As used in this Preservation of Assets 

Stipulation and Order: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

the entity or entities to whom 

defendants divest the Divestiture Assets. 

B. ‘‘AT&T Wireless’’ means defendant 

AT&T Wireless Services, Inc., a 

Delaware corporation with headquarters 

in Redmond, Washington, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

C. ‘‘BellSouth’’ means defendant 

BellSouth Corporation, a Georgia 

corporation with headquarters 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. 

D. ‘‘Cingular’’ means defendant 

Cingular Wireless Corporation, a 

Delaware corporation with headquarters 

in Atlanta, Georgia, and Cingular 

Wireless LLC, a Delaware limited 

liability company formed as a joint 

venture between SBC and BellSouth, 

with headquarters in Atlanta, Georgia, 

their successors and assigns, and their 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint

65650 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘Divestiture Assets’’ means 

Wireless Business Divestiture Assets, 

Spectrum License Divestiture Assets, 

and Minority Interests, including any 

direct or indirect financial ownership or 

leasehold interests and any direct or 

indirect role in management or 

participation in control therein. 

F. ‘‘Minority Interests’’ means the 

equity interests owned by any defendant 

in the following entities that are the 

licensees or operators of wireless mobile 

telephone businesses in the specified 

Metropolitan Statistical Areas (‘‘MSAs’’) 

and Rural Statistical Areas (‘‘RSAs’’) 

(collectively, Cellular Marketing Areas 

(‘‘CMAs’’)) used to define cellular 

license areas by the Federal 

Communications Commission (‘‘FCC’’):

(1) Alltel Communications of North 

Louisiana Cellular Limited Partnership, 

covering the Shreveport, Louisiana MSA 

(CMA 100), Monroe, Louisiana MSA 

(CMA 219), Louisiana RSA–1 (CMA 

454), Louisiana RSA–2 (CMA 455) and 

Louisiana RSA–3 (CMA 456); 

Athens Cellular Inc., covering the 

Athens, Georgia MSA (CMA 234); 

(3) CellTelCo, covering the St. Joseph, 

Missouri MSA (CMA 275); 

(4) Pittsfield Cellular Telephone Co., 

covering the Pittsfield, Massachusetts 

MSA (CMA 213); and 

(5) Topeka Cellular Telephone Co., 

Inc., covering the Topeka, Kansas MSA 

(CMA 179).

As an alternative to the divestiture of 

the Alltel Communications of North 

Louisiana Cellular Limited Partnership, 

CellTelCo, and Topeka Cellular 

Telephone Co., Inc. Minority Interests as 

required by Section IV of the proposed 

Final Judgment, defendants may 

request, at least 20 days prior to 

consummation of the Transaction, 

approval from plaintiff United States to 

retain such interests. Plaintiff United 

States in its sole discretion may approve 

this request if it is demonstrated that the 

retained minority interest will become 

irrevocably and entirely passive, so long 

as defendants own the minority 

interests, and will not significantly 

diminish competition. 

G. ‘‘Multi-line Business Customer’’

means a corporate or business customer 

that contracts with AT&T Wireless for 

mobile wireless services to provide 

multiple telephones to its employees or 

members whose services are provided 

pursuant to the contract with the 

corporate or business customer. 

H. ‘‘SBC’’ means defendant SBC 

Communications, Inc., a Delaware 

corporation with its headquarters in San 

Antonio, Texas, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees.

I. ‘‘Skagit’’ means Skagit Wireless 

LLC, an Oregon corporation with 

headquarters in Portland, Oregon, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

J. ‘‘Spectrum License Divestiture 

Assets’’ means a license for 10 MHz of 

contiguous PCS spectrum in the 

specified MSAs and Basic Trading 

Areas (‘‘BTA’’) used to define cellular 

and PCS license areas by the FCC: 

(1) The Dallas-Fort Worth, Texas MSA 

(CMA 009); 

(2) The Detroit, Michigan BTA (BTA 

112), provided that the license to be 

transferred does not include any PCS 

spectrum in Monroe and Sanilac 

counties; and 

(3) The Knoxville, Tennessee BTA 

(BTA 232), provided that as an 

alternative to the divestiture of a license 

for 10 MHz of contiguous PCS spectrum 

as required by Section IV of the 

proposed Final Judgment, defendants, 

with the approval of plaintiff United 

States in its sole discretion, can 

restructure AT&T Wireless’s existing 

relationship with Skagit such that (i) 

defendants have no equity or leasehold 

interest in, hold no debt of, and have no 

managerial or operational interest in 

Skagit’s PCS license in the Knoxville 

Tennessee BTA, and (ii) Skagit’s PCS 

license in the Knoxville Tennessee BTA 

is contractually committed to be used in 

a manner that resolves the competitive 

concerns alleged by plaintiffs in the 

Complaint. 

K. ‘‘Transaction’’ means the 

Agreement and Plan of Merger By and 

Among AT&T Wireless Services, Inc., 

Cingular Wireless Corporation, Cingular 

Wireless LLC, Links I Corporation, SBC 

Communications Inc., and Bell South 

Corporation, dated February 17, 2004. 

L. ‘‘Wireless Business Divestiture 

Assets’’ means, for each mobile wireless 

business to be divested under the 

proposed Final Judgment, all types of 

assets, tangible and intangible, used by 

defendants in the operation of the 

mobile wireless businesses to be 

divested (including the provision of 

long distance telecommunications 

services for wireless calls). ‘‘Wireless 

Business Divestiture Assets’’ shall be 

construed broadly to accomplish the 

complete divestitures of the entire 

business of AT&T Wireless in each of 

the following MSA and RSA license 

areas as required by the proposed Final 

Judgment and to ensure that the 

divested mobile wireless businesses 

remain viable, ongoing businesses: 

(a) Oklahoma City, Oklahoma MSA 

(CMA 045); 

(b) Connecticut RSA–1 (CMA 357), 

provided that defendants may retain 10 

MHz of AT&T Wireless’s PCS spectrum, 

provided that 10 MHz of contiguous 

PCS spectrum throughout the RSA is 

divested to the Acquirer; 

(c) Kentucky RSA–1 (CMA 443), 

provided that defendants may retain 15 

MHz of AT&T Wireless’s PCS spectrum 

in Fulton country and 10 MHz of AT&T 

Wireless’s PCS spectrum in the other 

counties contained within the RSA, 

provided that 30 MHz of contiguous 

PCS spectrum in Fulton county and 20 

MHz of contiguous PCS spectrum in the 

other counties contained in the RSA is 

divested to an Acquirer; 

(d) Oklahoma RSA–3 (CMA 598); and 

(e) Texas RSA–11 (CMA 662), 

provided that defendants may retain in 

Sabine County, 25 MHz of AT&T 

Wireless’s PCS spectrum, and in 

Angelina, Nacogdoches, and San 

Augustine counties, defendants may 

retain 20 MHz of AT&T Wireless’s PCS 

spectrum, provided that 10 MHz of 

contiguous PCS spectrum throughout 

the RSA is divested to an Acquirer.

Wireless Business Divestiture Assets 

shall include, without limitation, all 

types of real and personal property, 

monies and financial instruments, 

equipment, inventory, office furniture, 

fixed assets and furnishings, supplies 

and materials, contracts, agreements, 

leases, commitments, spectrum licenses 

issued by the FCC and all other licenses, 

permits and authorizations, operational 

support systems, cell sites, network 

infrastructure, switches, customer 

support and billing systems, interfaces 

with other service providers, business 

and customer records and information, 

customer contracts, customer lists, 

credit records, accounts, and historic 

and current business plans which relate 

primarily to the wireless business being 

divested, as well as any patents, 

licenses, sub-licenses, trade secrets, 

know-how, drawings, blueprints, 

designs, technical and quality 

specifications and protocols, quality 

assurance and control procedures, 

manuals and other technical 

information defendants supply to their 

own employees, customers, suppliers, 

agents, or licenses, and trademarks, 

trade names and service marks or other 

intellectual property, including all 

intellectual property rights under thirdparty licenses that are capable of being 

transferred to an Acquirer either in their 

entirety, for assets described in (1) 

below, or through a license obtained 

through or from the divesting defendant,

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65651

for assets described in (2) below; 

provided that defendants shall only be 

required to divest Multi-line Business 

Customer contracts, if 50 percent or 

more of the Multi-line Business 

Customer’s subscribers reside or work 

within any of the five (5) license areas 

described herein, and further, any 

subscribers who obtain mobile wireless 

services through any such contract 

retained by defendants and who are 

located within the five (5) geographic 

areas identified above, shall be given the 

option to terminate their relationship 

with defendants, without financial cost, 

within one year of the closing of the 

Transaction. Defendants shall provide 

written notice to these subscribers 

within 45 days after the closing of the 

Transaction. 

These divestitures of the Wireless 

Business Divestiture Assets as defined 

in Section II.L shall be accomplished by: 

(1) Transferring to the Acquirer(s) the 

complete ownership and/or other rights 

to the assets (other than those assets 

used substantially in the operations of 

AT&T Wireless’s overall wireless 

business which must be retained to 

continue the existing operations of the 

wireless properties that defendants are 

not required to divest, and that either 

are not capable of being divided 

between the divested wireless 

businesses and those not divested, or 

are assets that the defendants and the 

Acquirer(s) agree, subject to approval of 

plaintiff United States upon 

consultation with any relevant plaintiff 

state, shall not be divided); and 

(2) Granting to the Acquirer(s) an 

option to obtain a non-exclusive, 

transferable license from defendants for 

a reasonable period, subject to approval 

of plaintiff United States upon 

consultation with any relevant plaintiff 

state, at the election of an Acquirer to 

use any of AT&T Wireless’s retained 

assets under paragraph (1) above, used 

in the operation of the wireless business 

being divested, so as to enable the 

Acquirer to continue to operate the 

divested wireless business without 

impairment. Defendants shall identify 

in a schedule submitted to plaintiffs and 

filed with the Court, as expeditiously as 

possible following the filing of the 

Complaint and in any event prior to any 

divestitures and before the approval by 

the Court of the proposed Final 

Judgment, any intellectual property 

rights under third-party licenses that are 

used by the wireless businesses being 

divested but that defendants could not 

transfer to an Acquirer entirely or by 

license without third-party consent, and 

the specific reasons why such consent is 

necessary and how such consent would 

be obtained for each asset.

II. Objectives 

The Final Judgment filed in this case 

is meant to ensure defendants’ prompt 

divestiture of the Divestiture Assets for 

the purpose of preserving viable 

competitors in the provision of mobile 

wireless services in order to remedy the 

effects that plaintiffs allege would 

otherwise result from Cingular’s 

acquisition of AT&T Wireless. This 

Preservation of Assets Stipulation and 

Order ensures, prior to such 

divestitures, that competition is 

maintained during the pendency of the 

ordered divestitures, and that the 

Wireless Business Divestiture Assets 

remain an ongoing business concern 

and the Divestiture Assets remain 

economically viable. The Divestiture 

Assets will remain, as provided herein, 

preserved, independent and 

uninfluenced by defendants. 

III. Jurisdiction and Venue 

This Court has jurisdiction over the 

subject matter of this action and each of 

the parties hereto, and venue of this 

action is proper in the United States 

District Court for the District of 

Columbia. The Complaint states a claim 

upon which relief may be granted 

against defendants under Section 7 of 

the Clayton Act, 15 U.S.C. 18. 

IV. Compliance With and Entry of Final 

Judgment 

A. The parties stipulate that a 

proposed Final Judgment in the form 

attached hereto as Exhibit A may be 

filed with and entered by the Court, 

upon the motion of any party or upon 

the Court’s own motion, at any time 

after compliance with the requirements 

of the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16, and without 

further notice to any party or other 

proceedings, provided that no plaintiff 

has withdrawn its consent, which it 

may do at any time before the entry of 

the proposed Final Judgment by serving 

notice thereof on defendants and other 

plaintiffs and by filing that notice with 

the Court. 

B. Defendants shall abide by and 

comply with the provisions of the 

proposed Final Judgment, pending the 

Judgment’s entry by the Court, or until 

expiration of time for all appeals of any 

Court ruling declining entry of the 

proposed Final Judgment, and shall, 

from the date of the signing of this 

Stipulation by the parties, comply with 

all the terms and provisions of the 

proposed Final Judgment as though the 

same were in full force and effect as an 

order of the Court. 

C. Defendants shall not consummate 

the transaction sought to be enjoined by 

the Complaint herein before the Court 

has signed this Preservation of Assets 

Stipulation and Order. 

D. This Stipulation shall apply with 

equal force and effect to any amended 

proposed Final Judgment agreed upon 

in writing by the parties and submitted 

to the Court. 

E. In the event (1) any plaintiff has 

withdrawn its consent, as provided in 

Section IV.A above, or (2) the proposed 

Final Judgment is not entered pursuant 

to this Stipulation, the time has expired 

for all appeals of any Court declining 

entry of the proposed Final Judgment, 

and the Court has not otherwise ordered 

continued compliance with the terms 

and provisions of the proposed Final 

Judgment, then the parties are released 

from all further obligations under this 

Stipulation, and the making of this 

Stipulation shall be without prejudice to 

any party in this or any other 

proceeding. 

F. Defendants represent that the 

divestitures ordered in the proposed 

Final Judgment can and will be made, 

and that defendants will later raise no 

claim of mistake, hardship or difficulty 

of compliance as grounds for asking the 

Court to modify any of the provisions 

contained therein.

V. Management Trustee 

A. Plaintiff United States nominates 

Joseph J. Simons as Management 

Trustee in this case. The plaintiff states 

consent to, and defendants have no 

objection to, his immediate appointment 

by this Court. Accordingly, this Court 

appoints Joseph J. Simons as 

Management Trustee to serve as 

manager of the Divestiture Assets until 

the Divestiture Assets are sold or 

transferred to a Divestiture Trustee 

pursuant to Section V of the proposed 

Final Judgment. Nothing in this 

Stipulation shall be interpreted to 

prevent the Management Trustee from 

becoming the Divestiture Trustee 

pursuant to Section V of the proposed 

Final Judgment. 

B. Within five (5) business days of the 

entry of this Stipulation by the Court, 

defendants shall enter into a trust 

agreement with Mr. Simons subject to 

the approval of plaintiff United States in 

its sole discretion upon consultation 

with plaintiff states, that will grant the 

rights, powers, and authorities 

necessary to permit him to perform the 

duties and responsibilities of the 

Management Trustee pursuant to this 

Stipulation. The trust agreement shall 

enable him to assume all rights, powers, 

and authorities necessary to perform his 

duties and responsibilities, pursuant to 

this Stipulation and the proposed Final 

Judgment and consistent with their

65652 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

purposes. Mr. Simons or any other 

subsequently appointed Management 

Trustee shall serve at the cost and 

expense of defendants, on such terms 

and conditions as plaintiff United States 

approves upon consultation with 

plaintiff states, with a fee arrangement 

that is reasonable in light of the person’s 

experience and responsibilities. 

C. The Management Trustee will have 

the following powers and 

responsibilities with respect to the 

Divestiture Assets: 

(1) The Management Trustee will 

have the power to manage the 

Divestiture Assets in the ordinary 

course of business consistent with this 

Stipulation. Only with the prior written 

approval of plaintiff United States upon 

consultation with plaintiff states, may 

the Management Trustee make any 

decision, take any action, or enter any 

transaction that is outside the ordinary 

course of business; 

(2) The Management Trustee shall 

have a duty to, consistent with the terms 

of this Stipulation and the proposed 

Final Judgment, monitor the 

organization of the Divestiture Assets; 

manage the Divestiture Assets in order 

to maximize their value so as to permit 

expeditious divestitures in a manner 

consistent with the proposed Final 

Judgment; maintain the independence 

of the Divestiture Assets from 

defendants; control and operate the 

Wireless Business Divestiture Assets to 

ensure that the Wireless Business 

Divestiture Assets remain an 

independent, ongoing, economically 

viable competitor to the other mobile 

wireless services providers; and assure 

defendants’ compliance with their 

obligations pursuant to this Stipulation 

and the proposed Final Judgment; 

(3) The Management Trustee shall 

have the authority to employ, at the cost 

and expense of defendants, such 

consultants, accountants, attorneys, and 

other representatives and assistants as 

are reasonably necessary to carry out the 

Management Trustee’s duties and 

responsibilities; 

(4) The Management Trustee and any 

consultants, accountants, attorneys, and 

any other persons retained by the 

Management Trustee, shall have full 

and complete access to all personnel, 

books, records, documents, and 

facilities of the Divestiture Assets or to 

any other relevant information as the 

Management Trustee may reasonably 

request, including, but not limited to, all 

documents and records kept in the 

normal course of business that relate to 

the Divestiture Assets. Defendants shall 

develop such financial or other 

information as the Management Trustee 

may request and shall cooperate with 

the Management Trustee. Defendants 

shall take no action to interfere with or 

impede the Management Trustee’s 

ability to monitor defendants’

compliance with this Stipulation and 

the proposed Final Judgment or 

otherwise to perform his duties and 

responsibilities consistent with the 

terms of this Stipulation and the 

proposed Final Judgment;

(5) The Management Trustee will 

ensure that the Divestiture Assets shall 

be staffed with sufficient employees to 

maintain their viability and 

competitiveness. To the extent that any 

employees whose principal 

responsibilities related to the 

Divestiture Assets leave or have left the 

Divestiture Assets prior to divestiture of 

the Divestiture Assets, the Management 

Trustee may replace departing or 

departed employees with persons who 

have similar experience and expertise or 

determine not to replace such departing 

or departed employees; and 

(6) Thirty (30) days after the 

Management Trustee has been 

appointed by the Court, and every thirty 

(30) days thereafter until the Divestiture 

Assets are either transferred to an 

Acquirer or to the Divestiture Trustee, 

the Management Trustee shall report in 

writing to the plaintiffs concerning the 

efforts to accomplish the purposes of 

this Stipulation and the proposed Final 

Judgment. Included within that report 

shall be the Management Trustee’s 

assessment of the extent to which the 

Divestiture Assets are meeing (or 

exceeding) their projected goals as are 

reflected in existing or revised operating 

plans, budgets, projections or any other 

regularly prepared financial statements 

and the extent to which defendants are 

fulfilling their responsibilities under 

this Stipulation and the proposed Final 

Judgment. 

D. The following limitations shall 

apply to the Management Trustee: 

(1) The Management Trustee shall not 

be involved, in any way, in the 

operations of the other businesses of 

defendants; 

(2) The Management Trustee shall 

have no financial interests affected by 

defendants’ revenues, profits or profit 

margins, except that the Management 

Trustee’s compensation for managing 

the Divestiture Assets may include 

economic incentives dependent on the 

financial performance of the Divestiture 

Assets provided that those incentives 

are consistent with the objectives of this 

Stipulation and the proposed Final 

Judgment and are approved by plaintiff 

United States upon consultation with 

plaintiffs states; and 

(3) The Management Trustee shall be 

prohibited from performing any further 

work for defendants for two (2) years 

after the close of the divestiture 

transactions. 

E. Defendants and the Management 

Trustee will take all reasonable efforts to 

preserve the confidentiality of 

information that is material to the 

operation of either the Divestiture 

Assets or defendants’ businesses. 

Defendants’ personnel supplying 

services to the Divestiture Assets 

pursuant to this Stipulation must retain 

and maintain the confidentiality of any 

and all confidential information 

material to the Divestiture Assets. 

Except as permitted by this Stipulation 

and the proposed Final Judgment, such 

persons shall be prohibited from 

providing, discussing, exchanging, 

circulating or otherwise furnishing the 

confidential information of the 

Divestiture Assets to or with any person 

whose employment involves any of 

defendants’ businesses, except as 

necessary to fulfill the purposes of this 

Stipulation and the proposed Final 

Judgment.

F. If in the judgment of the 

Management Trustee, defendants fail to 

provide the services listed in Section VI 

of this Stipulation to the satisfaction of 

the Management Trustee, upon 

notification to defendants and approval 

by plaintiff United States upon 

consultation with plaintiff states, the 

Management Trustee may engage third 

parties unaffiliated with the defendants 

to provide those services for the 

Divestiture Assets, at the cost and 

expense of defendants, provided that 

defendants may have reasonable access 

to information to satisfy themselves that 

after the services have been provided, 

the Divestiture Assets are in compliance 

with all applicable laws, rules, and 

regulations. 

G. At the option of the Management 

Trustee, defendants may also provide 

other products and services, on an armslength basis provided that the 

Management Trustee is not obligated to 

obtain any other product or service from 

defendants and may acquire any such 

products or services from third parties 

unaffiliated with defendants. 

H. If the Management Trustee ceases 

to act or fails to act diligently and 

consistently with the purposes of this 

Stipulation and the proposed Final 

Judgment, if the Management Trustee 

proposed by plaintiff United States is 

not approved by this Court or resigns, or 

if for any other reason the Management 

Trustee ceases to serve in his or her 

capacity as Management Trustee, the 

United States may select upon 

consultation with any relevant plaintiff 

state, a substitute Management Trustee. 

In this event, plaintiff United States will

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65653

identify to defendants the individual or 

entity it proposes to select as 

Management Trustee. Defendants must 

make any such objection to this 

selection within five (5) business days 

after plaintiff United States notifies 

defendants of the Management Trustee’s 

selection. Upon application of the 

United States, the Court shall approve 

and appoint a substitute Management 

Trustee. Within five (5) business days of 

such appointment, defendants shall 

enter into a trust agreement with the 

Management Trustee subject to the 

approval of plaintiff United States in its 

sole discretion upon consultation with 

plaintiff states, as described in Section 

V.B of this Stipulation. 

VI. Preservation of Assets 

Until the divestitures required by the 

proposed Final Judgment have been 

accomplished, except as otherwise 

approved in advance in writing by 

plaintiff United States upon 

consultation with plaintiff states: 

A. Defendants and the Management 

Trustee shall preserve, maintain, and 

continue to support the Divestiture 

Assets, take all steps necessary to 

manage the Divestiture Assets in order 

to maximize their revenue, profitability 

and viability so to permit expeditious 

divestitures in a manner consistent with 

this Stipulation and the proposed Final 

Judgment. 

B. The Wireless Business Divestiture 

Assets shall be operated by the 

Management Trustee as part of an 

independent, ongoing, economically 

viable competitive business to other 

mobile wireless services providers 

operating in the same license area. 

Defendants and the Management 

Trustee shall take all steps necessary to 

ensure that: 

(1) The management, sales, and 

operations of the Wireless Business 

Divestiture Assets are independent from 

defendants’ other operations; provided 

at the request of the Management 

Trustee, defendants shall include the 

marketing, pricing and sales of the 

mobile wireless services generated by 

the Wireless Business Divestiture Assets 

in the license areas served by the 

Wireless Business Divestiture Assets 

within its marketing, promotional, and 

service offerings, in the ordinary course 

of business, in any national, regional, 

and local marketing programs. Nothing 

in this Section shall prohibit the 

Management Trustee from developing 

his own reasonable marketing, sales, 

pricing or promotional offers, which 

shall be funded and supported by 

defendants; 

(2) The Wireless Business Divestiture 

Assets are maintained by adhering to 

normal and planned repair, capital 

improvement, upgrade and maintenance 

schedules; 

(3) The management of the Wireless 

Business Divestiture Assets will not be 

influenced by defendants; 

(4) The books, records, competitively 

sensitive sales, marketing and pricing 

information, and decision-making 

concerning marketing, pricing or sales 

of mobile wireless services generated by 

the Wireless Business Divestiture Assets 

will be kept separate and apart from 

defendants’ other operations; and 

(5) The management of the Wireless 

Business Divestiture Assets acts to 

maintain and increase the sales and 

revenues of the mobile wireless services 

generated by the Wireless Business 

Divestiture Assets, and maintain at 

previously approved levels for 2004 and 

2005, whichever are higher, all 

promotional, advertising, sales, 

marketing, and technical support for the 

Wireless Business Divestiture Assets. 

C. The management of the Spectrum 

License Divestiture Assets and the 

Minority Interests shall be held entirely 

separate, distinct, and apart from those 

of defendants’ other operations. 

D. Defendants shall provide sufficient 

working capital and lines and sources of 

credit as deemed necessary by the 

Management Trustee to continue to 

maintain the Divestiture Assets 

consistent with this Stipulation.

E. Except (1) as recommended by the 

Management Trustee and approved by 

plaintiff United States upon 

consultation with plaintiff states, or

(2) as part of a divestiture approved by 

plaintiff United States upon 

consultation with any relevant plaintiff 

state, in accordance with the terms of 

the proposed Final Judgment, 

defendants shall not remove, sell, lease, 

assign, transfer, pledge or otherwise 

dispose of any of the Divestiture Assets 

outside the ordinary course of business. 

F. The Management Trustee, with 

defendants’ cooperation consistent with 

this Stipulation and the proposed Final 

Judgment, shall maintain, in accordance 

with sound accounting principles, 

separate, accurate, and complete 

financial ledgers, books and records that 

report on a periodic basis, such as the 

last business day of every month, 

consistent with past practices, the 

assets, liabilities, expenses, revenues, 

and income of the Divestiture Assets. 

G. Defendants shall take no action 

that would jeopardize, delay, or impede 

the sale of the Divestiture Assets nor 

shall defendants take any action that 

would interfere with the ability of any 

Divestiture Trustee appointed pursuant 

to the proposed Final Judgment to 

operate and manage the Divestiture 

Assets or to complete the divestitures 

pursuant to the proposed Final 

Judgment to an Acquirer(s) acceptable to 

plaintiff United States. 

H. Upon the filing of the Complaint in 

the action, defendants shall appoint 

sufficient employees for each of the 

Wireless Business Divestiture Assets, 

who are familiar with and have had 

responsibility for the management, 

operation, marketing, and sales of the 

Divestiture Assets, to assist the 

Management Trustee with his duties 

and responsibilities hereunder. 

I. Except for employees (1) whose 

primary employment responsibilities 

relate to the Divestiture Assets, or (2) 

who are involved in providing support 

services to the Divestiture Assets 

pursuant to Sections V and VI of this 

Stipulation and Section V of the 

proposed Final Judgment, defendants 

shall not permit any other of their 

employees, officers, or directors to be 

involved in the operations of the 

Divestiture Assets. 

J. Except as required by law in the 

course of (1) complying with this 

Stipulation and the proposed Final 

Judgment; (2) overseeing compliance 

with policies and standards concerning 

the safety, health, and environmental 

aspects of the operations of the 

Divestiture Assets and the integrity of 

their financial controls; (3) defending 

legal claims, investigations or 

enforcement actions threatened or 

brought against the Divestiture Assets; 

or (4) obtaining legal advice, defendants’

employees (excluding employees

(a) whose primary employment 

responsibilities relate to the Divestiture 

Assets, or (b) who are involved in 

providing support services to the 

Divestiture Assets pursuant to Sections 

V and VI of this Stipulation and 

Sections V of the proposed Final 

Judgment) shall not receive, or have 

access to, or use any material 

confidential information, not in the 

public domain, of the Divestiture 

Assets. Defendants may receive 

aggregate financial information relating 

to the Divestiture Assets to the extent 

necessary to allow defendants to 

prepare the defendants’ consolidated 

financial reports, tax returns, reports 

required by securities laws, and 

personnel reports. Any such 

information that is obtained pursuant to 

this subparagraph shall be used only for 

the purposes set forth in this 

subparagraph. 

K. Defendants may offer a bonus or 

severance to employees whose primary 

employment responsibilities relate to 

the Divestiture Assets, that continue 

their employment until divestiture (in 

addition to any other bonus or

65654 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

severance to which the employees 

would otherwise be entitled). 

L. Until the Divestiture Assets are 

divested to an Acquirer(s) acceptable to 

plaintiff United States upon 

consultation with any relevant plaintiff 

state, defendants shall provide to the 

Divestiture Assets, at no cost, support 

services needed to maintain the 

Divestiture Assets in the ordinary 

course of business, including but not 

limited to: 

(1) Federal and state regulatory policy 

development and compliance; 

(2) Human resources administrative 

services; 

(3) Environmental, health and safety 

services, and developing corporate 

policies and ensuring compliance with 

federal and state regulations and 

corporate policies; 

(4) Preparation of tax returns; 

(5) Financial accounting and reporting 

services; 

(6) Audit services; 

(7) Legal services; 

(8) Routine network maintenance, 

repair, improvements, and upgrades; 

(9) Switching, call completion, and 

other services necessary to allow 

subscribers to use mobile wireless 

services and complete calls; and 

(10) Billing, customer care and 

customer service related functions 

necessary to maintain the subscriber 

account and relationship. 

M. Within twenty (20) days after the 

filing of the Complaint, defendants will 

notify plaintiff United States and 

plaintiff states in writing of the steps 

defendants have taken to comply with 

this Section. 

N. This Preservation of Assets 

Stipulation and Order shall remain in 

effect until consummation of the 

divestitures required by the proposed 

Final Judgment or until further order of 

the Court.

Dated: October 25, 2004

Respectfully submitted, 

For Plaintiff United States 

/s/ lllllllllllllllllll

Hillary B. Burchuk (D.C. Bar # 366755), 

Matthew C. Hammond,

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, City Center Building, 

1401 H Street, NW., Suite 8000, Washington, 

DC 20530, (202) 514–5621, Facsimile: (202) 

514–6381.

State of Connecticut 

Richard Blumenthal, 

Attorney General.

Michael E. Cole, 

Assistant Attorney General, Department 

Head/Antitrust Department, Federal bar No. 

ct20115.

/s/ lllllllllllllllllll

Rachel O. Davis, 

Assistant Attorney General, Antitrust 

Department, Federal bar No. ct07411, DC Bar 

No. 413157 (inactive), 55 Elm Street, 

Hartford, Connecticut 06106, Tel: (860) 808–

5041, Fax: (860) 808–5033.

For Plaintiff State of Texas 

Greg Abbott,

Attorney General of Texas.

Barry R. McBee,

First Assistant Attorney General

Edward D. Burbach,

Deputy Attorney General for Litigation.

Mark Tobey,

/s/ lllllllllllllllllll

Assistant Attorney General, Chief, Antitrust 

& Civil Medicaid Fraud Division.

Rebecca Fisher,

/s/ lllllllllllllllllll

Assistant Attorney General, Chief, Antitrust 

Section.

/s/ lllllllllllllllllll

John T. Prud’Homme, Jr.,

Assistant Attorney General, TX Bar No. 

24000322, Office of the Attorney General, 

P.O. Box 12548, Austin, Texas 78711–2548, 

512/936–1697 512/320–0975 (Facsimile).

Signature by the State of Texas on 

Preservation of Assets Stipulation and Order 

in United States of America, State of 

Connecticut and State of Texas v. Cingular 

Wireless Corporation, SBC Communications 

Inc., BellSouth Corporation and AT&T 

Wireless Services Inc.

For Defendants Cingular Wireless 

Corporation and SBC Communications Inc. 

/s/ lllllllllllllllllll

Richard L. Rosen (D.C. Bar # 307231),

Arnold & Porter LLP, 555 12th Street, NW., 

Washington, DC 20004, (202) 942–5000.

For Defendants Cingular Wireless 

Corporation and BellSouth Corporation 

/s/ lllllllllllllllllll

Stephen M. Axinn, Esq. (D.C. Bar # 478335),

Axinn, Veltrop & Harkrider LLP, 1801 K 

Street, NW., Washington, DC 20006, (202) 

912–4700.

For Defendant AT&T Wireless Services, Inc. 

/s/ lllllllllllllllllll

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

Wachtell, Lipton, Rosen & Katz, 51 W. 52nd 

Street, New York, NY 10019, (212) 403–1247.

Order

It is so ordered by the Court, this ll day 

of lllll, 2004.

/s/ lllllllllllllllllll

United States District Judge

[FR Doc. 04–25323 Filed 11–12–04; 8:45 am] 

BILLING CODE 4410–11–M

DEPARTMENT OF LABOR

Employment and Training 

Administration 

Workforce Security Programs: 

Unemployment Insurance Program 

Letter Interpreting Federal Law 

The Employment and Training 

Administration interprets Federal law 

requirements pertaining to 

unemployment compensation. These 

interpretations are issued in 

Unemployment Insurance Program 

Letters (UIPLs) to the State Workforce 

Agencies. UIPL 30–04, Change 1 is 

published in the Federal Register in 

order to inform the public. 

This UIPL provides additional 

guidance to the states regarding enacting 

legislation which conforms to the 

‘‘SUTA Dumping Prevention Act of 

2004,’’ which was signed by the 

President on August 9, 2004.

Dated: November 8, 2004. 

Emily Stover DeRocco, 

Assistant Secretary of Labor.

Employment and Training Administration, 

Advisory System, U.S. Department of Labor, 

Washington, DC 20210 

Advisory: Unemployment Insurance Program 

Letter No. 30–04 Change 1 

To: State Workforce Agencies. 

From: Cheryl Atkinson, Administrator, Office 

of Workforce Security. 

Subject: SUTA Dumping—Amendments to 

Federal Law Affecting the Federal-State 

Unemployment Compensation Program—

Additional Guidance.

1. Purpose. To provide additional guidance 

to states concerning the amendments to 

Federal law designed to prohibit ‘‘SUTA 

Dumping.’’

2. References. Public Law (Pub. L.) 108–

295, the ‘‘SUTA Dumping Prevention Act of 

2004,’’ signed by the President on August 9, 

2004; the Social Security Act (SSA); the 

Internal Revenue Code (IRC), including the 

Federal Unemployment Tax Act (FUTA); and 

Unemployment Insurance Program Letters 

(UIPLs) 30–04, 14–84, and 29–83, Change 3. 

3. Background. UIPL 30–04 informed states 

of the amendments to Federal unemployment 

compensation (UC) law made by Pub. L. 108–

295, the ‘‘SUTA Dumping Prevention Act of 

2004.’’ Pub. L. 108–295 amended the SSA by 

adding section 303(k) to establish a 

nationwide minimum standard for curbing 

SUTA dumping. States will need to amend 

their UC laws to conform with the new 

legislation. 

Since the issuance of UIPL 30–04, the 

Department of Labor has received requests 

for clarification and other questions on the 

Federal SUTA dumping requirements. This 

UIPL is issued to respond to these requests 

and questions. As was UIPL 30–04, it is a 

question and answer (Q&A) format. States are 

especially directed to Q&As 1, 2, 14, and 15, 

which include additions and modifications 

to the draft legislative language provided 

with UIPL 30–04.