Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Notices 55015 

a third-party defendant, to pay $335,000 

towards the response costs incurred by 

EPA. The proposed Consent Decree 

resolves BFI’s liability under Section 

107(a) of CERCLA, 42 U.S.C. 9607(a), for 

costs already incurred at the site by EPA 

or by the Department of Justice on 

behalf of EPA. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General for the 

Environment and Natural Resources 

Division, U.S. Department of Justice, 

P.O. Box 7611, NW., Washington, DC 

20044–7611, and should refer to United 

States v. City of New Orleans, et al., D.J. 

Ref. 90–11–3–1683/2. 

The Consent Decree may be examined 

at the Office of the United States 

Attorney, Eastern District of Louisiana, 

500 Poydras Street, Suite 210, New 

Orleans, Louisiana 70130, and at the 

offices of EPA, Region 6, 1445 Ross 

Ave., Dallas, TX 75202–2733. During 

the public comment period, the Consent 

Decree, may also be examined on the 

following Department of Justice Web 

site, http://www.usdoj.gov/enrd/ 

open.html. A copy of the Consent 

Decree may also be obtained by mail 

from the Consent Decree Library, P.O. 

Box 7611, U.S. Department of Justice, 

Washington, DC 20044–7611 or by 

faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $5.00 (25 cents per 

page reproduction cost) payable to the 

U.S. Treasury. 

Thomas A. Mariani, Jr., 

Assistant Section Chief, Envirionmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 06–7782 Filed 9–19–06; 8:45 am] 

BILLING CODE 4410–15–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Alltel Corp. Proposed 

Final Judgment and Competitive 

Impact Statement 

Notice is hereby given, pursuant to 

the Antitrust Procedures and Penalties 

Act, 15 U.S.C. 16(b)–(h), that a 

Complaint, proposed Final Judgment, 

Preservation of Assets Stipulation, and 

Competitive Impact Statement were 

filed with the United States District 

Court for the District of Minnesota in 

United States v. ALLTEL Corp., Civ. 

Action No. 0:06–cv–03631 (RHK/AJB). 

On September 7, 2006, the United States 

filed a Complaint alleging that the 

proposed acquisition of Midwest 

Wireless Holdings L.L.C. by ALLTEL 

Corp. would violate Section 7 of the 

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

substantially lessening competition in 

the provision of mobile wireless 

telecommunications services in four 

Minnesota markets. The proposed Final 

Judgment, lodged at the same time as 

the Complaint, requires ALLTEL to 

divest its mobile wireless 

telecommunication business assets in 

four markets in rural Minnesota in order 

to proceed with ALLTEL’s acquisition of 

Midwest Wireless. A Competitive 

Impact Statement filed by the United 

States describes the Complaint, the 

proposed Final Judgment, and the 

remedies available to private litigants 

who may have been injured by the 

alleged violation. 

Copies of the Complaint, proposed 

Final Judgment, Preservation of Assets 

Stipulation, and Competitive Impact 

Statement are available for inspection at 

the U.S. Department of Justice, Antitrust 

Division, 325 Seventh Street, NW., Suite 

215, Washington, DC 20530 (202–514–

2481), on the Internet at http:// 

www.usdoj.gov/atr, and at the Clerk’s 

Office of the United States District Court 

for Minnesota. Copies of these materials 

may be obtained upon request and 

payment of a copying fee. 

Public comment is invited within the 

statutory 60-day comment period. Such 

comments and responses thereto will be 

published in the Federal Register and 

filed with the Court. Comments should 

be directed to Nancy Goodman, Chief, 

Telecommunications & Media 

Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530 (202–514–5621). 

J. Robert Kramer II, 

Director of Operations Antitrust Division. 

United States of America Department of 

Justice, Antitrust Division, 1401 H Street, 

NW., Suite 8000 Washington, DC 20530, 

and State of Minnesota Minnesota Attorney 

General’s Office, 445 Minnesota Street, 

Suite 1200, St. Paul, Minnesota 55101, 

Plaintiffs, v. ALLTEL Corporation, One 

Allied Drive, Little Rock, Arkansas 72202, 

and Midwest Wireless Holdings L.L.C., 

2000 Technology Drive, Mankato, 

Minnesota 56002, Defendants 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, and the 

State of Minnesota, by its Attorney 

General Mike Hatch, bring this civil 

action to enjoin the merger of two 

mobile wireless telecommunications 

service providers, ALLTEL Corporation 

(‘‘ALLTEL’’) and Midwest Wireless 

Holdings L.L.C. (‘‘Midwest Wireless’’), 

and to obtain other relief as appropriate. 

Plaintiffs allege as follows: 

1. ALLTEL entered into an agreement 

to acquire Midwest Wireless, dated 

November 17, 2005, under which the 

two companies would combine their 

mobile wireless telecommunications 

services businesses (‘‘Transaction 

Agreement’’). Plaintiffs seek to enjoin 

this transaction because it will 

substantially lessen competition for 

mobile wireless telecommunications 

services in several geographic markets 

where ALLTEL and Midwest Wireless 

are each other’s most significant 

competitor. 

2. ALLTEL provides mobile wireless 

telecommunications services in 35 

states serving approximately 11 million 

subscribers. Midwest Wireless provides 

mobile wireless telecommunications 

services in three Midwestern states 

serving approximately 440,000 

subscribers. The combination of 

ALLTEL and Midwest Wireless will 

substantially lessen competition for 

mobile wireless telecommunications 

services in four geographic areas in 

southern Minnesota where currently 

both ALLTEL and Midwest Wireless 

operate. As a result of the proposed 

acquisition, residents of these mostly 

rural areas will face the likelihood of 

increased prices, diminished quality or 

quantity of services provided, and less 

investment in network improvements 

for these services. 

I. Jurisdiction and Venue 

3. This Complaint is filed by the 

United States under Section 15 of the 

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

and restrain defendants from violating 

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

18. Plaintiff Minnesota, by and through 

its Attorney General, brings this action 

in its sovereign capacity and as parens 

patriae on behalf of the citizens, general 

welfare, and economy of the State of 

Minnesota under Section 16 of the 

Clayton Act, 15 U.S.C. 26, to prevent 

defendants from violating Section 7 of 

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

4. ALLTEL and Midwest Wireless 

both provide mobile wireless 

telecommunications services in the 

State of Minnesota, as well as other 

states. The provision of mobile wireless 

telecommunications services is a 

commercial activity that substantially 

affects, and is in the flow of, interstate 

trade and commerce. The defendants 

purchase substantial quantities of 

handsets and equipment from sources 


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outside of Minnesota. They also have 

entered into roaming and other service 

agreements with companies located 

outside of Minnesota. The Court has 

jurisdiction over the subject matter of 

this action and jurisdiction over the 

parties pursuant to 15 U.S.C. 22, 25, and 

26, and 28 U.S.C. 1331, 1337. 

5. Venue in the District is proper 

under 15 U.S.C. 22 and 28 U.S.C. 

1391(c). 

II. The Defendants and the Transaction 

6. ALLTEL, with headquarters in 

Little Rock, Arkansas, is a corporation 

organized and existing under the laws of 

the state of Delaware. ALLTEL is the 

fifth largest provider of mobile wireless 

voice and data services in the United 

States by number of subscribers; it 

serves approximately 11 million 

customers. It provides mobile wireless 

telecommunications services in 233 

Rural Service Areas and 116 

Metropolitan Statistical Areas located 

within 35 states and roaming services to 

other mobile wireless providers who use 

CDMA, TDMA and GSM technology in 

these areas. In 2005, ALLTEL earned 

wireless revenues of approximately 

$6.572 billion. 

7. Midwest Wireless, with 

headquarters in Mankato, Minnesota, is 

a privately-held Delaware limitedliability company. Midwest Wireless 

provides wireless service in 14 Rural 

Service Areas and one Metropolitan 

Statistical Area located in Minnesota, 

Iowa, and Wisconsin and has 

approximately 440,000 customers. In 

2005, Midwest Wireless earned 

approximately $264 million in 

revenues. 

8. Pursuant to the Transaction 

Agreement dated November 17, 2005, 

ALLTEL will acquire Midwest Wireless 

for approximately $1.075 billion in 

cash. If this transaction is 

consummated, ALLTEL and Midwest 

Wireless combined would have 

approximately 11.5 million subscribers 

in the United States, with $7.8 billion in 

revenues and operations in 35 states. 

III. Trade and Commerce 

A. Nature of Trade and Commerce 

9. Mobile wireless 

telecommunications services allow 

customers to make and receive 

telephone calls and use data services 

using radio transmissions without being 

confined to a small area during the call 

or data session, and without the need 

for unobstructed line-of-sight to the 

radio tower. Mobility is highly prized by 

customers, as demonstrated by the more 

than 180 million people in the United 

States who own mobile wireless 

telephones. In 2005, revenues from the 

sale of mobile wireless services in the 

United States were over $113 billion. To 

meet this desire for mobility, mobile 

wireless telecommunications services 

providers must deploy an extensive 

network of switches and radio 

transmitters and receivers, and 

interconnect this network with the 

networks of wireline carriers and with 

other wireless providers. 

10. The first wireless voice systems 

were based on analog technology, now 

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

technology. These analog systems were 

launched after the Federal 

Communications Commission (‘‘FCC’’) 

issued the first licenses for mobile 

wireless telephone service: two cellular 

licenses (A-block and B-block) in each 

geographic area in the early to mid1980s. The licenses are in the 800 MHz 

range of the radio spectrum, each 

license consists of 25 MHz of spectrum, 

and they are issued for each 

Metropolitan Statistical Area (‘‘MSA’’) 

and Rural Service Area (‘‘RSA’’) 

(collectively, ‘‘Cellular Marketing 

Areas’’ or ‘‘CMAs’’), with a total of 734 

CMAs covering the entire United States. 

In 1982, one of the licenses was issued 

to the incumbent local exchange carrier 

in the market, and the other was issued 

by lottery to someone other than the 

incumbent. In the relevant geographic 

markets, ALLTEL and Midwest Wireless 

each own one of the cellular licenses. 

11. In 1995, the FCC allocated and 

subsequently issued licenses for 

additional spectrum for the provision of 

Personal Communications Services 

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

includes mobile wireless 

telecommunications services 

comparable to those offered by cellular 

licensees. These licenses are in the 1.9 

GHz range of the radio spectrum and are 

divided into six blocks: A, B, and C, 

which consist of 30 MHz each; and D, 

E, and F, which consist of 10 MHz each. 

Geographically, the A and B-block 30 

MHz licenses are issued by Major 

Trading Areas (‘‘MTAs’’), and C, D, E, 

and F-block licenses are issued by Basic 

Trading Areas (‘‘BTAs’’), several of 

which comprise each MTA. MTAs and 

BTAs do not generally correspond to 

MSAs and RSAs. With the introduction 

of the PCS licenses, both cellular and 

PCS licensees began offering digital 

services, thereby increasing capacity, 

shrinking handsets, and extending 

battery life. In 1996, one provider, a 

specialized mobile radio (‘‘SMR’’ or 

‘‘dispatch’’) spectrum licensee, began to 

use its SMR spectrum to offer mobile 

wireless telecommunications services 

comparable to those offered by other 

mobile wireless telecommunications 

services providers, in conjunction with 

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

Although there are a number of 

providers holding spectrum licenses in 

each area of the country, not all 

providers have fully built out their 

networks throughout each license area. 

In particular, because of the 

characteristics of PCS spectrum, 

providers holding this type of spectrum 

have found it less attractive to build out 

in rural areas. 

12. Today, more than 99% of the total 

U.S. population lives in counties where 

mobile wireless telecommunications 

services operators offer digital service, 

and nearly all mobile wireless voice 

service has migrated to secondgeneration or ‘‘2G’’ digital technologies: 

TDMA (time division multiple access), 

GSM (global standard for mobile, a type 

of TDMA standard used by all carriers 

in Europe), and CDMA (code division 

multiple access). Mobile wireless 

telecommunications services providers 

have chosen to build their networks on 

these incompatible technologies and 

most have chosen CDMA or GSM, with 

TDMA having been orphaned by 

equipment vendors. (The SMR 

providers use a fourth incompatible 

technological standard better suited to 

the spectrum they own, and, as SMR 

licensees, they have no obligation to 

support a specific technology standard.) 

Even more advanced technologies 

(‘‘2.5G’’ and ‘‘3G’’) have begun to be 

deployed for voice and data. 

B. Relevant Product Market 

13. Mobile wireless 

telecommunications services is a 

relevant product market. Mobile 

wireless telecommunications services 

include both voice and data services 

provided over a radio network and 

allows customers to maintain their 

telephone calls or data sessions without 

wires, such as when traveling. There are 

no cost-effective alternatives to mobile 

wireless telecommunications services. 

Fixed wireless services are not mobile 

(e.g., Wi-Fi), and therefore are not a 

viable alternative to mobile wireless 

telecommunications service. It is 

unlikely that a sufficient number of 

customers would switch away from 

mobile wireless telecommunications 

services to make a small but significant 

price increase in those services 

unprofitable. Mobile wireless 

telecommunications services is a 

relevant product market under Section 7 

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

C. Relevant Geographic Markets 

14. The large majority of customers 

use mobile wireless telecommunications 

services in close proximity to their 


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workplaces and homes. Thus, customers 

purchasing mobile wireless 

telecommunications services choose 

among mobile wireless 

telecommunications services providers 

that offer services where they are 

located and travel on a regular basis: 

home, work, other areas they commonly 

visit, and areas in between. The number 

and identity of mobile wireless 

telecommunications services providers 

varies among geographic areas, along 

with the quality of their services and the 

breadth of their geographic coverage, all 

of which are significant factors in 

customers’ purchasing decisions. 

Mobile wireless telecommunications 

services providers can and do offer 

different promotions, discounts, calling 

plans, and equipment subsidies in 

different geographic areas, effectively 

varying the price for customers by 

geographic area. 

15. The United States comprises 

numerous local geographic markets for 

mobile wireless telecommunications 

services. The FCC has licensed a limited 

number of mobile wireless 

telecommunications services providers 

in each local area based upon the 

availability of radio spectrum. These 

FCC spectrum licensing areas often 

represent the core of the business and 

social sphere where customers face the 

same competitive choices for mobile 

wireless telecommunications services. 

The relevant geographic markets in 

which this transaction will substantially 

lessen competition in mobile wireless 

telecommunications services are 

effectively represented, but not defined, 

by FCC spectrum licensing areas. 

16. The relevant geographic markets, 

under Section 7 of the Clayton Act, 15 

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

substantially lessen competition for 

mobile wireless telecommunications 

services are represented by the 

following FCC spectrum licensing areas 

which are all RSAs located in southern 

Minnesota: Minnesota RSA–7 (CMA 

488), Minnesota RSA–8 (CMA 489), 

Minnesota RSA–9 (CMA 490), and 

Minnesota RSA–10 (CMA 491). It is 

unlikely that a sufficient number of 

customers would switch to mobile 

wireless telecommunications services 

providers in a different geographic 

market to make a small but significant 

price increase in the relevant geographic 

markets unprofitable for mobile wireless 

telecommunications services. 

D. Anticompetitive Effects 

1. Mobile Wireless Telecommunications 

Services 

17. The companies’ combined market 

shares for mobile wireless 

telecommunications services in the 

relevant markets described above, as 

measured in terms of subscribers, range 

from over 60% to nearly 95%. In each 

relevant geographic market, Midwest 

Wireless has the largest market share 

and, in all but one RSA, ALLTEL is the 

second-largest mobile wireless 

telecommunications services provider. 

In all of the relevant geographic 

markets, ALLTEL and Midwest Wireless 

own the only 800 MHz band cellular 

spectrum licenses, which are more 

efficient in serving rural areas than 1900 

MHz band PCS spectrum. As a result of 

holding the cellular spectrum licenses 

and being early entrants into these 

markets, ALLTEL’s and Midwest 

Wireless’s networks provide greater 

depth and breadth of coverage than their 

competitors, which are operating on 

PCS spectrum in the relevant geographic 

markets, and thus are more attractive to 

consumers. 

In addition, mobile wireless 

telecommunications services providers 

with partial coverage in a geographic 

area do not aggressively market their 

services in these markets because 

potential customers would use their 

wireless telephones primarily in areas 

where these providers have no network. 

In theory, these less-built-out providers 

could serve residents of the rural areas 

through roaming agreements but, as a 

practical matter, when service is 

provided on another carrier’s network, 

the providers have to pay roaming 

charges to, and rely on, that provider to 

maintain the quality of the network. 

Because of these constraints, carriers 

with limited network coverage in an 

area are reluctant to market their 

services to residents of that area. 

Therefore, ALLTEL and Midwest 

Wireless are likely closer substitutes for 

each other than the other mobile 

wireless telecommunications services 

providers who own only PCS spectrum 

in the relevant geographic markets. 

18. The relevant geographic markets 

for mobile wireless services are highly 

concentrated. As measured by the 

Herfindahl-Hirschman Index (‘‘HHI’’), 

which is commonly employed in merger 

analysis and is defined and explained in 

Appendix A to this Complaint, 

concentration in these markets ranges 

from over 3600 to more than 5600, 

which is well above the 1800 threshold 

at which the Department considers a 

market to be highly concentrated. After 

ALLTEL’s proposed acquisition of 

Midwest Wireless is consummated, the 

HHIs in the relevant geographic markets 

will range from over 4700 to over 9100, 

with increases in the HHI as a result of 

the merger ranging from over 1000 to 

over 4100, significantly beyond the 

thresholds at which the Department 

considers a transaction likely to cause 

competitive harm. 

19. Competition between ALLTEL and 

Midwest Wireless in the relevant 

geographic markets has resulted in 

lower prices and higher quality in 

mobile wireless telecommunications 

services, than would otherwise have 

existed in these geographic markets. In 

these areas, consumers consider 

ALLTEL and Midwest Wireless to be the 

most attractive competitors because 

other providers’ networks lack coverage 

or provide lower-quality service. If 

ALLTEL’s proposed acquisition of 

Midwest Wireless is consummated, the 

relevant geographic markets for mobile 

wireless telecommunications services 

will become substantially more 

concentrated, and the competition 

between ALLTEL and Midwest Wireless 

in mobile wireless telecommunications 

services will be eliminated in these 

markets. As a result, the loss of 

competition between ALLTEL and 

Midwest Wireless increases the 

likelihood of unilateral actions by the 

merged firm in the relevant geographic 

markets to increase prices, diminish the 

quality or quantity of services provided, 

and refrain from or delay making 

investments in network improvements. 

Therefore, ALLTEL’s proposed 

acquisition of Midwest Wireless will 

likely result in substantially less 

competition in mobile wireless 

telecommunications services in the 

relevant geographic markets. 

2. Entry 

20. Entry by a new mobile wireless 

telecommunications services provider 

in the relevant geographic markets 

would be difficult, time-consuming, and 

expensive, requiring the acquisition of 

spectrum licenses and the build-out of 

a network. Expansion by providers who 

hold spectrum in these areas is also 

unlikely as the relevant geographic 

markets are rural service areas where 

the combined firm would own all of the 

available 800 MHz cellular spectrum. 

Due to propagation characteristics of 

800 MHz cellular spectrum and 1900 

MHz PCS spectrum, the 800 MHz 

signals can cover a substantially broader 

area than the 1900 MHz signals. The 

estimated coverage advantage of the 800 

MHz cellular spectrum in rural areas 

ranges from two to as much as five times 

greater than PCS. In rural markets, this 

difference results in higher build-out 

costs for PCS networks than for cellular 

networks. The high costs of constructing 

PCS networks in rural markets 

combined with the relatively low 

population density makes it less likely 

that carriers that own PCS spectrum 


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would build out in the relevant 

geographic markets. Therefore, new 

entry in response to a small but 

significant price increase for mobile 

wireless services by the merged firm in 

the relevant geographic markets would 

not be timely, likely, or sufficient to 

thwart the competitive harm resulting 

from ALLTEL’s proposed acquisition of 

Midwest Wireless, if it were to be 

consummated. 

IV. Violation Alleged 

21. The effect of ALLTEL’s proposed 

acquisition of Midwest Wireless, if it 

were to be consummated, may be 

substantially to lessen competition in 

interstate trade and commerce in the 

relevant geographic markets for mobile 

wireless telecommunications services, 

in violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

22. Unless restrained, the transaction 

will likely have the following effects in 

mobile wireless telecommunications 

services in the relevant geographic 

markets, among others: 

a. Actual and potential competition 

between ALLTEL and Midwest Wireless 

will be eliminated; 

b. Competition in general will be 

lessened substantially; 

c. Prices are likely to increase; 

d. The quality and quantity of services 

are likely to decrease; and 

e. Incentives to improve wireless 

networks will be reduced. 

V. Requested Relief 

The plaintiffs request: 

23. That ALLTEL’s proposed 

acquisition of Midwest Wireless be 

adjudged to violate Section 7 of the 

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

24. That defendants be permanently 

enjoined from and restrained from 

carrying out the Transaction Agreement, 

dated November 17, 2005, or from 

entering into or carrying out any 

agreement, understanding, or plan, the 

effect of which would be to bring the 

wireless services businesses of ALLTEL 

and Midwest Wireless under common 

ownership or control; 

25. That plaintiffs be awarded their 

costs of this action; and 

26. That plaintiffs have such other 

relief as the Court may deem just and 

proper. 

Dated: 

Respectfully Submitted, 

For Plaintiff United States of America 

Thomas O. Barnett, 

Assistant Attorney General, Antitrust 

Division. 

J. Bruce McDonald, 

Deputy Assistant Attorney General, Antitrust 

Division. 

J. Robert Kramer II, 

Director of Operations, Antitrust Division. 

Nancy Goodman, 

Chief, Telecommunications & Media, 

Enforcement Section, Antitrust Division. 

Laury Bobbish, 

Assistant Chief, Telecommunications & 

Media Enforcement Section, Antitrust 

Division. 

Hillary B. Burchuk, Lawrence M. Frankel. 

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, City Center Building, 

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

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

514–6381. 

Rachel K. Paulose, 

United States Attorney. 

Perry F. Sekus, 

Assistant United States Attorney, Attorney 

I.D. No. 0309412, 600 United States 

Courthouse, 300 South Fourth Street, 

Minneapolis, MN 55415, (612) 664–5600, 

Facsimile: (612) 664–5788. 

For Plaintiff State of Minnesota 

Mike Hatch, 

Attorney General, State of Minnesota. 

Kristen M. Olsen, 

Assistant Attorney General, Atty. Reg. No. 

030489X, 445 Minnesota Street, Suite 1200, 

St. Paul, Minnesota 55101–2130, (651) 296–

2921, Facsimile: (651) 282–5437. 

Appendix A—Herfindahl-Hirschman 

Index 

‘‘HHI’’ means the HerfindahlHirschman Index, a commonly accepted 

measure of market concentration. It is 

calculated by squaring the market share 

of each firm competing in the market 

and then summing the resulting 

numbers. For example, for a market 

consisting of four finns with shares of 

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

2600 (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 Minnesota 

United States of America and State of 

Minnesota Plaintiffs, v. ALLTEL 

Corporation and Midwest Wireless 

Holdings L.L.C., Defendants 

Final Judgment 

Whereas, plaintiffs, United States of 

America and the State of Minnesota, 

filed their Complaint on September 7, 

2006, plaintiffs and defendants, 

ALLTEL Corporation (’’ALLTEL’’) and 

Midwest Wireless Holdings L.L.C. 

(‘‘Midwest Wireless’’), by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And Whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And Whereas, the essence of this 

Final Judgment is the prompt and 

certain divestiture of certain rights or 

assets by defendants to assure that 

competition is not substantially 

lessened; 

And Whereas, plaintiffs require 

defendants to make certain divestitures 

for the purpose of remedying the loss of 

competition alleged in the Complaint; 

And Whereas, defendants have 

represented to plaintiffs that the 

divestitures required below can and will 

be made and that defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now Therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is Ordered, 

Adjudged and Decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under Section 7 of 

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

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ means the entity to 

whom defendants divest the Divestiture 

Assets. 

B. ‘‘ALLTEL’’ means defendant 

ALLTEL Corporation, a Delaware 


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corporation with headquarters in Little 

Rock, Arkansas, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘CMA’’ means cellular market area 

which is used by the Federal 

Communications Commission (‘‘FCC’’) 

to define cellular license areas and 

which consists of Metropolitan 

Statistical Areas (‘‘MSAs’’) and Rural 

Service Areas (‘‘RSAs’’). 

D. ‘‘Divestiture Assets’’ means each 

mobile wireless telecommunications 

services business to be divested under 

this Final Judgment, including all types 

of assets, tangible and intangible, used 

by defendants in the operation of the 

mobile wireless telecommunications 

services businesses to be divested. 

‘‘Divestiture Assets’’ shall be construed 

broadly to accomplish the complete 

divestiture of the entire business of 

ALLTEL in each of the following RSA 

license areas as required by this Final 

Judgment and to ensure that the 

divested mobile wireless 

telecommunications services businesses 

remain viable, ongoing businesses: 

(1) Minnesota RSA–7 (CMA 488); 

(2) Minnesota RSA–8 (CMA 489); 

(3) Minnesota RSA–9 (CMA 490); and 

(4) Minnesota RSA–10 (CMA 491) 

provided that ALL TEL may retain all of 

the PCS spectrum it currently holds in 

each of these RSAs and equipment that 

is used only for wireless transmissions 

over this PCS spectrum, and provided 

that ALL TEL need not divest the assets 

used solely to operate ALLTEL’s GSM 

roaming business in these RSAs, 

including GSM roaming contracts and 

equipment. 

The Divestiture Assets shall include, 

without limitation, all types of real and 

personal property, monies and financial 

instruments, equipment, inventory, 

office furniture, fixed assets and 

furnishings, supplies and materials, 

contracts, agreements, leases, 

commitments, spectrum licenses issued 

by the FCC and all other licenses, 

permits and authorizations, operational 

support systems, cell sites, network 

infrastructure, switches, customer 

support and billing systems, interfaces 

with other service providers, business 

and customer records and information, 

customer contracts, customer lists, 

credit records, accounts, and historic 

and current business plans which relate 

primarily to the wireless businesses 

being divested, as well as any patents, 

licenses, sub-licenses, trade secrets, 

know-how, drawings, blueprints, 

designs, technical and quality 

specifications and protocols, quality 

assurance and control procedures, 

manuals and other technical 

information defendant ALLTEL supplies 

to its own employees, customers, 

suppliers, agents, or licensees, and 

trademarks, trade names and service 

marks or other intellectual property, 

including all intellectual property rights 

under third-party licenses that are 

capable of being transferred to an 

Acquirer either in their entirety, for 

assets described in (1) below, or through 

a license obtained through or from 

ALLTEL, for assets described in (2) 

below; provided that defendants shall 

only be required to divest Multi-line 

Business Customer contracts, if the 

primary business address for that 

customer is located within any of the 

four license areas described herein, and 

further, any subscriber who obtains 

mobile wireless telecommunications 

services through any such contract 

retained by defendants and who are 

located within the four geographic areas 

identified above, shall be given the 

option to terminate their relationship 

with defendants, without financial cost, 

at any time within one year of the 

closing of the Transaction. Defendants 

shall provide written notice to these 

subscribers within 45 days after the 

closing of the Transaction of the option 

to terminate. 

The divestiture of the Divestiture 

Assets shall be accomplished by: 

(1) Transferring to the Acquirer the 

complete ownership and/or other rights 

to the assets (other than those assets 

used substantially in the operations of 

ALL TEL’s overall wireless 

telecommunications services business 

which must be retained to continue the 

existing operations of the wireless 

properties that defendants are not 

required to divest, and that either are 

not capable of being divided between 

the divested wireless 

telecommunications services businesses 

and those not divested, or are assets that 

the defendants and the Acquirer agree, 

subject to approval of plaintiff United 

States upon consultation with plaintiff 

Minnesota, shall not be divided); and 

(2) Granting to the Acquirer an option 

to obtain a nonexclusive, transferable 

license from defendants for a reasonable 

period, subject to approval of plaintiff 

United States upon consultation with 

plaintiff Minnesota, at the election of an 

Acquirer to use any of ALLTEL’s 

retained assets under paragraph (1) 

above, used in the operation of the 

mobile wireless telecommunications 

services businesses being divested, so as 

to enable the Acquirer to continue to 

operate the divested mobile wireless 

telecommunications services businesses 

without impairment. Defendants shall 

identify in a schedule submitted to 

plaintiffs and filed with the Court, as 

expeditiously as possible following the 

filing of the Complaint and in any event 

prior to any divestiture and before the 

approval by the Court of this Final 

Judgment, any intellectual property 

rights under third-party licenses that are 

used by the mobile wireless 

telecommunications services businesses 

being divested but that defendants 

could not transfer to an Acquirer 

entirely or by license without thirdparty consent, and the specific reasons 

why such consent is necessary and how 

such consent would be obtained for 

each asset. 

E. ‘‘GSM’’ means global system for 

mobile communications which is one of 

the standards used for the infrastructure 

of digital cellular service. 

F. ‘‘Midwest Wireless’’ means 

defendant Midwest Wireless Holdings 

L.L.C., a Delaware Limited Liability 

Company, with headquarters in 

Mankato, Minnesota, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

G. ‘‘Multi-line Business Customer’’

means a corporate or business customer 

that contracts with ALLTEL for mobile 

wireless services to provide multiple 

telephones to its employees or members 

whose services are provided pursuant to 

a contract with the corporate or business 

customer. 

H. ‘‘Transaction’’ means the 

Transaction Agreement between 

ALLTEL and Midwest Wireless, dated 

November 17, 2005. 

III. Applicability 

A. This Final Judgment applies to 

defendants ALLTEL and Midwest 

Wireless, as defined above, and all other 

persons in active concert or 

participation with any of them who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

B. Defendants shall require, as a 

condition of the sale or other 

disposition of all or substantially all of 

their assets or of lesser business units 

that include the Divestiture Assets, that 

the purchaser agrees to be bound by the 

provisions of this Final Judgment, 

provided that defendants need not 

obtain such an agreement from the 

Acquirer. 

IV. Divestitures 

A. Defendants are ordered and 

directed, within 120 days after 

consummation of the Transaction, or 

five days after notice of entry of this 

Final Judgment, whichever is later, to 


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divest the Divestiture Assets to an 

Acquirer acceptable to plaintiff United 

States in its sole discretion upon 

consultation with plaintiff Minnesota, 

or, if applicable, to a Divestiture Trustee 

designated pursuant to Section V of this 

Final Judgment. Plaintiff United States, 

in its sole discretion upon consultation 

with plaintiff Minnesota, may agree to 

one or more extensions of this time 

period not to exceed 60 days in total, 

and shall notify the Court in such 

circumstances. With respect to 

divestiture of the Divestiture Assets by 

defendants or the Divestiture Trustee, if 

applications have been filed with the 

FCC within the period permitted for 

divestiture seeking approval to assign or 

transfer licenses to the Acquirer of the 

Divestiture Assets, but an order or other 

dispositive action by the FCC on such 

applications has not been issued before 

the end of the period permitted for 

divestiture, the period shall be extended 

with respect to divestiture of those 

Divestiture Assets for which FCC 

approval has not been issued until five 

days after such approval is received. 

Defendants agree to use their best efforts 

to accomplish the divestitures set forth 

in this Final Judgment and to seek all 

necessary regulatory approvals as 

expeditiously as possible. This Final 

Judgment does not limit the FCC’s 

exercise of its regulatory powers and 

process with respect to the Divestiture 

Assets. Authorization by the FCC to 

conduct the divestiture of a Divestiture 

Asset in a particular manner will not 

modify any of the requirements of this 

decree. 

B. In accomplishing the divestitures 

ordered by this Final Judgment, 

defendants shall promptly make known, 

if they have not already done so, by 

usual and customary means, the 

availability of the Divestiture Assets. 

Defendants shall inform any person 

making inquiry regarding a possible 

purchase of the Divestiture Assets that 

they are being divested pursuant to this 

Final Judgment and provide that person 

with a copy of this Final Judgment. 

Defendants shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client or work 

product privileges. Defendants shall 

make available such information to 

plaintiffs at the same time that such 

information is made available to any 

other person. 

C. Defendants shall provide to the 

Acquirer and plaintiffs information 

relating to the personnel involved in the 

operation, development, and sale of 

mobile wireless telecommunications 

services in the relevant RSAs to enable 

the Acquirer to make offers of 

employment. Defendants will not 

interfere with any negotiations by the 

Acquirer to employ any defendant 

employee whose primary responsibility 

is the operation, development, or sale of 

mobile wireless services in the relevant 

RSAs. 

D. Defendants shall permit 

prospective Acquirers of the Divestiture 

Assets to have reasonable access to 

personnel and to make inspections of 

the Divestiture Assets; access to any and 

all environmental, zoning, and other 

permit documents and information; and 

access to any and all financial, 

operational, and other documents and 

information customarily provided as 

part of a due diligence process. 

E. Defendants shall warrant to the 

Acquirer that (1) The Divestiture Assets 

will be operational on the date of sale, 

and (2) every wireless spectrum license 

is in full force and effect on the date of 

sale. 

F. Defendants shall not take any 

action that will impede in any way the 

permitting, licensing, operation, or 

divestiture of the Divestiture Assets. 

G. Defendants shall warrant to the 

Acquirer of the Divestiture Assets that 

there are no defects in the 

environmental, zoning, licensing or 

other permits pertaining to the 

operation of each asset that will have a 

material adverse effect on the operator 

of the mobile wireless 

telecommunications services business 

in which the asset is primarily used, 

and that following the sale of the 

Divested Assets, defendants will not 

undertake, directly or indirectly, any 

challenges to the environmental, zoning, 

licensing or other permits relating to the 

operation of the Divestiture Assets. 

H. Unless plaintiff United States upon 

consultation with plaintiff Minnesota 

otherwise consents in writing, the 

divestitures pursuant to Section IV, or 

by a Divestiture Trustee appointed 

pursuant to Section V of this Final 

Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

plaintiff United States in its sole 

discretion upon consultation with 

plaintiff Minnesota that these assets can 

and will be used by the Acquirer as part 

of a viable, ongoing business engaged in 

the provision of mobile wireless 

telecommunications services. The 

Divestiture Assets shall all be divested 

to a single Acquirer. The divestiture of 

the Divestiture Assets, whether 

pursuant to Section IV or Section V of 

this Final Judgment, 

(1) Shall be made to an Acquirer that, 

in plaintiff United States’s sole 

judgment upon consultation with 

plaintiff Minnesota, has the intent and 

capability (including the necessary 

managerial, operational, technical, and 

financial capability) of competing 

effectively in the provision of mobile 

wireless telecommunications services; 

and 

(2) Shall be accomplished so as to 

satisfy plaintiff United States in its sole 

discretion upon consultation with 

plaintiff Minnesota, that none of the 

terms of any agreement between the 

Acquirer and any defendant shall give 

defendants the ability unreasonably to 

raise the Acquirer’s costs, to lower the 

Acquirer’s efficiency, or otherwise to 

interfere with the ability of the Acquirer 

to compete effectively. 

I. At the option of the Acquirer of the 

Divestiture Assets, defendants shall 

enter into a contract for transition 

services customarily provided in 

connection with the sale of a business 

providing mobile wireless 

telecommunications services sufficient 

to meet all or part of the needs of the 

Acquirer for a period of up to one year. 

The terms and conditions of any 

contractual arrangement meant to satisfy 

this provision must be reasonably 

related to market conditions. 

J. To the extent that the Divestiture 

Assets use intellectual property, as 

required to be identified by Section II.D, 

that cannot be transferred or assigned 

without the consent of the licensor or 

other third parties, defendants shall use 

their best efforts to obtain those 

consents. 

V. Appointment of Divestiture Trustee 

A. If defendants have not divested the 

Divestiture Assets within the time 

period specified in Section IV.A, 

defendants shall notify plaintiffs of that 

fact in writing, specifically identifying 

the Divestiture Assets that have not 

been divested. Then, upon application 

of plaintiff United States upon 

consultation with plaintiff Minnesota, 

the Court shall appoint a Divestiture 

Trustee selected by plaintiff United 

States and approved by the Court to 

effect the divestiture of the Divestiture 

Assets. The Divestiture Trustee will 

have all the rights and responsibilities 

of the Management Trustee appointed 

pursuant to the Preservation of Assets 

Order, and will be responsible for: 

(1) Accomplishing divestiture of all 

Divestiture Assets transferred to the 

Divestiture Trustee from defendants, in 

accordance with the terms of this Final 

Judgment, to an Acquirer approved by 

plaintiff United States upon 

consultation with plaintiff Minnesota, 


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under Section IV.A of this Final 

Judgment; and 

(2) exercising the responsibilities of 

the licensee of any transferred 

Divestiture Assets and controlling and 

operating any transferred Divestiture 

Assets, to ensure that the businesses 

remain ongoing, economically viable 

competitors in the provision of mobile 

wireless telecommunications services in 

the four license areas specified in 

Section II.D, until they are divested to 

an Acquirer, and the Divestiture Trustee 

shall agree to be bound by this Final 

Judgment. 

B. Defendants shall submit a proposed 

trust agreement (‘‘Trust Agreement’’) to 

plaintiffs, which must be consistent 

with the terms of this Final Judgment 

and which must receive approval by 

plaintiff United States in its sole 

discretion upon consultation with 

plaintiff Minnesota, who shall 

communicate to defendants within 10 

business days its approval or 

disapproval of the proposed Trust 

Agreement, and which must be 

executed by the defendants and the 

Divestiture Trustee within five business 

days after approval by plaintiff United 

States. 

C. After obtaining any necessary 

approvals from the FCC for the 

assignment of the licenses of the 

Divestiture Assets to the Divestiture 

Trustee, defendants shall irrevocably 

divest the Divestiture Assets to the 

Divestiture Trustee, who will own such 

assets (or own the stock of the entity 

owning such assets, if divestiture is to 

be effected by the creation of such an 

entity for sale to Acquirer) and control 

such assets, subject to the terms of the 

approved Trust Agreement. 

D. After the appointment of a 

Divestiture Trustee becomes effective, 

only the Divestiture Trustee shall have 

the right to sell the Divestiture Assets. 

The Divestiture Trustee shall have the 

power and authority to accomplish the 

divestiture to an Acquirer acceptable to 

plaintiff United States, in its sole 

judgment upon consultation with 

plaintiff Minnesota, at such price and 

on such terms as are then obtainable 

upon reasonable effort by the 

Divestiture Trustee, subject to the 

provisions of Sections IV, V, and VI of 

this Final Judgment, and shall have 

such other powers as this Court deems 

appropriate. Subject to Section V.G of 

this Final Judgment, the Divestiture 

Trustee may hire at the cost and 

expense of defendants the Management 

Trustee appointed pursuant to the 

Preservation of Assets Order, and any 

investment bankers, attorneys or other 

agents, who shall be solely accountable 

to the Divestiture Trustee, reasonably 

necessary in the Divestiture Trustee’s 

judgment to assist in the divestiture. 

E. In addition, notwithstanding any 

provision to the contrary, plaintiff 

United States, in its sole discretion 

upon consultation with plaintiff 

Minnesota, may require defendants to 

include additional assets, or allow, with 

the written approval of plaintiff United 

States upon consultation with plaintiff 

Minnesota, defendants to substitute 

substantially similar assets, which 

substantially relate to the Divestiture 

Assets to be divested by the Divestiture 

Trustee to facilitate prompt divestiture 

to an acceptable Acquirer. 

F. Defendants shall not object to a sale 

by the Divestiture Trustee on any 

ground other than the Divestiture 

Trustee’s malfeasance. Any such 

objections by defendants must be 

conveyed in writing to plaintiffs and the 

Divestiture Trustee within 10 calendar 

days after the Divestiture Trustee has 

provided the notice required under 

Section VI. 

G. The Divestiture Trustee shall serve 

at the cost and expense of defendants, 

on such terms and conditions as 

plaintiff United States approves, and 

shall account for all monies derived 

from the sale of the assets sold and all 

costs and expenses so incurred. After 

approval by the Court of the Divestiture 

Trustee’s accounting, including fees for 

its services and those of any 

professionals and agents retained by the 

Divestiture Trustee, all remaining 

money shall be paid to defendants and 

the trust shall then be terminated. The 

compensation of the Divestiture Trustee 

and any professionals and agents 

retained by the Divestiture Trustee shall 

be reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the Divestiture 

Trustee with an incentive based on the 

price and terms of the divestiture, and 

the speed with which it is 

accomplished, but timeliness is 

paramount. 

H. Defendants shall use their best 

efforts to assist the Divestiture Trustee 

in accomplishing the required 

divestitures including their best efforts 

to effect all necessary regulatory 

approvals and will provide any 

necessary representations or warranties 

as appropriate related to sale of the 

Divestiture Assets. The Divestiture 

Trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the Divestiture 

Trustee shall have full and complete 

access to the personnel, books, records, 

and facilities of the businesses to be 

divested, and defendants shall develop 

financial and other information relevant 

to the assets to be divested as the 

Divestiture Trustee may reasonably 

request, subject to reasonable protection 

for trade secret or other confidential 

research, development, or commercial 

information. Defendants shall take no 

action to interfere with or to impede the 

Divestiture Trustee’s accomplishment of 

the divestitures. 

I. After its appointment, the 

Divestiture Trustee shall file monthly 

reports with plaintiffs and the Court 

setting forth the Divestiture Trustee’s 

efforts to accomplish the divestitures 

ordered under this Final Judgment. To 

the extent such reports contain 

information that the Divestiture Trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. If the Divestiture Trustee 

designates any information as 

‘‘confidential’’ in any report or notice he 

submits pursuant to this Final 

Judgment, within five business days 

after the submission of such report, any 

plaintiff that objects to the designation 

of information as ‘‘confidential’’ will 

notify the Divestiture Trustee. Such 

reports shall include the name, address, 

and telephone number of each person 

who, during the preceding month, made 

an offer to acquire, expressed an interest 

in acquiring, entered into negotiations 

to acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

the Divestiture Assets, and shall 

describe in detail each contact with any 

such person. The Divestiture Trustee 

shall maintain full records of all efforts 

made to divest the Divestiture Assets. 

J. If the Divestiture Trustee has not 

accomplished such divestitures within 

six months after its appointment, the 

Divestiture Trustee shall promptly file 

with the Court a report setting forth (1) 

The Divestiture Trustee’s efforts to 

accomplish the required divestitures, (2) 

the reasons, in the Divestiture Trustee’s 

judgment, why the required divestitures 

have not been accomplished, and (3) the 

Divestiture Trustee’s recommendations. 

To the extent such reports contain 

information that the Divestiture Trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. The Divestiture Trustee shall at 

the same time furnish such report to the 

plaintiffs, who shall have the right to 

make additional recommendations 

consistent with the purpose of the trust. 

The Court thereafter shall enter such 

orders as it shall deem appropriate to 

carry out the purpose of the Final 

Judgment, which may, if necessary, 

include extending the trust and the term 

of the Divestiture Trustee’s appointment 

by a period requested by plaintiff 

United States upon consultation with 

plaintiff Minnesota. 


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K. After defendants transfer the 

Divestiture Assets to the Divestiture 

Trustee, and until those Divestiture 

Assets have been divested to an 

Acquirer approved by plaintiff United 

States pursuant to Sections IV.A and 

IV.R, the Divestiture Trustee shall have 

sole and complete authority to manage 

and operate the Divestiture Assets and 

to exercise the responsibilities of the 

licensee, and shall not be subject to any 

control or direction by defendants. 

Defendants shall not use or retain any 

economic interest in the Divestiture 

Assets transferred to the Divestiture 

Trustee, apart from the right to receive 

the proceeds of the sale or other 

disposition of the Divestiture Assets. 

L. The Divestiture Trustee shall 

operate the Divestiture Assets consistent 

with the Preservation of Assets Order 

and this Final Judgment, with control 

over operations, marketing, and sales. 

Defendants shall not attempt to 

influence the business decisions of the 

Divestiture Trustee concerning the 

operation and management of the 

Divestiture Assets, and shall not 

communicate with the Divestiture 

Trustee concerning divestiture of the 

Divestiture Assets or take any action to 

influence, interfere with, or impede the 

Divestiture Trustee’s accomplishment of 

the divestitures required by this Final 

Judgment, except that defendants may 

communicate with the Divestiture 

Trustee to the extent necessary for 

defendants to comply with this Final 

Judgment and to provide the Divestiture 

Trustee, if requested to do so, with 

whatever resources or cooperation may 

be required to complete divestiture of 

the Divestiture Assets and to carry out 

the requirements of the Preservation of 

Assets Order and this Final Judgment. 

Except as provided in this Final 

Judgment and the Preservation of Assets 

Order, in no event shall defendants 

provide to, or receive from, the 

Divestiture Trustee or the mobile 

wireless telecommunications services 

businesses to be divested any nonpublic or competitively sensitive 

marketing, sales, pricing or other 

information relating to their respective 

mobile wireless telecommunications 

services businesses. 

VI. Notice of Proposed Divestitures 

A. Within two business days 

following execution of a definitive 

divestiture agreement, defendants or the 

Divestiture Trustee, whichever is then 

responsible for effecting the divestitures 

required herein, shall notify plaintiffs in 

writing of any proposed divestiture 

required by Section IV or V of this Final 

Judgment. If the Divestiture Trustee is 

responsible, it shall similarly notify 

defendants. The notice shall set forth 

the details of the proposed divestiture 

and list the name, address, and 

telephone number of each person not 

previously identified who offered or 

expressed an interest in or desire to 

acquire any ownership interest in the 

Divestiture Assets, together with full 

details of the same. 

B. Within 15 calendar days of receipt 

by plaintiffs of such notice, plaintiffs 

may request from defendants, the 

proposed Acquirer, any other third 

party, or the Divestiture Trustee if 

applicable additional information 

concerning the proposed divestiture, the 

proposed Acquirer, and any other 

potential Acquirer. Defendants and the 

Divestiture Trustee shall furnish any 

additional information requested within 

15 calendar days of the receipt of the 

request, unless the parties shall 

otherwise agree. 

C. Within 30 calendar days after 

receipt of the notice or within 20 

calendar days after plaintiffs have been 

provided the additional information 

requested from defendants, the 

proposed Acquirer, any third party, and 

the Divestiture Trustee, whichever is 

later, plaintiff United States upon 

consultation with plaintiff Minnesota, 

shall provide written notice to 

defendants and the Divestiture Trustee, 

if there is one, stating whether it objects 

to the proposed divestiture. If plaintiff 

United States provides written notice 

that it does not object, the divestiture 

may be consummated, subject only to 

defendants’ limited right to object to the 

sale under Section V.F of this Final 

Judgment. Absent written notice that 

plaintiff United States does not object to 

the proposed Acquirer or upon 

objection by plaintiff United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by defendants under 

Section V.F, a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any divestiture made 

pursuant to Section IV or V of this Final 

Judgment. 

VIII. Preservation of Assets 

Until the divestitures required by this 

Final Judgment have been 

accomplished, defendants shall take all 

steps necessary to comply with the 

Preservation of Assets Order entered by 

this Court and cease use of the 

Divestiture Assets during the period that 

the Divestiture Assets are managed by 

the Management Trustee, except to the 

extent use of such assets is permitted 

under Section XI. Defendants shall take 

no action that would jeopardize the 

divestitures ordered by this Court. 

IX. Affidavits 

A. Within 20 calendar days of the 

filing of the Complaint in this matter, 

and every 30 calendar days thereafter 

until the divestitures have been 

completed under Section IV or V of this 

Final Judgment, defendants shall deliver 

to plaintiffs an affidavit as to the fact 

and manner of its compliance with 

Section IV or V of this Final Judgment. 

Each such affidavit shall include the 

name, address, and telephone number of 

each person who during the preceding 

30 days, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring, any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person during 

that period. Each such affidavit shall 

also include a description of the efforts 

defendants have taken to solicit buyers 

for the Divestiture Assets, and to 

provide required information to 

prospective Acquirers, including the 

limitations, if any, on such information. 

Assuming the information set forth in 

the affidavit is true and complete, any 

objection by plaintiff United States 

upon consultation with plaintiff 

Minnesota, to information provided by 

defendants, including limitation on 

information, shall be made within 14 

calendar days of receipt of such 

affidavit. 

B. Within 20 calendar days of the 

filing of the Complaint in this matter, 

defendants shall deliver to plaintiffs an 

affidavit that describes in reasonable 

detail all actions defendants have taken 

and all steps defendants have 

implemented on an ongoing basis to 

comply with Section VIII of this Final 

Judgment. Defendants shall deliver to 

plaintiffs an affidavit describing any 

changes to the efforts and actions 

outlined in defendants’ earlier affidavits 

provided pursuant to this section within 

15 calendar days after the change is 

implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestitures have been 

completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 


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duly authorized representatives of the 

United States Department of Justice, 

including consultants and other persons 

retained by the United States, shall, 

upon written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable notice to defendants, be 

permitted: 

(1) Access during defendants’ office 

hours to inspect and copy, or at plaintiff 

United States’ option, to require 

defendants provide copies of, all books, 

ledgers, accounts, records and 

documents in the possession, custody, 

or control of defendants, relating to any 

matters contained in this Final 

Judgment; and 

(2) To interview, either informally or 

on the record, defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

defendants. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by plaintiff 

United States to any person other than 

an authorized representative of the 

executive branch of the United States or, 

pursuant to a customary protective 

order or waiver of confidentiality by 

defendants, the FCC, except in the 

course of legal proceedings to which the 

United States is a party (including grand 

jury proceedings), or for the purpose of 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

D. If at the time information or 

documents are furnished by defendants 

to plaintiff United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

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

Procedure, and defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

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

Civil Procedure,’’ then plaintiff United 

States shall give defendants 10 calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

Defendants may not reacquire or lease 

any part of the Divestiture Assets during 

the term of this Final Judgment 

provided however that defendants shall 

not be precluded from entering 

commercially reasonable agreements, 

for a period not to exceed two years 

from the date of the closing of the 

Transaction, with the Acquirer to obtain 

the right to use equipment that 

defendant ALLTEL used to support both 

its GSM roaming business and the 

provision of wireless services using 

other technological formats, and 

provided however that defendants may 

lease, for a period not to exceed 30 days, 

from the Management Trustee 

appointed by this Court pursuant to the 

Preservation of Assets Order, 2.5 MHz of 

spectrum in each RSA included in the 

Divestiture Assets. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire 10 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. 

Dated: lllllllllllllllll

lllllllllllllllllllll

United States District Judge 

Competitive Impact Statement 

Plaintiff United States of America 

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

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

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

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

Defendants entered into a Transaction 

Agreement dated November 17, 2005, 

pursuant to which ALLTEL Corporation 

(‘‘ALLTEL’’) will acquire Midwest 

Wireless Holdings L.L.C. (‘‘Midwest 

Wireless’’). Plaintiffs filed a civil 

antitrust Complaint on September 7, 

2006 seeking to enjoin the proposed 

acquisition. The Complaint alleges that 

the likely effect of this acquisition 

would be to lessen competition 

substantially for mobile wireless 

telecommunications services in four 

geographic areas in the state of 

Minnesota in violation of Section 7 of 

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

of competition would result in 

consumers facing higher prices and 

lower quality or quantity of mobile 

wireless telecommunications services. 

At the same time the Complaint was 

filed, the parties moved this Court to 

enter a Preservation of Assets Order and 

plaintiff United States lodged a 

proposed Final Judgment, which are 

designed to eliminate the 

anticompetitive effects of the 

acquisition. Under the proposed Final 

Judgment, which is explained more 

fully below, defendants are required to 

divest ALLTEL’s mobile wireless 

telecommunications services businesses 

and related assets in four markets 

(‘‘Divestiture Assets’’). Under the terms 

of the Preservation of Assets Order, 

defendants will take certain steps to 

ensure that: (a) These assets are 

preserved and that the Divestiture 

Assets are operated as competitively 

independent, economically viable and 

ongoing businesses; (b) they will remain 

independent and uninfluenced by 

defendants or the consummation of the 

transaction; and (c) competition is 

maintained during the pendency of the 

ordered divestiture. 

Plaintiffs and defendants have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. Defendants have also stipulated 

that they will comply with the terms of 

the Preservation of Assets Order and the 

proposed Final Judgment from the date 

of signing of the Preservation of Assets 

Stipulation, pending entry of the 

proposed Final Judgment by the Court 

and the required divestiture. Should the 

Court decline to enter the proposed 

Final Judgment, defendants have also 

committed to continue to abide by its 

requirements and those of the 

Preservation of Assets Order until the 

expiration of time for appeal. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Transaction 

ALLTEL, with headquarters in Little 

Rock, Arkansas, is a corporation 

organized and existing under the laws of 


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the state of Delaware. ALLTEL is the 

fifth largest provider of mobile wireless 

voice and data services in the United 

States by number of subscribers; it 

serves approximately 11 million 

customers. It provides mobile wireless 

telecommunications services in 233 

rural service areas and 116 metropolitan 

statistical areas located within 35 states 

and roaming services to other mobile 

wireless providers who use CDMA, 

TDMA and GSM technology in these 

areas. In 2005, ALLTEL earned wireless 

revenues of approximately $6.572 

billion. 

Midwest Wireless, with headquarters 

in Mankato, Minnesota, is a privately 

held Delaware limited liability 

company. Midwest Wireless provides 

wireless service in 14 rural service areas 

and one metropolitan statistical area 

located in Minnesota, Iowa and 

Wisconsin and has approximately 

440,000 customers. In 2004, Midwest 

Wireless earned approximately $264 

million in revenues. 

Pursuant to a Transaction Agreement 

dated November 17, 2005, ALLTEL will 

acquire Midwest Wireless for $1.075 

billion in cash. If this transaction is 

consummated, ALLTEL and Midwest 

Wireless combined would have 

approximately 11.5 million subscribers, 

with $7.8 billion in revenues and 

operations in 35 states. 

The proposed transaction, as initially 

agreed to by defendants, would lessen 

competition substantially for mobile 

wireless telecommunications services in 

four markets. This acquisition is the 

subject of the Complaint and proposed 

Final Judgment filed by plaintiffs. 

B. Mobile Wireless Telecommunications 

Services Industry 

Mobile wireless telecommunications 

services allow customers to make and 

receive telephone calls and use data 

services using radio transmissions 

without being confined to a small area 

during the call or data session, and 

without the need for unobstructed lineof-sight to the radio tower. This mobility 

is highly prized by customers, as 

demonstrated by the more than 180 

million people in the United States who 

own mobile wireless telephones. In 

2005, revenues for the sale of mobile 

wireless telecommunications services in 

the United States were over $113 

billion. To provide these services, 

mobile wireless telecommunications 

services providers must acquire 

adequate and appropriate spectrum, 

deploy an extensive network of 

switches, radio transmitters, and 

receivers, and interconnect this network 

with those of local and long-distance 

wireline telecommunications providers 

and other mobile wireless 

telecommunications services providers. 

The first wireless voice systems were 

based on analog technology, now 

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

technology. These analog systems were 

launched after the FCC issued the first 

licenses for mobile wireless telephone 

service: two cellular licenses (A-block 

and B-block) in each geographic area in 

the early to mid-1980s. The licenses are 

in the 800 MHz range of the radio 

spectrum, each license consists of 25 

MHz of spectrum, and they are issued 

for each Metropolitan Statistical Area 

(‘‘MSA’’) and Rural Service Area 

(‘‘RSA’’) (collectively, ‘‘Cellular 

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

total of 734 CMAs covering the entire 

United States. In 1982, one of the 

licenses was issued to the incumbent 

local exchange carrier in the market, 

and the other was issued by lottery to 

someone other than the incumbent. 

In 1995, the FCC allocated and 

subsequently issued licenses for 

additional spectrum for the provision of 

Personal Communications Services 

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

includes mobile wireless 

telecommunications services 

comparable to those offered by cellular 

licensees. These licenses are in the 1.9 

GHz range of the radio spectrum and are 

divided into six blocks: A, B, and C, 

which consist of 30 MHz each; and D, 

E, and F, which consist of 10 MHz each. 

Geographically, the A and B-block 30 

MHz licenses are issued by Major 

Trading Areas (‘‘MTAs’’), and C, D, E, 

and F-block licenses are issued by Basic 

Trading Areas (‘‘BTAs’’), several of 

which comprise each MTA. MTAs and 

BTAs do not generally correspond to 

MSAs and RSAs. With the introduction 

of the PCS licenses, both cellular and 

PCS licensees began offering digital 

services, thereby increasing capacity, 

shrinking handsets, and extending 

battery life. In 1996, one provider, a 

specialized mobile radio (‘‘SMR’’ or 

‘‘dispatch’’) spectrum licensee, began to 

use its SMR spectrum to offer mobile 

wireless telecommunications services 

comparable to those offered by other 

mobile wireless telecommunications 

services providers, in conjunction with 

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

Today, more than 99% of the U.S. 

population lives in counties where 

mobile wireless telecommunications 

services operators offer digital service, 

and nearly all mobile wireless voice 

service has migrated to secondgeneration or ‘‘2G’’ digital technologies: 

TDMA (time division multiple access), 

GSM (global standard for mobile, a type 

of TDMA standard used by all carriers 

in Europe), and CDMA (code division 

multiple access). Mobile wireless 

telecommunications services providers 

have chosen to build their networks on 

these incompatible technologies and 

most have chosen CDMA or GSM, with 

TDMA having been orphaned by 

equipment vendors. (The SMR 

providers use a fourth incompatible 

technological standard better suited to 

the spectrum they own, and, as SMR 

licensees, they have no obligation to 

support a specific technology standard.) 

Even more advanced technologies 

(‘‘3G’’) have begun to be deployed for 

voice and data. In all of the geographic 

areas alleged in the complaint, ALLTEL 

and Midwest Wireless own the 25 MHz 

cellular licenses and each own some 

additional PCS licenses. Cellular 

spectrum, because of its propagation 

characteristics, is more efficient to use 

in serving rural areas. 

C. The Competitive Effects of the 

Transaction on Mobile Wireless 

Telecommunications Services 

ALLTEL’s proposed acquisition of 

Midwest Wireless will substantially 

lessen competition in mobile wireless 

telecommunications services in four 

relevant geographic areas. Mobile 

wireless telecommunications services 

include both voice and data services 

provided over a radio network and 

allow customers to maintain their 

telephone calls or data sessions without 

wires, such as when traveling. Fixed 

wireless services and other wireless 

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

Wi-Fi) do not offer a viable alternative 

to mobile wireless telecommunications 

services primarily because customers 

using these services cannot maintain a 

call or data session while moving from 

one location to another. 

Most customers use mobile wireless 

telecommunications services in close 

proximity to their workplaces and 

homes. Thus, customers purchasing 

mobile wireless telecommunications 

services choose among mobile wireless 

telecommunications services providers 

that offer services where they are 

located and travel on a regular basis: 

home, work, other areas they commonly 

visit, and areas in between. The number 

and identity of mobile wireless 

telecommunications services providers 

varies from geographic area to 

geographic area, along with the quality 

of their services and the breadth of their 

geographic coverage, all of which are 

significant factors in customers’

purchasing decisions. Mobile wireless 

telecommunications services providers 

can and do offer different promotions, 

discounts, calling plans, and equipment 

subsidies in different geographic areas, 


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effectively varying the actual price for 

customers by geographic area. 

The relevant geographic markets for 

mobile wireless telecommunications 

services are, therefore, local in nature. 

The FCC has licensed a limited number 

of mobile wireless telecommunications 

services providers in these and other 

geographic areas based upon the 

availability of radio spectrum. These 

FCC spectrum licensing areas often 

represent the core of the business and 

social sphere where customers face the 

same competitive choices for mobile 

wireless telecommunications services. 

Although not all FCC spectrum 

licensing areas are relevant geographic 

areas for the purpose of analyzing the 

antitrust impact of this transaction, the 

FCC spectrum licensing areas that 

encompass the four geographic areas of 

concern in this transaction are where 

consumers in these communities 

principally use their mobile wireless 

telecommunications services. As 

described in the Complaint, the relevant 

geographic markets where the 

transaction will substantially lessen 

competition for mobile wireless 

telecommunications services are 

represented by the following FCC 

spectrum licensing areas which are all 

RSAs in southern Minnesota: Minnesota 

RSA–7 (CMA 488), Minnesota RSA–8 

(CMA 489), Minnesota RSA–9 (CMA 

490), and Minnesota RSA–10 (CMA 

491). These four RSAs include the 

counties of Blue Earth, Brown, 

Chippewa, Cottonwood, Fairbault, 

Freeborn, Jackson, Kandiyohi, Lac qui 

Parle, Le Sueuer, Lincoln, Lyon, Martin, 

McLeod, Meeker, Murray, Nicollet, 

Nobles, Pipestone, Redwood, Renville, 

Rice, Rock, Sibley, Steele, Waseca, 

Watowan and Yellow Medicine. 

The four geographic markets of 

concern for mobile wireless 

telecommunications services were 

identified by a fact-specific, market-bymarket analysis that included 

consideration of, but was not limited to, 

the following factors: The number of 

mobile wireless telecommunications 

services providers and their competitive 

strengths and weaknesses; ALLTEL’s 

and Midwest Wireless’s market shares 

along with those of the other providers; 

whether additional spectrum is or is 

likely soon to be available; whether any 

providers are limited by insufficient 

spectrum or other factors in their ability 

to add new customers; the concentration 

of the market, and the breadth and 

depth of coverage by different providers 

in each market; and the likelihood that 

any provider would expand its existing 

coverage. 

ALLTEL and Midwest Wireless both 

own businesses that offer mobile 

wireless telecommunications services in 

the four relevant geographic areas. The 

companies’ combined market shares for 

mobile wireless telecommunications 

services in the relevant markets as 

measured in terms of subscribers range 

from over 60% to nearly 95%. In each 

relevant geographic market, Midwest 

Wireless has the largest market share, 

and, in all but one RSA, ALLTEL is the 

second-largest mobile wireless 

telecommunications services provider. 

In all of the relevant geographic 

markets, ALLTEL and Midwest Wireless 

own the only 800 MHz band cellular 

spectrum licenses which are more 

efficient in serving rural areas than 1900 

MHz band PCS spectrum. As a result of 

holding the cellular spectrum licenses 

and being early entrants into these 

markets, ALLTEL’s and Midwest 

Wireless’s networks provide greater 

depth and breadth of coverage than their 

competitors, which are operating on 

PCS spectrum in the relevant geographic 

markets, and thus are more attractive to 

consumers. 

In addition, mobile wireless 

telecommunications services providers 

with partial coverage in a geographic 

area do not aggressively market their 

services in this location because 

potential customers would use their 

wireless telephones primarily in places 

where these providers have no network. 

In theory, these less built-out providers 

could service residents of these rural 

areas through roaming agreements but, 

as a practical matter, when service is 

provided on another carrier’s network, 

the providers would have to pay 

roaming charges to, and rely on, that 

carrier to maintain the quality of the 

network. Because of these constraints, 

the other providers who own partially 

built-out networks in the four 

geographic areas are reluctant to market 

their services to rural residents of these 

areas. Therefore, ALLTEL and Midwest 

Wireless are likely closer substitutes for 

each other than the other mobile 

wireless telecommunications services 

providers in the relevant geographic 

markets. Additionally, postmerger in 

these markets, there will be insufficient 

remaining competitors, with the type of 

coverage desired by customers, and the 

ability to compete effectively to defeat a 

small, but significant price increase by 

the merged firm. 

The relevant geographic markets for 

mobile wireless telecommunications 

services are highly concentrated. As 

measured by the Herfindahl-Hirschman 

Index (‘‘HHI’’), which is commonly 

employed in merger analysis and is 

defined and explained in Appendix A to 

the Complaint, concentration in these 

markets ranges from over 3600 to more 

than 5600, which is well above the 1800 

threshold at which the Department 

considers a market to be highly 

concentrated. After ALLTEL’s proposed 

acquisition of Midwest Wireless is 

consummated, the HHIs in the relevant 

geographic markets will range from over 

4700 to over 9100, with increases in the 

HHI as a result of the merger ranging 

from over 1000 to over 4100. 

Competition between ALLTEL and 

Midwest Wireless in the relevant 

geographic markets has resulted in 

lower prices and higher quality in 

mobile wireless telecommunications 

services than would otherwise have 

existed in these geographic markets. If 

ALLTEL’s proposed acquisition of 

Midwest Wireless is consummated, the 

competition between ALLTEL and 

Midwest Wireless in mobile wireless 

telecommunications services will be 

eliminated in these markets and the 

relevant geographic markets for mobile 

wireless telecommunications services 

will become substantially more 

concentrated. As a result, the loss of 

competition between ALLTEL and 

Midwest Wireless increases the 

likelihood of unilateral actions by the 

merged firm in the relevant geographic 

markets to increase prices, diminish the 

quality or quantity of services provided, 

and refrain from or delay making 

investments in network improvements. 

Entry by a new mobile wireless 

telecommunications services provider 

in the relevant geographic markets 

would be difficult, time-consuming, and 

expensive, requiring the acquisition of 

spectrum licenses and the build-out of 

a network. Expansion by providers who 

hold spectrum in these areas and are 

only partially built-out is also unlikely 

as the relevant geographic markets are 

rural service areas where the combined 

firm would own all of the available 800 

MHz spectrum. Due to propagation 

characteristics of 800 MHz cellular 

spectrum and 1900 MHz PCS spectrum, 

the 800 MHz signals can cover a 

substantially broader area than the 1900 

MHz signals. The estimated coverage 

advantage of the 800 MHz spectrum in 

rural areas ranges from two to as much 

as five times greater than PCS. In rural 

markets, this difference results in higher 

build-out costs for PCS networks than 

for cellular networks. The high costs of 

constructing PCS networks in rural 

markets combined with the relatively 

low population density makes it less 

likely that carriers that own PCS 

spectrum would build out in the 

relevant geographic markets. Therefore, 

new entry in response to a small but 

significant price increase for mobile 

wireless telecommunications services 

by the merged firm in the relevant 


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geographic markets would not be 

timely, likely, or sufficient to thwart the 

competitive harm that would result 

from ALLTEL’s proposed acquisition of 

Midwest Wireless. 

For these reasons, plaintiffs 

concluded that ALLTEL’s proposed 

acquisition of Midwest Wireless will 

likely substantially lessen competition, 

in violation of Section 7 of the Clayton 

Act, in the provision of mobile wireless 

telecommunications services in the 

relevant geographic markets. 

III. Explanation of the Proposed Final 

Judgment 

The divestiture requirements of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in mobile wireless 

telecommunications services in the four 

geographic markets of concern. The 

proposed Final Judgment requires 

defendants, within 120 days after the 

filing of the Complaint, or 5 days after 

notice of the entry of the Final Judgment 

by the Court, whichever is later, to 

divest the Divestiture Assets. The 

Divestiture Assets are essentially 

ALLTEL’s entire mobile wireless 

telecommunications services business 

and 800 MHz cellular spectrum in the 

four markets where ALLTEL and 

Midwest Wireless are each other’s 

closest competitors for mobile wireless 

telecommunications services. These 

assets must be divested in such a way 

as to satisfy plaintiff United States in its 

sole discretion upon consultation with 

plaintiff Minnesota, that they will be 

operated by the purchaser as a viable, 

ongoing business that can compete 

effectively in the relevant market. 

Defendants must take all reasonable 

steps necessary to accomplish the 

divestitures quickly and shall cooperate 

with prospective purchasers. 

The merged firm may retain 

ALLTEL’s PCS wireless spectrum in the 

four geographic areas and ALLTEL’s 

GSM roaming business, including GSM 

roaming contracts and equipment. 

ALLTEL’s PCS spectrum is used 

primarily to provide roaming services to 

other providers who use GSM 

technology. Midwest Wireless does not 

currently provide GSM roaming and 

therefore the proposed acquisition will 

not lessen competition in providing 

these services. In requiring divestitures, 

plaintiffs seek to make certain that the 

potential buyer acquires all the assets it 

may need to be a viable competitor and 

replace the competition lost by the 

merger. The 25 MHz of cellular 

spectrum that must be divested will 

support the operation and expansion of 

the mobile wireless telecommunications 

services businesses being divested, 

allowing the buyer to be a viable 

competitor to the merged entity. 

The proposed Final Judgment requires 

that the Divestiture Assets be divested 

to a single acquirer who, as a result, will 

be able to supply service to customers 

that require mobile wireless 

telecommunications service throughout 

southern rural Minnesota in the same 

way that ALLTEL is currently able to 

provide that service. This provision 

resolves concerns about the loss of 

competition for customers that demand 

coverage over a combination of 

Minnesota FCC licensing areas, in 

addition to the concerns due to 

eliminating competition within each 

licensing area. 

A. Timing of Divestitures 

In antitrust cases involving mergers or 

joint ventures in which plaintiff United 

States seeks a divestiture remedy, it 

requires completion of the divestitures 

within the shortest time period 

reasonable under the circumstances. In 

this case, Section IV.A of the proposed 

Final Judgment requires the divestiture 

of the Divestiture Assets, within 120 

days after the filing of the Complaint, or 

5 days after notice of the entry of the 

Final Judgment by the Court, whichever 

is later. Plaintiff United States in its sole 

discretion upon consultation with 

plaintiff Minnesota may extend the date 

for divestiture of the Divestiture Assets 

by up to 60 days. Because the FCC’s 

approval is required for the transfer of 

the wireless licenses to a purchaser, 

Section IV.A provides that if 

applications for transfer of a wireless 

license have been filed with the FCC, 

but the FCC has not acted dispositively 

before the end of the required 

divestiture period, the period for 

divestiture of those assets shall be 

extended until 5 days after the FCC has 

acted. 

The divestiture timing provisions of 

the proposed Final Judgment will 

ensure that the divestitures are carried 

out in a timely manner, and at the same 

time will permit defendants an adequate 

opportunity to accomplish the 

divestitures through a fair and orderly 

process. Even if all Divestiture Assets 

have not been divested upon 

consummation of the transaction, there 

should be no adverse impact on 

competition given the limited duration 

of the period of common ownership and 

the detailed requirements of the 

Preservation of Assets Order. 

B. Use of a Management Trustee 

The Preservation of Assets Stipulation 

and the Preservation of Assets Order, 

submitted simultaneously with this 

Competitive Impact Statement, ensures 

that, prior to divestiture, the Divestiture 

Assets are maintained and remain an 

economically viable ongoing business 

concern. The Divestiture Assets will 

remain preserved, independent and 

uninfluenced by defendants, so that 

competition is maintained during the 

pendency of the ordered divestiture. 

The Preservation of Assets Order 

appoints a management trustee selected 

by plaintiff United States upon 

consultation with plaintiff Minnesota to 

oversee the Divestiture Assets in the 

relevant geographic markets. The 

appointment of a management trustee in 

this unique situation is required because 

the Divestiture Assets are not 

independent facilities that can be held 

separate and operated as standalone 

units by the merged firm. Rather, the 

Divestiture Assets are an integral part of 

a larger network, and to maintain their 

competitive viability and economic 

value, they should remain part of that 

network during the divestiture period. 

To insure that these assets are preserved 

and supported by defendants during 

this period, yet run independently, a 

management trustee is necessary to 

oversee the continuing relationship 

between defendants and these assets. 

The management trustee will have the 

power to operate the Divestiture Assets 

in the ordinary course of business, so 

that they will remain preserved, 

independent, and uninfluenced by 

defendants, and so that the Divestiture 

Assets remain an ongoing and 

economically viable competitor to 

defendants and to other mobile wireless 

telecommunications services providers. 

The management trustee will preserve 

the confidentiality of competitively 

sensitive marketing, pricing, and sales 

information; insure defendants’

compliance with the Preservation of 

Assets Order and the proposed Final 

Judgment; and maximize the value of 

the Divestiture Assets so as to permit 

expeditious divestiture in a manner 

consistent with the proposed Final 

Judgment. 

The Preservation of Assets Order 

provides that defendants will pay all 

costs and expenses of the management 

trustee, including the cost of 

consultants, accountants, attorneys, and 

other representatives and assistants 

hired by the management trustee as are 

reasonably necessary to carry out his or 

her duties and responsibilities. After his 

or her appointment becomes effective, 

the management trustee will file 

monthly reports with plaintiffs setting 

forth the efforts to accomplish the goals 

of the Preservation of Assets Order and 

the proposed Final Judgment and the 

extent to which defendants are fulfilling 

their responsibilities. Finally, the 


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management trustee may become the 

divestiture trustee, pursuant to the 

provisions of Section V of the proposed 

Final Judgment. 

C. Use of a Divestiture Trustee 

In the event that defendants do not 

accomplish the divestiture within the 

periods prescribed in the proposed 

Final Judgment, the Final Judgment 

provides that the Court will appoint a 

trustee selected by plaintiff United 

States upon consultation with plaintiff 

Minnesota to effect the divestitures. As 

part of this divestiture, defendants must 

relinquish any direct or indirect 

financial ownership interests and any 

direct or indirect role in management or 

participation in control. Pursuant to 

Section V of the proposed Final 

Judgment, the divestiture trustee will 

own and control the Divestiture Assets 

until they are sold to a final purchaser, 

subject to safeguards to prevent 

defendants from influencing their 

operation. 

Section V details the requirements for 

the establishment of the divestiture 

trust, the selection and compensation of 

the divestiture trustee, the 

responsibilities of the divestiture trustee 

in connection with the divestiture and 

operation of the Divestiture Assets, and 

the termination of the divestiture trust. 

The divestiture trustee will have the 

obligation and the sole responsibility, 

under Section V.D, for the divestiture of 

any transferred Divestiture Assets. The 

divestiture trustee has the authority to 

accomplish divestitures at the earliest 

possible time and ‘‘at such price and on 

such terms as are then obtainable upon 

reasonable effort by the Divestiture 

Trustee.’’ In addition, to insure that the 

divestiture trustee can promptly locate 

and divest to an acceptable purchaser, 

plaintiff United States, in its sole 

discretion upon consultation with 

plaintiff Minnesota, may require 

defendants to include additional assets, 

or allow defendants to substitute 

substantially similar assets, which 

substantially relate to the Divestiture 

Assets to be divested by the divestiture 

trustee. 

The divestiture trustee will not only 

have responsibility for sale of the 

Divestiture Assets, but will also be the 

authorized holder of the wireless 

licenses, with full responsibility for the 

operations, marketing, and sales of the 

wireless businesses to be divested, and 

will not be subject to any control or 

direction by defendants. Defendants 

will no longer have any role in the 

ownership, operation, or management of 

the Divestiture Assets following 

consummation of the transaction, as 

provided by Section V, other than the 

right to receive the proceeds of the sale, 

and certain obligations to provide 

support to the Divestiture Assets, and 

cooperate with the divestiture trustee in 

order to complete the divestiture, as 

indicated in Section V.L and in the 

Preservation of Assets Order. 

The proposed Final Judgment 

provides that defendants will pay all 

costs and expenses of the divestiture 

trustee. The divestiture trustee’s 

commission will be structured, under 

Section V.G of the proposed Final 

Judgment, so as to provide an incentive 

for the divestiture trustee based on the 

price obtained and the speed with 

which the divestitures are 

accomplished. After his or her 

appointment becomes effective, the 

divestiture trustee will file monthly 

reports with the Court and plaintiffs 

setting forth his or her efforts to 

accomplish the divestitures. Section V.J 

requires the divestiture trustee to divest 

the Divestiture Assets to an acceptable 

purchaser no later than six months after 

the assets are transferred to the 

divestiture trustee. At the end of six 

months, if all divestitures have not been 

accomplished, the trustee and plaintiff 

United States upon consultation with 

plaintiff Minnesota, will make 

recommendations to the Court, which 

shall enter such orders as appropriate in 

order to carry out the purpose of the 

trust, including extending the trust or 

term of the trustee’s appointment. 

The divestiture provisions of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

transaction in the provision of mobile 

wireless telecommunications services. 

The divestitures of the Divestiture 

Assets will preserve competition in 

mobile wireless telecommunications 

services by maintaining an independent 

and economically viable competitor in 

the relevant geographic markets. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

Plaintiffs and defendants have 

stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that plaintiff 

United States has not withdrawn its 

consent. The APPA conditions entry 

upon the Court’s determination that the 

proposed Final Judgment is in the 

public interest. 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

plaintiff United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within 60 days 

of the date of publication of this 

Competitive Impact Statement in the 

Federal Register. All comments 

received during this period will be 

considered by the Department of Justice, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to the Court’s entry of 

judgment. The comments and the 

response of plaintiff United States will 

be filed with the Court and published in 

the Federal Register. 

Written comments should be 

submitted to: Nancy M. Goodman, 

Chief, Telecommunications and Media 

Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

Plaintiff United States considered, as 

an alternative to the proposed Final 

Judgment, a full trial on the merits 

against defendants. Plaintiff United 

States could have continued the 

litigation and sought preliminary and 

permanent injunctions against 

ALLTEL’s acquisition of Midwest 

Wireless. Plaintiff United States is 

satisfied, however, that the divestiture 

of assets and other relief described in 

the proposed Final Judgment will 

preserve competition for the provision 

of mobile wireless telecommunications 

services in the relevant markets and, 

thus, would achieve all or substantially 

all of the relief the government would 


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55028 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Notices 

1 In 2004, Congress amended the APPA to ensure 

that courts take into account the above-quoted list 

of relevant factors when making a public interest 

determination. Compare 15 U.S.C. 16(e) (2004), 

with 15 U.S.C. 16 (e)(1) (2006) (substituting ‘‘shall’’

for ‘‘may’’ in directing relevant factors for courts to 

consider and amending list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms). On the 

points discussed herein, the 2004 amendments did 

not alter the substance of the Tunney Act, and the 

pre-2004 precedents cited below remain applicable. 

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’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’); see generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

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

have obtained through litigation, but 

without the time and expense of a trial. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a 60 day comment period, after which 

the Court shall determine whether entry 

of the proposed Final Judgment ‘‘is in 

the public interest.’’ 15 U.S.C. 16(e)(1). 

In making that determination, the Court 

shall consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration or relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

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

United States Court of Appeals for the 

District of Columbia Circuit has held, 

the APPA permits a court to consider, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

consent judgment is sufficiently clear, 

whether enforcement mechanisms are 

sufficient, and whether the consent 

judgment may positively harm third 

parties. See United States v. Microsoft 

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

1995). 

With respect to the adequacy of the 

relief secured by the decree, a court may 

not ‘‘engage in an unrestricted 

evaluation of what relief would best 

serve the public.’’ United States v. BNS, 

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

(citing United States v. Bechtel Corp., 

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

also Microsoft, 56 F.3d at 1460–62. 

Courts have held that 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2 In making 

its public interest determination, a 

district court must accord due respect to 

the government’s prediction as to the 

effect of proposed remedies, its 

perception of the market structure, and 

its views of the nature of the case. 

United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003). 

Court approval of a final judgment 

requires a standard more flexible and 

less strict than the standard required for 

a funding of liability. ‘‘[A] proposed 

decree must be approved even if it falls 

short of the remedy the court would 

impose on its own, as long as it falls 

within the range of acceptability or is 

‘within the reaches of public interest.’ ’’

United States v. AT&T Co., 552 F. Supp. 

131, 151 (D.D.C. 1982) (citations 

omitted) (quoting Gillette Co., 406 F. 

Supp. at 716), aff’d sub nom. Maryland 

v. United States, 460 U.S. 1001 (1983); 

see also United States v. Alcan 

Aluminum Ltd., 605 F. Supp. 619, 622 

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

decree even though the court would 

have imposed a greater remedy). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

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

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. 

In its 2004 amendments to the 

Tunney Act, Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction ‘‘[n]othing in this section 

shall be construed to require the court 

to conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. § 16(e)(2). This 

language codified the intent of the 

original 1974 statute, expressed by 

Senator Tunney in the legislative 

history: ‘‘The court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’

119 Cong. Rec. 24,598 (1973) (statement 

of Senator Tunney). Rather: 

Absent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances. 

United States v. Mid-Am. Dairymen, 

Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977). 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by plaintiff 

United States in formulating the 

proposed Final Judgment. 

Dated: September 7, 2006. 

Respectfully submitted, 

Rachel K. Paulose, 

United States Attorney. 

Perry F. Sekus (No. 0309412), 

Assistant United States Attorney, 600 United 

States Courthouse, 300 South Fourth Street, 

Minneapolis, MN 55415, (612) 664–5600, 

Facsimile: (612) 664–5788. 

Hillary B. Burchuk, 

Lawrence M. Frankel, 

Attorneys, Telecommunications & Media, 

Enforcement Section, Antitrust Division. 

U.S. Department of Justice, City Center 

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

Washington, DC 20530, (202) 514–5621, 

Facsimile: (202) 514–6381. 

[FR Doc. 06–7766 Filed 9–19–06; 8:45 am] 

BILLING CODE 4410–11–M 


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