Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices 29997

to the United States Parole Commission,

United States Department of Justice, 950

Pennsylvania Avenue, NW.,

Washington, DC 20530–0001.

RECORD ACCESS PROCEDURES:

Requests for access may be made by

appearing in person or by writing to the

appropriate office indicated in the

‘‘Notification Procedures’’ section,

above. The envelope and letter should

be clearly marked ‘‘Privacy Act

Request.’’ The request should include a

general description of the records

sought and must include the requester’s

full name, current address, and date and

place of birth. The request must be

signed and either notarized or submitted

under penalty of perjury. Some

information may be exempt from access

as described in the section entitled

‘‘Systems Exempted from Certain

Provisions of the Act.’’ An individual

who is the subject of a record in this

system may access those records that are

not exempt from disclosure. A

determination of whether a record may

be accessed will be made after a request

is received.

Although no specific form is required,

you may obtain forms for this purpose

from the FOIA/PA Mail Referral Unit,

Justice Management Division, United

States Department of Justice, 950

Pennsylvania Avenue, NW.,

Washington, DC 20530–0001, or on the

Department of Justice Web site at

www.usdoj.gov/04foia/att_d.htm.

CONTESTING RECORD PROCEDURES:

Individuals seeking to contest or

amend information maintained in the

system should direct their requests to

the appropriate office indicated in the

‘‘Notification Procedures’’ section,

above, stating clearly and concisely

what information is being contested, the

reasons for contesting it, and the

proposed amendment to the information

sought. Some information may be

exempt from contesting record

procedures as described in the section

entitled ‘‘Systems Exempted from

Certain Provisions of the Act.’’ An

individual who is the subject of a record

in this system may seek amendment of

those records that are not exempt. A

determination of whether a record is

exempt from amendment will be made

after a request is received.

RECORD SOURCE CATEGORIES:

Those individuals who submit initial

requests and administrative appeals

pursuant to the FOIA, the Privacy Act,

or the applicable executive order(s)

governing classified national security

information; the agency records

searched in the process of responding to

such requests and appeals; Department

of Justice personnel assigned to handle

such requests and appeals; other

agencies or entities that have referred to

the Department of Justice requests

concerning Department of Justice

records, or that have consulted with the

Department of Justice regarding the

handling of particular requests; and

submitters or subjects of records or

information that have provided

assistance to the Department of Justice

in making access or amendment

determinations.

SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS

OF THE ACT:

The Attorney General has exempted

this system from subsections (c)(3) and

(4), (d)(1), (2), (3), and (4); (e)(1), (2), (3),

(5), and (8); and (g) of the Privacy Act

pursuant to 5 U.S.C. 552a(j) and (k).

These exemptions apply only to the

extent that information in the system is

subject to exemption pursuant to 5

U.S.C. 552a(j) and (k).

Rules have been promulgated in

accordance with the requirements of 5

U.S.C. 553(b), (c), and (e), and have been

published in the Federal Register.

[FR Doc. 01–13861 Filed 6–1–01; 8:45 am]

BILLING CODE 4410–FB–M

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. The News Corporation

Limited, Fox Television Holdings, Inc.,

and Chris-Craft Industries, Inc.

Proposed Final Judgment and

Competitive Impact Statement

Notice is hereby given pursuant to the

Antitrust Procedures and Penalties Act,

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

proposed Final Judgment, Hold Separate

Stipulation and Order, and Competitive

Impact Statement were filed with the

U.S. District Court for the District of

Columbia in United States v. News

Corporation Limited, Fox Television

Holdings, Inc., and Chris-Craft

Industries, Inc., Civ. Action No.

1:01CV00771. On April 11, 2001, the

United States filed a Complaint, which

sought to enjoin The News Corporation

Limited (‘‘News Corp’’) and its

subsidiary, FOX Television Holdings,

Inc., from acquiring Chris-Craft

Industries (‘‘Chris-Craft’’). The

Complaint alleged that News Corp’s

acquisition of Chris-Craft would

substantially lessen competition in the

sale of broadcast television spot

advertising in violation of the Clayton

Act, as amended, 15 U.S.C. 18, in the

Salt Lake City, Utah market. The

proposed Final Judgment, also filed on

April 11, 2001, requires defendants to

divest KTVX–TV, a Salt Lake City, Utah

ABC affiliate, to preserve competition in

the sale of broadcast television spot

advertising time in the Salt Lake City

market. A Hold Separate Stipulation

and Order, entered by the Court on

April 16, 2001, requires defendants to

maintain, prior to divestiture, the

competitive independence and

economic viability of the assets subject

to divestiture under the proposed Final

Judgment. A Competitive Impact

Statement filed by the United States

describes the Complaint, proposed Final

Judgment, Hold Separate Stipulation

and Order, and the remedies available to

private litigants who may have been

injured by the alleged violations.

Copies of the Complaint, proposed

Final Judgment, Hold Separate

Stipulation and Order and Competitive

Impact Statement are available for

inspection at the U.S. Department of

Justice, Antitrust Division, 325 Seventh

Street, NW., Room 215, Washington, DC

20530 (telephone: 202–514–2481), and

at the Clerk’s Office of the United States

District Court for the District of

Columbia, Washington, DC. 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 J. Robert Kramer II, Chief,

Litigation II Section, Antitrust Division,

U.S. Department of Justice, 1401 H

Street, NW., Suite 3000, Washington,

DC 20530 (telephone: 202–307–0924).

Constance K. Robinson,

Director of Operations and Merger

Enforcement.

United States District Court for the

District of Columbia

[Civil Action No. 01 0771]

United States of America, Plaintiff, v.

The News Corporation Limited, Fox

Television Holdings, Inc., and ChrisCraft Industries, Inc., Defendants.

Filed: Apr. 17, 2001

Hold Separate Stipulation and Order

It is hereby stipulated and agreed by

and between the undersigned parties,

subject to approval and entry by the

Court, that:

I. Definitions

As used in this Hold Separate

Stipulation and Order:

A. ‘‘News Corp’’ means defendant The

News Corporation Limited, and

Australian corporation with its

29998 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices

headquarters in Sydney, New South

Wales, Australia, its successors and

assigns, and its subsidiaries, divisions,

groups, affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

B. ‘‘FOX’’ means defendant FOX

Television Holdings, Inc., a Delaware

corporation and a wholly owned

subsidiary of News Corp with

headquarters in Los Angeles, California,

its successors and assigns, and its

subsidiaries, divisions, groups,

affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

C. ‘‘Chris-Craft’’ means defendant

Chris-Craft Industries, Inc., a Delaware

corporation with its headquarters in

New York, New York, its successors and

assigns, and its subsidiaries, divisions,

groups, affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

D. ‘‘KTVX–TV’’ means the broadcast

television station located in the Salt

Lake City DMA owned by defendant

Chris-Craft through its subsidiary

United Television, Inc. operating at

Channel 4.

E. ‘‘Divestiture Assets’’ means all of

the assets, tangible or intangible, used in

the operation of KTVX–TV, including,

but not limited to, all real property

(owned or leased) used in the operation

of the station, all broadcast equipment,

office equipment, office furniture,

fixtures, materials, supplies, and other

tangible property used in the operation

of the station: all licenses, permits,

authorizations, and applications

therefor issued by the Federal

Communications Commission (‘‘FCC’’)

and other government agencies related

to that station; all contracts (including

programming contracts and rights),

agreements, network affiliation

agreements, leases and commitments

and understandings of defendant ChrisCraft relating to the operation of KTVX–

TV; all trademarks, service marks, trade

names, copyrights, patents, slogans,

programming materials, and

promotional materials relating to

KTVX–TV; all customer lists, contracts,

accounts, and credit records; and all

logs and other records maintained by

defendant Chris-Craft in connection

with KTVX–TV.

F. ‘‘KSTU–TV’’ means the broadcast

television station located in the Salt

Lake City DMA owned by defendant

News Corp through its subsidiary FOX

operating at Channel 13.

G. ‘‘DMA’’ means designated market

area as defined by A.C. Nielsen

Company based upon viewing patterns

and used by the Investing In Television

BIA Market Report 2000 (3rd edition).

DMAs are ranked according to the

number of households therein and are

used by broadcasters, advertisers and

advertising agencies to aid in evaluating

television audience size and

composition.

H. ‘‘Acquirer’’ means the entity to

whom defendants divest the Divestiture

Assets.

II. Objectives

The Final Judgment filed in this case

is meant to ensure defendants’ prompt

divestiture of the Divestiture Assets for

the purpose of maintaining a viable

competitor in the sale of television

advertising time in the Salt Lake City

DMA and to remedy the anticompetitive

effects that the United States alleges

would otherwise result from News

Corp’s proposed acquisition of ChrisCraft. This Hold Separate Stipulation

and Order ensures, prior to such

divestiture, that the Divestiture Assets

remain independent, economically

viable, and an ongoing business concern

that will remain independent and

uninfluenced by the consummation of

News Corp’s acquisition of Chris-Craft,

and that competition is maintained

during the pendency of the ordered

divestiture.

III. Jurisdiction and Venue

The Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto, and venue of

this action is proper in the United States

District Court for the District of

Columbia.

IV. Compliance With and Entry of Final

Judgment

A. The parties stipulate that a Final

Judgment in the form attached hereto as

Exhibit A may be filed with and entered

by the Court, upon the motion of any

party or upon the Court’s own motion,

at any time after compliance with the

requirements of the Antitrust

Procedures and Penalties Act (15 U.S.C.

16), and without further notice to any

party or other proceedings, provided

that the United States has not

withdrawn its consent, which it may do

at any time before the entry of the

proposed Final Judgment by serving

notice thereof on defendants and by

filing that notice with the Court.

B. Defendants shall abide by and

comply with the provisions of the

proposed Final Judgment, pending the

Judgment’s entry by the Court, or until

expiration of time for all appeals of any

Court ruling declining entry of the

proposed Final Judgment, and shall,

from the date of the signing of this

Stipulation by the parties, comply with

all the terms and provisions of the

proposed Final Judgment as though the

same were in full force and effect as an

order of the Court.

C. Defendants shall not consummate

the transaction sought to be enjoined by

the Complaint herein before the Court

has signed this Hold Separate

Stipulation and Order.

D. This Stipulation shall apply with

equal force and effect to any amended

proposed Final Judgment agreed upon

in writing by the parties and submitted

to the Court.

E. In the event (1) the United States

has withdrawn its consent, as provided

in Section IV(A) above, or (2) the

proposed Final Judgment is not entered

pursuant to this Stipulation, the time

has expired for all appeals of any Court

ruling declining entry of the proposed

Final Judgment, and the Court has not

otherwise ordered continued

compliance with the terms and

provisions of the proposed Final

Judgment, then the parties are released

from all further obligations under this

Stipulation, and the making of this

Stipulation shall be without prejudice to

any party in this or any other

proceeding.

F. Defendants represent that the

divestiture ordered in the prosed Final

Judgment can and will be made, and

that defendants will later raise no claim

of mistake, hardship or difficulty of

compliance as grounds for asking the

Court to modify any of the provisions

contained therein.

G. The parties recognize that there

could be a delay in obtaining approval

by or a ruling of a government agency

related to the divestitures required by

Section IV of the Final Judgment,

notwithstanding the good faith efforts of

the defendants and any prospective

Acquirer, as defined in the Final

Judgment. In this circumstance, plaintiff

will, in the exercise of its sole discretion

give special consideration to forbearing

from applying for the appointment of a

trustee pursuant to Section V(A) of the

Final Judgment, or from pursuing legal

remedies available to it as a result of

such delay, provided that; (1)

defendants have entered into one or

more definitive agreements to divest the

Divestiture Assets, as defined in the

Final Judgment, and such agreements

and the Acquirer have been approved by

the United States; (2) all papers

necessary to secure any governmental

approvals and/or rulings to effectuate

such divestitures (including but not

limited to the FCC, Securities and

Exchange Commission, and Internal

Revenue Service approvals or rulings)

have been filed with the appropriate

agency; (3) receipt of such approvals are

the only closing conditions that have

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices 29999

not been satisfied or waived; and (4)

defendants have demonstrated that

neither they nor the prospective

Acquirer is responsible for such delay.

V. Hold Separate Provisions

Until the divestiture required by the

Final Judgment has been accomplished:

A. Defendants shall preserve,

maintain, and continue to operate

KTVX–TV as a competitively

independent, ongoing economically

viable competitive business, with its

assets, management, decision-making

functions and operations separate,

distinct, and apart from KTSU–TV and

News Corp’s and FOX’s other

operations. Within twenty (20) calendar

days after the entry of this Hold

Separate Stipulation and Order,

defendants will inform the United

States of the steps defendants have

taken to comply with this Hold Separate

Stipulation and Order.

B. Defendants shall take all steps

necessary to ensure that (1) KTVX–TV

will be maintained and operated as an

independent, ongoing, economically

viable and active competitor to the other

television stations in the Salt Lake City

DMA; (2) management of KTVX–TV,

including the performance of decisionmaking functions regarding marketing

and pricing, will be kept separate and

apart from and not influenced by

defendant News Corp or FOX; and (3)

the books, records, competitively

sensitive sales, marketing and pricing

information, and decision-making

associated with KTVX–TV will be kept

separate and apart from that of KSTU–

TV and News Corp’s or FOX’s other

operations.

C. Defendants shall use all reasonable

efforts to maintain and increase sales of

advertising time by KTVX–TV and shall

maintain at 2000 or previously

approved levels for 2001, whichever are

higher, promotional, advertising, sales,

technical assistance, marketing and

merchandising support for KTVX–TV.

D. Defendants shall provide sufficient

working capital and lines and sources of

credit to continue to maintain the

Divestiture Assets as an economically

viable and competitive ongoing

business, consistent with the

requirements of Sections V(A) and V(B).

E. Defendants shall take all steps

necessary to ensure that the Divestiture

Assets are fully maintained in operable

condition and shall maintain and

adhere to normal repair and

maintenance schedules for the

Divestiture Assets.

F. Defendants shall not, except as part

of a divestiture approved by the United

States in accordance with the terms of

the Final Judgment, remove, sell, lease,

assign, transfer, license, pledge for

collateral, or otherwise dispose of any of

the Divestiture Assets.

G. Defendants shall maintain, in

accordance with sound accounting

principles, separate, accurate and

complete financial ledgers, books and

records that report on a periodic basis

(such as the last business day of every

month), consistent with past practices,

the assets, liabilities, expenses,

revenues, and income of the Divestiture

Assets.

H. Defendants shall take no action

that would jeopardize, delay, or impede

the sale of the Divestiture Assets.

I. Defendants’ employees with

primary responsibility for sales,

marketing and programming of KTVX–

TV shall not be transferred or reassigned

to any other station, except for transfer

bids initiated by employees pursuant to

each defendant’s regular, established job

posting policy. Defendants shall provide

the United States with ten (10) calendar

days’ notice of such transfer.

J. Prior to consummation of their

transaction, defendants shall appoint

Gregory Nathanson to oversee the

Divestiture Assets, and who will be

responsible for defendants’ compliance

with this section. Gregory Nathanson

shall have complete managerial

responsibility for the Divestiture Assets,

subject to the provisions of the Final

Judgment. In the event he is unable to

perform his duties, defendants shall

appoint, subject to the approval of the

United States, a replacement within ten

(10) working days. Should defendants

fail to appoint a replacement acceptable

to the United States within this time

period, the United States shall appoint

a replacement.

K. Defendants shall take no action

that would interfere with the ability of

any trustee appointed pursuant to the

Final Judgment to monitor and complete

the divestiture pursuant to the Final

Judgment to a purchaser acceptable to

the United States.

L. This Hold Separate Stipulation and

Order shall remain in effect until

consummation of the divestiture

required by the proposed Final

Judgment or until further order of the

Court.

Dated: April 11, 2001.

For Plaintiff, United States of America.

Carolyn L. Davis,

Esquire, PA Bar #36136, United States

Department of Justice, Antitrust Division,

Litigation II Section, 1401 H Street, NW,

Suite 3000, Washington, DC 20530, (202)

514–5815.

Respectfully submitted,

For Defendants, The News Corporation

Limited and Fox Television Holdings, Inc.

Lloyd Constantine,

Esquire, Constantine & Partners, 477

Madison Avenue, New York, NY 10022,

(212) 350–2702

For Defendants, Chris-Craft Industries.

Neal Stoll,

Esquire, Skadden, Arps, Slate, Meagher &

Flom LLP, Four Times Square, New York,

NY 10036, (212) 735–3000.

Order

It Is So Ordered by the Court, this 16th day

of April, 2001.

Coller Kolla-Kotelly,

United States District Judge.

United States District Court for the

District of Columbia

[Civil Action No. 01 0771]

United States of America, Plaintiff, v.

The News Corporation Limited, Fox

Television Holdings, Inc., and ChrisCraft Industries, Inc., Defendants.

Final Judgment

Whereas, plaintiff, United States of

America, filed its Complaint on April

11th, 2001, plaintiff and defendants,

The News Corporation Limited (‘‘News

Corp’’), Fox Television Holdings, Inc.

(‘‘FOX’’), and Chris-Craft Industries, Inc.

(‘‘Chris-Craft’’), 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 part regarding any

issue of fact or law.

And Whereas, defendants agree to be

bound by the provisions of this Final

Judgment pending its approval by the

Court;

And Whereas, the essence of this

Final Judgment is the prompt and

certain divestiture of certain rights or

assets by the defendants to assure that

competition is not substantially

lessened;

And Whereas, plaintiff requires

defendants to make certain divestitures

for the purpose of remedying the loss of

competition alleged in the Complaint;

And Whereas, defendants have

represented to the United States that the

divestitures required below can and will

be made and that defendants will later

raise no claim of hardship or difficulty

as grounds for asking the Court to

modify any of the divestiture provisions

contained below;

Now, Therefore, before any testimony

is taken, without trial or adjudication of

any issue of fact or law, and upon

consent of the parties, it is 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

30000 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices

claim upon which relief may be granted

against defendants under Section 7 of

the Clayton Act, as amended (15 U.S.C.

18).

II. Definitions

As used in this Final Judgment:

A. ‘‘News Corp’’ means defendant The

News Corporation Limited, an

Australian corporation with its

headquarters in Sydney, New South

Wales, Australia, its successors and

assigns, and its subsidiaries, divisions,

groups, affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

B. ‘‘FOX’’ means defendant FOX

Television Holdings, Inc., a Delaware

corporation and a wholly owned

subsidiary of News Corp with

headquarters in Los Angeles, California,

its successors and assigns, and its

subsidiaries, divisions, groups,

affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

C. ‘‘Chris-Craft’’ means defendant

Chris-Craft Industries, Inc., a Delaware

corporation with its headquarters in

New York, New York, its successors and

assigns, and its subsidiaries, divisions,

groups, affiliates, partnerships and joint

ventures, and their directors, officers,

managers, agents, and employees.

D. ‘‘KTVX–TV’’ means the broadcast

television station located in the Salt

Lake City DMA owned by defendant

Chris-Craft through its subsidiary

United Television, Inc. operating at

Channel 4.

E. ‘‘Divestiture Assets’’ means all of

the assets, tangible or intangible, used in

the operation of KTVX–TV, including,

but not limited to, all real property

(owned or leased) used in the operation

of the station, all broadcast equipment,

office equipment, office furniture,

fixtures, materials, supplies, and other

tangible property used in the operation

of the station; all licenses, permits,

authorizations, and applications

therefore issued by the Federal

Communications Commission (‘‘FCC’’)

and other government agencies related

to that station; all contracts (including

programming contracts and rights),

agreements, network affiliation

agreements, leases and commitments

and understandings of defendant ChrisCraft relating to the operation of KTVX–

TV; all trademarks, service marks, trade

names, copyrights, patents, slogans,

programming materials, and

promotional materials relating to

KTVX–TV; all customer lists, contracts,

accounts, and credit records; and all

logs and other records maintained by

defendant Chris-Craft in connection

with KTVX–TV.

F. ‘‘DMA’’ means designated market

area as defined by A.C. Nielsen

Company based upon viewing patterns

and used by the Investing In Television

BIA Market Report 2000 (3rd edition)

DMAs are ranked according to the

number of households therein and are

used by broadcasters, advertisers and

advertising agencies to aid in evaluating

television audience size and

composition.

G. ‘‘Acquirer’’ means the entity to

whom defendants divest the Divesture

Assets.

III. Applicability

A. This Final Judgment applies to

News Corp, FOX, and Chris-Craft, as

defined above, and all other persons in

active concert or participation with

either 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.

IV. Divestitures

A. Defendants are ordered and

directed to divest the Divestiture Assets

in a manner consistent with this Final

Judgment to an Acquirer acceptable to

the United States in its sole discretion,

before the later of (1) one hundred and

fifty (150) calendar days after the filing

of the Complaint in this matter or (2)

five (5) days after notice or the entry of

this Final Judgment by the Court. The

United States, in its sole discretion, may

agree to an extension of this time period

of up to two thirty (30) day time

periods, not to exceed sixty (60)

calendar days in total, and shall notify

the Court in such circumstances.

Defendants agree to use their best efforts

to divest the Divestiture Assets, and to

obtain all regulatory approvals

necessary for such divestitures, as

expeditiously as possible.

B. In accomplishing the divestiture

ordered by this Final Judgment,

defendants promptly shall make known,

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 the

United States at the same time that such

information is made available to any

other person.

C. Defendants shall provide the

Acquirer and the United States

information relating to the personnel

involved in the operation of the

Divestiture Assets to enable the

Acquirer to make offers of employment.

Defendants will not interfere with any

negotiations by the Acquirer to employ

any defendant employee whose primary

responsibility relates to the operation of

the Divestiture Assets.

D. Defendants shall permit

prospective Acquirers of the Divestiture

Assets to have reasonable access to

personnel and to make inspections of

the physical facilities of the television

station to be divested; access to any and

all environmental, zoning, and other

permit documents and information; and

access to any and all financial,

operational, or other documents and

information customarily provided as

part of a due diligence process.

E. Defendants shall warrant to the

Acquirer of the Divestiture Assets that

the assets will be operational on the

date of sale.

F. Defendants shall not take any

action that will impede in any way the

permitting, operation, or divestiture of

the Divestiture Assets.

G. Defendants shall warrant to the

Acquirer of the Divestiture Assets that

there are no material defects in the

environmental, zoning or other permits

pertaining to the operation of the assets,

and that following the sale of the

Divestiture Assets, defendants will not

undertake, directly or indirectly, any

challenges to the environmental, zoning

or other permits relating to the

operation of the Divestiture Assets.

H. Unless the United States otherwise

consents in writing, the divestiture

pursuant to Section IV, or by trustee

appointed pursuant to Section V, of this

Final Judgment, shall include the entire

Divestiture Assets, and shall be

accomplished in such a way as to satisfy

the United States, in its sole discretion,

that the Divestiture Assets can and will

be used by the Acquirer as part of a

viable, ongoing commercial television

broadcasting business. The divestiture

of such assets will remedy the

competitive harm alleged in the

Complaint. The divestiture, whether

pursuant to Section IV or V of this Final

Judgment,

(1) Shall be made to an Acquirer that, in

the United States’s sole judgment, has the

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices 30001

intent and capability (including the

necessary managerial, operational, and

financial capability) of competing effectively

in the commercial television broadcasting

business in the Salt Lake City DMA; and

(2) Shall be accomplished so as to satisfy

the United States, in its sole discretion, that

none of the terms of any agreement between

an Acquirer and defendants give defendants

the ability unreasonably to raise the

Acquirer’s costs, to lower the Acquirer’s

efficiency, or otherwise to interfere in the

ability of the Acquirer to compete effectively.

V. Appointment of Trustee

A. If defendants have not divested the

Divestiture Assets within the time

period specified in Section IV(A),

defendants shall notify the United

States of that fact in writing. Upon

application of the United States, the

Court shall appoint a trustee selected by

the United States and approved by the

Court to effect the divestiture of the

Divestiture Assets.

B. After the appointment of a trustee

become effective, only the trustee shall

have the right to sell the Divestiture

Assets. The trustee shall have the power

and authority to accomplish the

divestiture to an Acquirer acceptable to

the United States at such price and on

such terms as are then obtainable upon

reasonable effort by the trustee, subject

to the provisions of Sections IV, V and

VI of this Final Judgment, and shall

have such other powers as this Court

deems appropriate. Subject to Section

V(D) of this Final Judgment, the trustee

may hire at the cost and expense of

defendants any investment bankers,

attorneys, or other agents, who shall be

solely accountable to the trustee,

reasonably necessary in the trustee’s

judgment to assist in the divestiture.

C. Defendants shall not object to a sale

by the trustee on any ground other than

the trustee’s malfeasance. Any such

objections by defendants must be

conveyed in writing to the United States

and the trustee within ten (10) calendar

days after the trustee has provided the

notice required under Section VI.

D. The trustee shall serve at the cost

and expense of defendants, on such

terms and conditions as the United

States approves, and shall account for

all monies derived from the sale of the

assets sold by the trustee and all costs

and expenses so incurred. After

approval by the Court of the trustee’s

accounting, including fees for its

services and those of any professionals

and agents retained by the trustee, all

remaining money shall be paid to

defendants and the trust shall then be

terminated. The compensation of the

trustee and any professionals and agents

retained by the trustee shall be

reasonable in light of the value of the

Divestiture Assets and based on a fee

arrangement providing the trustee with

an incentive based on the price and

terms of the divestiture and the speed

with which it is accomplished, but

timeliness is paramount.

E. Defendants shall use their best

efforts to assist the trustee in

accomplishing the required divestiture.

The trustee and any consultants,

accountants, attorneys, and other

persons retained by the trustee shall

have full and complete access to the

personnel, books, records, and facilities

related to the business to be divested

and defendants shall develop financial

and other information relevant to such

business as the trustee may reasonably

request, subject to reasonable protection

for trade secret or other confidential

research, development, or commercial

information. Defendants shall take no

action to interfere with or to impede the

trustee’s accomplishment of the

divestiture.

F. After its appointment becomes

effective, the trustee shall file monthly

reports with the United States and the

Court, setting forth the trustee’s efforts

to accomplish the divestiture ordered

under this Final Judgment. To the extent

such reports contain information that

the trustee deems confidential, such

reports shall not be filed in the public

docket of the Court. Such reports shall

include the name, address, and

telephone number of each person who,

during the preceding month, made an

offer to acquire, expressed an interest in

acquiring, entered into negotiations to

acquire, or was contacted or made an

inquiry about acquiring, any interest in

the Divestiture Assets, and shall

describe in detail each contact with any

such person. The trustee shall maintain

full records of all efforts made to divest

the Divestiture Assets.

G. If the trustee has not accomplished

such divestiture within six (6) months

after its appointment, the trustee shall

promptly file with the court a report

setting forth: (1) the trustee’s efforts to

accomplish the required divestiture, (2)

the reasons, in the trustee’s judgment,

why the required divestiture has not

been accomplished, and (3) the trustee’s

recommendations. To the extent such

reports contain information that the

trustee deems confidential, such report

shall not be filed in the public docket

of the Court. The trustee at the same

time shall furnish such report to the

United States, 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 this Final

Judgment, which may, if necessary,

include extending the trust and the term

of the trustee’s appointment by a period

requested by the United States.

VI. Notice of Proposed Divestiture

A. Within two (2) business days

following execution of a definitive

divestiture agreement, defendants or the

trustee, whichever is then responsible

for effecting the divestiture required

herein, shall notify the United States of

any proposed divestiture required by

Section IV or V of this Final Judgment.

If the trustee is responsible, it shall

similarly notify defendants. The notice

shall set forth the details of the

proposed divestiture and list the name,

address, and telephone number of each

person not previously identified who

offered or expressed an interest in or

desire to acquire any ownership interest

in the Divestiture Assets, together with

full details of the same.

B. Within fifteen (15) calendar days of

receipt by the United States of such

notice, the United States may request

from defendants, the proposed Acquirer,

any other third party, or the trustee if

applicable additional information

concerning the proposed divestiture, the

proposed Acquirer and any other

potential Acquirer. Defendants and the

trustee shall furnish any additional

information requested within fifteen

(15) calendar days of the receipt of the

request, unless the parties shall

otherwise agree.

C. Within thirty (30) calendar days

after receipt of the notice or within

twenty (20) calendar days after the

United States has been provided the

additional information requested from

defendants, the proposed Acquirer, any

third party and the trustee, whichever is

later, the United States shall provide

written notice to defendants and the

trustee, if there is one, stating whether

or not it objects to the proposed

divestiture. If the United States provides

written notice that it does not object, the

divestiture may be consummated,

subject only to defendants’ limited right

to object to the sale under Section V(C)

of this final Judgment. Absent written

notice that the United States does not

object to the proposed Acquirer or upon

objection by the United States, a

divestiture proposed under Section IV

or V shall not be consummated. Upon

objection by defendants under Section

V(C), a divestiture proposed under

Section V shall not be consummated

unless approved by the Court.

VII. Financing

Defendants shall not finance all or

any part of any purchase made pursuant

to this Final Judgment.

30002 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices

VIII. Affidavits

A. Within twenty (20) calendar days

of the filing of the Complaint and every

thirty (30) calendar days thereafter until

the divestiture has been completed,

whether pursuant to Section IV or V of

this Final Judgment, defendants shall

deliver to the United States an affidavit

as to the fact and manner of their

compliance with Section IV or V of this

Final Judgment. Each such affidavit

shall include the name, address, and

telephone number of each person who,

during the preceding thirty (30) days,

made an offer to acquire, expressed an

interest in acquiring, entered into

negotiations to acquire, or was

contacted or made an inquiry about

acquiring, any interest in the Divestiture

Assets, and shall describe in detail each

contact with any person during that

period. Each such affidavit shall also

include a description of the efforts that

defendants have taken to solicit buyers

for the Divestiture Assets and to provide

required information to prospective

purchasers, including the limitations, if

any, on such information. Assuming the

information set forth in the affidavit is

true and complete, any objection by the

United States to information provided

by defendants, including limitations on

information, shall be made within

fourteen (14) days of receipt of such

affidavit.

B. Within twenty (20) calendar days

of the filing of the Complaint in this

manner, defendants shall deliver to the

United States an affidavit that describes

in reasonable detail all actions

defendants have taken and all steps

defendants have implemented on an

ongoing basis to comply with Section IV

of this Final Judgment. Defendants shall

deliver to the United States an affidavit

describing any changes to the efforts

and actions outlined in defendants’

earlier affidavits filed pursuant to this

section within fifteen (15) calendar days

after the change is implemented.

C. Defendants shall keep all records of

all efforts made to preserve and divest

the Divestiture Assets until one year

after such divestiture has been

completed.

IX. Compliance Inspection

A. For the purposes of determining or

securing compliance with this Final

Judgment, or of determining whether

the Final Judgment should be modified

or vacated, and subject to any legally

recognized privilege, from time to time

duly authorized representatives of the

United States Department of Justice,

including consultants and other persons

retained by the United States, shall,

upon the 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’s option,

to require defendants provide copies of, all

books, ledgers, accounts, records and

documents in the possession, custody, or

control of the defendants, who may have

counsel present, 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

interviewee’s reasonable convenience 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 such 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 the United

States to any person other than an

authorized representative of the

Executive Branch of the United States,

except in the course of legal proceedings

to which the United States is a party

(including grand jury proceedings), or

for the purpose of securing compliance

with this Final Judgment, or as

otherwise required by law.

D. If at the time information or

documents are furnished by defendants

to the United States, defendants

represent and identify in writing the

material in any such information or

documents to which a claim of

protection may be asserted under Rule

26(c)(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 the United States

shall give defendants ten (10) calendar

days’ notice prior to divulging such

material in any legal proceeding (other

than a grand jury proceeding).

X. No Reacquisition

During the term of this Final

Judgment, defendants may not reacquire

any part of the Divestiture Assets or

enter into any local marketing

agreement, joint sales agreement, or any

other cooperative selling arrangement

with respect to the Divestiture Assets.

XI. 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.

XII. Expiration of Final Judgment

Unless this Court grants an extension,

this Final Judgment shall expire ten

years from the date of its entry.

XIII. Public Interest Determination

Entry of this Final Judgment is in the

public interest.

Court Approval Subject to Procedures

of Antitrust Procedures and Penalties

Act, 15 U.S.C. 16.

United States District Court for the

District of Columbia

[Civil Action No. 1:01cv00771]

United States of America, Plaintiff, v.

The News Corporation Limited, Fox

Television Holdings, Inc., Chris-Craft

Industries, Inc., Defendants.

Judge: Colleen Kollar-Kotelly

Competitive Impact Statement

The United States, pursuant to

Section 2(b) of the Antitrust Procedures

and Penalties Act (‘‘APPA’’), 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

The United States filed a civil

antitrust Complaint on April 11, 2001,

alleging that the proposed acquisition of

Chris-Craft Industries, Inc. (‘‘ChrisCraft’’) by The News Corporation

Limited (‘‘News Corp’’) and Fox

Television Holding, Inc. (‘‘FOX’’) would

violate Section 7 of the Clayton Act, as

amended, 15 U.S.C. § 18. The Complaint

alleges that the acquisition will result in

News Corp’s KSTU–TV, a FOX affiliate,

and Chris-Craft’s KTVX–TV, an ABC

affiliate, being under New Corp’s

ownership and control. These two

stations together account for

approximately 40% of the broadcast

television spot advertising revenue in

the Salt Lake City market and currently

compete vigorously against one another

because local and national business

consumers find them close substitute

due to the demographic reach of the

stations.

As alleged in the Complaint, the

proposed transaction would likely lead

to higher prices for advertisers who

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices 30003

1A ‘‘DMA,’’ or designated marketing area is a

geographic unit defined by A.C. Nielsen Company,

a firm that surveys television viewers and furnishes

television stations, advertisers, and advertising

agencies in a particular area with data to aid in

evaluating audience size and composition. The Salt

Lake City DMA generally encompasses the state of

Utah.

purchase broadcast television spot

advertising in the Salt Lake City market.

Accordingly, the prayer for relief in the

Complaint seeks: (a) adjudication that

News Corp’s proposed acquisition of

Chris-Craft described in the Complaint

would violate Section 7 of the Clayton

Act; (b) preliminary and permanent

injunctive relief preventing the

consummation of the proposed

acquisition; (c) an award to the United

States of the costs of this action; and (d)

such other relief as is just and proper.

Shortly before the Complaint was

filed, the United States reached a

proposed settlement that would permit

News Corp and Chris-Craft to

consummate their acquisition provided

that they divest KTVX–TV, the

television station News Corp will

acquire from Chris-Craft in Salt Lake

City. The settlement consists of a

proposed Final Judgment and a Hold

Separate Stipulation and Order, which

were filed simultaneously with the

Complaint on April 11, 2001. The

United States and defendants have

stipulated that the proposed Final

Judgment may be entered after

compliance with the APPA. Entry of the

proposed Final Judgment would

terminate this action, except that the

Court would retain jurisdiction to

construe, modify, or enforce the

provisions of the proposed Final

Judgment, and a punish violations

thereof.

II. The Alleged Violation

A. The Defendants

News Corp is a foreign corporation

existing under the laws of Australia and

has its headquarters and principal place

of business in Sydney, New South

Wales, Australia. News Corp, through

its subsidiary, FOX, owns 23 television

stations in the United States. News Corp

also owns cable and satellite

distribution businesses and produces

films for the television and the motion

picture industries. FOX is a corporation

existing under the laws of Delaware

with its headquarters in Los Angeles,

California. Through its subsidiaries,

FOX owns and operates television

stations in the United States, including

KSTU–TV in Salt Lake City.

Chris-Craft is a corporation existing

under the laws of Delaware with its

headquarters in New York, New York.

Chris-Craft, through its subsidiaries,

BHC and United Television, owns and

operates 10 television stations in the

United States, including KTVX–TV in

Salt Lake City.

B. Description of the Events Giving Rise

to the Alleged Violation

On August 13, 2000, News Corp;

News Publishing Australia Ltd., a

subsidiary of News Corp; FOX; and

Chris-Craft, and its subsidiaries, BHC

and United Television, entered into a

$5.3 billion plan of merger under which

News Corp would acquire Chris-Craft,

BHC, and United Television. This

proposed acquisition, which would

lessen competition substantially in the

provision of broadcast television spot

advertising time in the Salt Lake City

market, precipitated the United State’s

antitrust suit.

C. Anticompetitive Consequences of the

Proposed Acquisition

1. The Sale of Broadcast Television

Spot Advertising Time in the Salt Lake

City DMA. The Complaint alleges that

the provision of spot advertising time on

broadcast television stations serving the

Salt Lake City DMA1 constitutes a

relevant product market under Section 7

of the Clayton Act. Broadcast television

spot advertising comprises the majority

of a broadcast television station’s

revenues and is sold either directly by

the station, or through its national

representative, or a localized, marketby-market basis. It is purchased by

advertisers who want to target potential

customers in specific geographic

markets and differs from network and

syndicated television advertising, both

of which are sold by the major

television networks and producers of

syndicated programs on a nationwide

basis and broadcast in every market

where the network or syndicated

program is aired.

Broadcast television spot advertising

possesses unique attributes that set it

apart from advertising using other types

of media. In particular, only television

combines sight, sound, and motion,

thereby creating a more memorable

advertisement. Moreover, of all media,

broadcast television spot advertising

reaches the largest percentage of all

potential customers in a particular target

market and is therefore especially

effective in introducing and establishing

the image of a product. For a significant

number of advertisers, broadcast

television spot advertising, because of

its unique attributes, is an advertising

medium for which there is no close

substitute. Such customers would not

switch to another advertising medium—

such as radio, cable, or newspaper—if

broadcast television spot advertising

prices increased by a small but

significant amount.

Even though some advertisers may

switch some of their advertising to other

media rather than absorb an increase in

the price of broadcast television spot

advertising, the existence of such

advertisers would not prevent stations

from profitably raising their prices a

small but significant amount. During

individualized negotiations between

advertisers and broadcast television

stations, advertisers provide stations

with information about their advertising

needs, including their target audience.

This enables television stations to

identify advertisers with strong

preferences for broadcast television

advertising. At a minimum, broadcast

television stations could profitably raise

prices to those advertisers who view

broadcast television as a necessary

advertising medium either as their sole

method of advertising or as a necessary

complement to other advertising media.

Thus, the complaint alleges that the

relevant product market in which to

assess the competitive effects of this

acquisition is the sale of broadcast

television spot advertising.

The complaint further alleges that the

Salt Lake City DMA constitutes a

relevant geographic market within the

meaning of Section 7 of the Clayton Act.

Signals from broadcast television

stations located in Salt Lake City reach

viewers throughout the Salt Lake City

DMA, but signals from broadcast

television stations located outside the

Salt Lake City DMA reach few viewers

within the Salt Lake City DMA.

Advertiser’s use broadcast television

stations within the Salt Lake City DMA

to reach the largest possible number of

viewers within the entire DMA. Some of

these advertisers are located in the Salt

Lake City DMA and need to reach

customers there while others are

regional or national businesses that

want to target consumers in the Salt

Lake City DMA. Advertising on

television stations outside the Salt Lake

City DMA therefore is not an alternative

for these advertisers because such

stations cannot be viewed by a

significant number of potential

customers within the DMA.

2. Harm to Competition in the Salt

Lake City DMA. The Complaint alleges

that News Corp’s acquisition of ChrisCraft will likely have the following

effects:

a. competition in the sale of broadcast

television spot advertising in the Salt

Lake City DMA would be a substantially

lessened;

30004 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices

b. actual and potential competition

between KSTU–TV and KTVX–TV in

the sale of broadcast television spot

advertising in the Salt Lake City DMA

would be eliminated; and

c. the prices for broadcast television

spot advertising in the Salt Lake City

DMA would likely increase.

Specifically, the proposed acquisition

would give News Corp ownership of

two of the top four broadcast stations in

the Salt Lake City DMA and would

increase its market share of broadcast

television spot advertising revenue from

approximately 21% to 40%. The

acquisition would also further

concentrate the already highly

concentrated Salt Lake City market by

increasing the Herfindahl-Hirschman

Index (‘‘HHI’’) (a measure of market

concentration explained in Appendix A

of the Complaint) by 785 points.

Furthermore, the Complaint alleges that

KSTU–TV and KTVX–TV compete

head-to-head against each other in the

sale of broadcast television spot

advertising, largely because the

demographic appeal of their

programming makes them close

substitutes for a significant number of

advertisers. Advertisers are able to ‘‘play

off’’ KSTU–TV and KTVX–TV against

each other and obtain competitive rates

for programs that target similar

demographics. After the acquisition, a

significant number of advertisers will be

unable to reach their desired audiences

with equivalent efficiency unless they

use News Corp’s stations. The

acquisition, therefore, would enable

News Corp unilaterally to raise prices.

3. Entry. The Complaint alleges that

entry is unlikely to be timely, likely, or

sufficient to restore the competition lost

through the acquisition. Other broadcast

television stations in the Salt Lake City

DMA would not change their

programming in response to a price

increase imposed by News Corp after

the acquisition. Programming schedules

are complex and carefully constructed

taking many factors into account, such

as audience flow, station identity, and

program popularity. As a result, a

television station is unlikely to risk

repositioning simply to capitalize on a

small but significant price increase by

News Corp after the acquisition.

Further, new entry into the Salt Lake

City DMA is unlikely inasmuch as the

Federal Communications Commission

(‘‘FCC’’) regulates entry through the

issuance of licenses, which are difficult

to obtain. Even if a new signal became

available, commercial success would

come over a period of many years at

best. Thus, entry into the Salt Lake City

DMA broadcast television spot

advertising market would not be timely,

likely, or sufficient to deter News Corp

from unilaterally raising prices.

III. Explanation of the Proposed Final

Judgment

A. Divestiture and Hold Separate

Provisions

The proposed Final Judgment will

preserve competition in the sale of

broadcast television spot advertising

time in the Salt Lake City DMA by

requiring the defendants to divest

KTVX–TV, the Salt Lake City television

station that News Corp will acquire as

a result of the acquisition. The sale of

KTVX–TV will eliminate completely the

overlap created in Salt Lake City by the

acquisition thereby completely restoring

the pre-merger market structure and

resolving any competitive concerns.

The divestiture requirements of the

proposed Final Judgment, as stated in

Section IV, direct defendants to divest

KTVX–TX within one hundred fifty

(150) days after filing of the Complaint

or five (5) days after notice of the entry

of the Final Judgment by the Court,

whichever is later. The divestiture must

be made to a buyer that in the United

States’ sole judgment has the intent and

capability of competing effectively in

the commercial television broadcast

business in the Salt Lake City market.

The United States, in the exercise of its

sole discretion, may extend this time for

two additional thirty (30) day periods.

Defendants must use their best efforts to

divest KTVX–TV as expeditiously as

possible and, until the ordered

divestiture takes place, the defendants

must cooperate with any prospective

purchasers.

Under the Hold Separate Stipulation

and Order, until the ordered divestiture

takes place, defendants shall preserve,

maintain, and continue to operate

KTVX–TX as a competitively

independent, ongoing economically

viable competitive business, with its

assets, management, decision-making

functions, and operations separate,

distinct, and apart from KSTU–TV’s and

News Corp’s other operations.

B. Trustee Provisions

In the event defendants fail to make

the required divestiture of KTVX–TV

within the time periods set forth in the

proposed Final Judgment, a trustee will

be appointed by the Court to effect the

divestiture. News Corp will pay all costs

and expenses of any trustee and of any

professionals and agents retained by the

trustee. After appointment, the trustee

will report monthly to the United States,

News Corp, and the Court on its efforts

to accomplish the required divestiture.

If the trustee has not accomplished the

divestiture within six (6) months of its

appointment, it shall inform the Court

of its efforts to accomplish the required

divestiture, the reasons the required

divestiture has not been accomplished,

and the trustee’s recommendations.

C. Ban on Reacquisition

The defendants may not reacquire or

enter into any local marketing

agreement, joint sales agreement, or any

other cooperative selling arrangement

with respect to KTVX–TV during the

term of the consent decree, which is for

10 years unless extended by the Court.

The reacquisition of KTVX–TV, as well

as arrangements whereby News Corp

would manage KTVX–TV or sell

advertising time in coordination with

(or on behalf of) KTVX–TV would

undermine, if not negate, the benefits of

the relief obtained in the Salt Lake City

DMA. Accordingly, this provision is

necessary to protect the integrity of the

relief.

The relief in the proposed Final

Judgment is intended to remedy the

likely anticompetitive effects of News

Corp’s proposed acquisition of ChrisCraft in the broadcast television spot

advertising market in the Salt Lake City

DMA. Nothing in the Final Judgment is

intended to limit the United States’

ability to investigate or to bring actions,

where appropriate, challenging other

past or future activities of defendants in

any other 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

The United States and the defendants

have stipulated that the proposed Final

Judgment may be entered by the Court

after compliance with the provisions of

the APPA, provided that the United

States has not withdrawn its consent.

The APPA conditions entry upon the

Court’s determination that the proposed

Final Judgment is in the public interest.

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices 30005

2 119 Cong. Rec. 24598 (1973); see also United

States v. Gillette Co., 406 F. Supp. 713, 715 (D.

Mass. 1975). A ‘‘public interest’’ determination can

be made properly on the basis of the Competitive

Impact Statement and Response to Comments filed

pursuant to the APPA. Although the APPA

authorizes the use of additional procedures, see 15

U.S.C. § 16(f), those procedures are discretionary. A

court need not invoke any of them unless it believes

that the comments have raised significant issues

and that further proceedings would aid the court in

resolving those issues. See H.R. Rep. 93–1463, at 8–

9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538.

3Bechtel, 648 F.2d at 666 (citations

omitted)(emphasis added); see BNS, 858 F2d at 463;

United States v. National Broad, Co., 449 F. Supp.

1127, 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp.

at 716; see also Microsoft, 56 F.3d at 1461 (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’ ’’

(citations omitted)).

4United States v. American Tel. and Tel. Co., 552

F. Supp. 131, 151 (D.D.C. 1982), aff’d sub nom.

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

(quoting Gillette Co., 406 F. Supp. at 716); see also

United States v. Alcan Aluminum, Ltd., 605 F.

Supp. 619, 622 (W.D. Ky. 1985).

The APPA provides a period of at

least sixty (60) days preceding the

effective date of the proposed Final

Judgment within which any person may

submit to the United States written

comments regarding the proposed Final

Judgment. Any person who wishes to

comment should do so within sixty (60)

days of the date of publication of this

Competitive Impact Statement in the

Federal Register. The United States will

evaluate and respond to the comments.

All comments will be given due

consideration by the United States

Department of Justice, which remains

free to withdraw its consent to the

proposed Final Judgment at any time

prior to its entry. The United States will

evaluate and respond to the comments.

The comments and the response of the

United States will be filed with the

Court and published in the Federal

Register.

Any such written comments should

be submitted to: J. Robert Kramer, II,

Chief, Litigation II Section, Antitrust

Division, United States Department of

Justice, 1401 H Street, NW., Suite 3000,

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, as

well as to punish violations of its

provisions.

VI. Alternatives to the Proposed Final

Judgment

The United States considered, as an

alternative to the proposed Final

Judgment, a full trial on the merits of its

Complaint against defendants. The

United States could have continued the

litigation and sought preliminary and

permanent injunctions against News

Corp’s acquisition of Chris-Craft. The

United States is satisfied, however, that

the divestiture of KTVX–TV and other

relief contained in the proposed Final

Judgment will preserve competition in

the sale of the broadcast television spot

advertising in the Salt Lake City DMA.

Thus, the United States is convinced

that the proposed Final Judgment, once

implemented by the Court, will prevent

News Corp’s acquisition of Chris-Craft

from having adverse competitive effects.

VII. Standard of Review Under the

APPA for Proposed Final Judgment

The APPA requires that the proposed

consent judgments in antitrust cases

brought by the United States be subject

to a sixty (60) day comment period, after

which the Court shall determine

whether entry of the proposed Final

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

making that determination, the Court

may consider—

(1) 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, and any other

considerations bearing upon the adequacy of

such judgment;

(2) The impact of entry of such judgment

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). As the United States

Court of Appeals for the District of

Columbia Circuit 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 decree is

sufficiently clear, whether enforcement

mechanisms are sufficient and whether

the device may positively harm third

parties. See United States v. Microsoft

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

1995).

In conducting this inquiry, ‘‘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.’’ 2 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-America Dairymen,

Inc., 1977–1 Trade Cas. ¶ 61,508, at

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

Accordingly, with respect to the

adequacy of the relief secured by the

decree, a court may not ‘‘engage in an

unrestricted evaluation of what relief

would best serve the public.’’ United

States v. BNS, Inc., 858 F.2d 456, 462

(9th Cir. 1988) (quoting United States v.

Bechtel Corp., 648 F.2d 660, 666 (9th

Cir.), cert. denied, 454 U.S. 1083

(1981)); see also Microsoft, 56 F.3d at

1458–62. Precedent requires that:

The 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.3

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetitive effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a Final

Judgment requires a standard more

flexible and less strict than the standard

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

proposed decree must be approved even

if it falls short of the remedy the court

would impose on its own, as long as it

falls within the range of acceptability or

is ‘within the reaches of public

interest.’ ’’ 4

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

might have, but did not pursue. Id.

30006 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Notices

VIII. Determinative Documents

There are no determinative materials

or documents within the meaning of the

APPA that were considered by the

United states in formulating the

proposed Final Judgment.

Dated: May 14, 2001.

Respectfully submitted,

Carolyn L. Davis,

Trial Attorney, Litigation II Section, Antitrust

Division, U.S. Department of Justice,

1401 H Street, N.W., Suite 3000,

Washington, D.C. 20530, (202) 514–5815.

Certificate of Service

I hereby certify under penalty of

perjury that copies of the

COMPETITIVE IMPACT STATEMENT

have been served upon The News

Corporation Limited; FOX Television

Holdings, Inc., and Chris-Craft

Industries, Inc., by placing copies of the

aforementioned documents in the U.S.

Mail, directed to each of the abovenamed parties at the addresses given

below, this 14th day of May 2001.

The News Corporation Limited and FOX

Television Holdings, Inc., c/o Lloyd

Constantine, Constantine & Partners,

477 Madison Avenue, New York, NY

10022.

Chris-Craft Industries, Inc., c/o Neal

Stoll, Skadden, Arps, Slate, Meagher

& Flom LLP, Four Times Square, New

York, NY 10036.

Carolyn L. Davis,

Senior Trial Attorney, United States

Department of Justice, Antitrust Division,

1401 H Street, N.W., Suite 3000,

Washington, D.C. 20530, (202) 514–5815.

[FR Doc. 01–13863 Filed 6–1–01; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—BizTech for Energy

(‘‘BizTech’’)

Notice is hereby given that, on April

17, 2001, pursuant to section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C. 4301

et seq. (‘‘the Act’’), BizTech for Energy

(‘‘BizTech’’) has filed written

notifications simultaneously with the

Attorney General and the Federal Trade

Commission disclosing changes in its

membership status. The notifications

were filed for the purpose of extending

the Act’s provisions limiting the

recovery of antitrust plaintiffs to actual

damages under specified circumstances.

Specifically, Nexen Petroleum USA,

Dallas, TX has been added as a party to

this venture. Also, Quillion Inc.,

Houston, TX; and enertia-software.com,

Midland, TX have been dropped as

parties to this venture.

No other changes have been made in

either the membership or planned

activity of the group research project.

Membership in this group research

project remains open, and BizTech

intends to file additional written

notification disclosing all changes in

membership.

On December 22, 2000, BizTech filed

its original notification pursuant to

section 6(a) of the Act. The Department

of Justice published a notice in the

Federal Register pursuant to section

6(b) of the Act on March 8, 2001 (66 FR

13968).

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 01–13858 Filed 6–1–01; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—Cable Television

Laboratories, Inc.

Notice is hereby given that, on April

6, 2001, pursuant to section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C. 4301

et seq. (‘‘the Act’’), Cable Television

Laboratories, Inc. (‘‘CableLabs’’) has

filed written notifications

simultaneously with the Attorney

General and the Federal Trade

Commission disclosing changes in its

membership status. The notifications

were filed for the purpose of extending

the Act’s provisions limiting the

recovery of antitrust plaintiffs to actual

damages under specified circumstances.

Specifically, General Communications,

Inc., Anchorage, AK; Cedar

Communications, Arlington, WA; CWA

Cable, Bracey, VA; FamilyView

Cablevision, Seneca, SC; and Classic

Communications Inc., Tyler, TX have

been added as parties to this venture.

No other changes have been made in

either the membership or planned

activity of the group research project.

Membership in this group research

project remains open, and CableLabs

intends to file additional written

notifications disclosing all changes in

membership.

On August 8, 1988, CableLabs filed its

original notification pursuant to section

6(a) of the Act. The Department of

Justice published a notice in the Federal

Register pursuant to section 6(b) of the

Act on September 7, 1988 (53 FR

34593).

The last notification was filed with

the Department on July 11, 2000. A

notice was published in the Federal

Register pursuant to section 6(b) of the

Act on September 26, 2000 (65 FR

57842).

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 01–13856 Filed 6–1–01; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—IMS Global Learning

Consortium, Inc.

Notice is hereby given that, on April

16, 2001, pursuant to section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C. 4301

et seq. (‘‘the Act’’), IMS Global Learning

Consortium, Inc. has filed written

notifications simultaneously with the

Attorney General and the Federal Trade

Commission disclosing changes in its

membership status. The notifications

were filed for the purpose of extending

the Act’s provisions limiting the

recovery of antitrust plaintiffs to actual

damages under specified circumstances.

Specifically, Prometheus, Washington,

DC; Campus Pipeline, Salt Lake City,

UT; and Digital Learning Interactive,

Medford, MA have been added as

parties to this venture. Also, George

Mason University, Fairfax, VA has been

dropped as a party to this venture.

No other changes have been made in

either the membership or planned

activity of the group research project.

Membership in this group research

project remains open, and IMS Global

Learning Consortium, Inc. intends to file

additional written notification

disclosing all changes in membership.

On April 7, 2000, IMS Global

Learning Consortium, Inc. filed its

original notification pursuant to section

6(a) of the Act. The Department of

Justice published a notice in the Federal

Register pursuant to section 6(b) of the

Act on September 13, 2000 (65 FR

55283).

The last notification was filed with

the Department on January 23, 2001. A

notice was published in the Federal