Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 55167 

This process is conducted in accordance 

with 5 CFR 1320.10. 

If you have comments especially on 

the estimated public burden or 

associated response time, suggestions, 

or need a copy of the proposed 

information collection instrument with 

instructions or additional information, 

please contact Anthony Purpura, United 

States Bomb Data Center, Federal 

Building, Suite 280, 650 Massachusetts 

Avenue, NW., Washington, DC 20226. 

Written comments and suggestions 

from the public and affected agencies 

concerning the proposed collection of 

information are encouraged. Your 

comments should address one or more 

of the following four points: 

—Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

—Evaluate the accuracy of the agencies 

estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

—Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

—Minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms 

of information technology, e.g., 

permitting electronic submission of 

responses. 

Overview of this information 

collection: 

(1) Type of Information Collection: 

Extension of a currently approved 

collection. 

(2) Title of the Form/Collection: 

Report of Theft or Loss of Explosives. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Justice sponsoring the 

collection: Form Number: ATF F 5400.5. 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. Other: None. Losses or theft of 

explosives must be reported by the state 

within 24 hours of the discovery of the 

loss or theft. This form contains the 

minimum information necessary for 

ATF to initiate criminal investigations. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: It is estimated that 150 

respondents will complete the form 

within 1 hour and 48 minutes. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: There are an estimated 270 

annual total burden hours associated 

with this collection. 

If additional information is required 

contact: Brenda E. Dyer, Department 

Clearance Officer, Policy and Planning 

Staff, Justice Management Division, 

Department of Justice, Patrick Henry 

Building, Suite 1600, 601 D Street, NW., 

Washington, DC 20530, or e-mail to 

brenda.e.dyer@usdoj.gov. 

Dated: September 13, 2005. 

Brenda E. Dyer, 

Department Clearance Officer, Department of 

Justice. 

[FR Doc. 05–18676 Filed 9–19–05; 8:45 am] 

BILLING CODE 4410–FY–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Proposed Final Judgment and 

Competitive Impact Statement 

United States v. Ecast, Inc. and NSM 

Music Group, Ltd. 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. section 16(b)–(h), that a 

Complaint, proposed Final Judgment, 

Stipulation, and Competitive Impact 

Statement have been filed with the 

United States District court for the 

District of Columbia in United States v. 

Ecast, Inc. and NSM Music Group, Ltd., 

Civil Case No. 05 CV 1754. The 

proposed Final Judgment is subject to 

approval by the Court after compliance 

with the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16(b)–(h), 

including expiration of the statutory 60- 

day public comment period. 

On September 2, 2005, the United 

States filed a Complaint alleging that 

Ecast, Inc. and NSM Music Group, Ltd. 

reached an agreement in February 2003 

not to compete in the market for digital 

jukebox platforms in the United States 

in violation of Section 1 of the Sherman 

Act. As a result of the agreement, NSM 

terminated its plans to release a new 

digital jukebox with its own platform in 

the United States. 

To restore competition, the proposed 

Final Judgment filed with the Complaint 

will terminate the defendants’ existing 

noncompete agreement, and forbid them 

from entering future noncompete 

agreements with other digital jukebox 

platform competitors. A Competitive 

Impact Statement, filed by the United 

States, describes the Complaint, the 

proposed Final Judgment, and the 

remedies available to private litigants. 

Copies of the Complaint, proposed Final 

Judgment, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice in 

Washington, DC in Room 215 North, 

325 Seventh Street, NW., 20530 

(telephone: 202/514–2692) and at the 

Office of the Clerk of the United States 

District Court for the District of 

Columbia, 333 Constitution Avenue, 

NW., Washington, DC 2001. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to John Read, Chief, 

Litigation III Section, Antitrust Division, 

U.S. Department of Justice, 325 7th 

Street, NW., Suite 300, Washington, DC 

20530 (Telephone (202) 616–5935). 

J. Robert Kramer, II 

Director of Operations, Antitrust Division. 

In the United States District Court for 

the District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 325 7th 

Street, N.W.; Suite 300, Washington, DC 

20530, Plaintiff, v. Ecast, Inc., 49 Geary 

Street, Mezzanine, San Francisco, CA 

94108, and NSM Music Group, LTD. 3 

Stadium Way, Elland Road, Leeds, West 

Yorkshire, United Kingdom, LS11 OEW, 

Defendants; Civil Case Number: 

1:05CV01754, Judge: Colleen KollarKotelly, Deck Type: Antitrust, Date 

Stamp: September 2, 2005. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings the 

civil antitrust action to obtain equitable 

relief against defendants Ecast, Inc. 

(‘‘Ecast’’) and NSM Music Group, Ltd. 

(‘‘NSM’’), alleging as follows: 

Nature of the Action 

1. This action challenges an 

agreement between Ecast and NSM to 

not compete in the U.S. market for 

digital jukebox platforms. 

2. A digital jukebox is an Internetconnected device installed in bars and 

restaurants that is capable of playing 

digital music files that are either stored 

on a hard drive inside the jukebox, or 

are downloaded from a remote server 

via the Internet. The jukebox consists of 

two primary components, a physical 

jukebox and a ‘‘platform,’’ which is the 

term the industry applies to the 

combination of the software that powers 

the jukebox and the licensed collection 

of music that the jukebox is capable of 

playing at the request of bar or 

restaurant patrons. 

3. At all time relevant to this 

complaint, defendant Ecast was one of 

55168 Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 

only two digital jukebox platform 

providers in the United States. Ecast 

does not manufacture physical 

jukeboxes and has instead elected to 

work with existing jukebox 

manufacturers. Ecast’s manufacturing 

partners produce digital jukeboxes 

incorporating Ecast’s platform and 

distribute the jukeboxes through their 

established distribution networks to 

‘‘operators,’’ which purchase the 

jukeboxes and install them in bars and 

restaurants. 

4. In 2002, Ecast was informed by its 

then manufacturing partner of the 

manufacturer’s plans to terminate its 

supply relationship with Ecast. Ecast 

turned to other jukebox manufacturers 

to avoid an interruption in the flow of 

digital jukeboxes powered by its 

platform into the digital jukebox 

marketplace. 

5. At that time, defendant NSM, a 

jukebox manufacturer, was developing 

its own distinctive digital jukebox 

platform, which it planned to 

incorporate into its physical jukeboxes 

and release in the United States in 

competition with Ecast. 

6. In the fall of 2002, Ecast initiated 

negotiations with defendant NSM 

regarding a possible manufacturing 

agreement. NSM expressed some 

interest in manufacturing digital 

jukeboxes incorporating Ecast’s 

platform, but Ecast and NSM disagreed 

on how Ecast should compensate NSM 

in such a relationship. During the 

negotiations, Ecast requested that NSM 

agree to abandon its plans to enter the 

U.S. market in return for an upfront 

payment. NSM accepted Ecast’s 

condition and entered an agreement 

with Ecast in February 2003. 

7. NSM’s agreement to manufacture 

only Ecast-powered digital jukeboxes 

caused it to abandon its plan to 

incorporate its own distinctive digital 

jukebox platform into its physical 

jukeboxes and enter the United States 

market. 

8. Defendants’ agreement constitutes 

an unreasonable agreement in restraint 

of trade in violation of Section 1 of the 

Sherman Act, 15 U.S.C. 1. 

9. The United States seeks an order to 

prohibit defendants from enforcing and 

adhering to any agreement restraining 

competition between them and to obtain 

other equitable relief necessary to 

restore competition, potential or actual, 

for the benefit of digital jukebox 

purchasers throughout the United 

States. 

Jurisdiction and Venue 

10. The Court has subject matter 

jurisdiction under section 4 of the 

Sherman Act, 15 U.S.C. 4, and under 28 

U.S.C. 1331 and 1337 to prevent and 

restrain the defendants from continuing 

to violate section 1 of the Sherman Act, 

15 U.S.C. 1. 

11. Venue is proper in this judicial 

district under section 12 of the Clayton 

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

1391(b)(1), (c) because defendants 

transact or have transacted business 

here. 

Defendants 

12. Defendant Ecast, Inc. is a privately 

held company organized and existing 

under the laws of the State of Delaware, 

with is principal place of business in 

San Francisco, California. 

13. Defendant NSM Musical Group, 

Ltd. is a company incorporated under 

the laws of the United Kingdom. Since 

2002, NSM has offered a digital jukebox 

powered by an NSM platform in the 

United Kingdom. NSM’s U.S. 

subsidiary, NSM Music, Inc., is based 

outside of Chicago, Illinois. 

Industry Background 

14. Digital jukeboxes emerged in the 

United States in 1997. Because of the 

advantages of digital jukeboxes both to 

consumers and to the ‘‘operators’’ that 

purchase the jukeboxes and install them 

(along with other coin-operated devices) 

in bars and restaurants, the pace of 

conversion from CD jukeboxes to digital 

jukeboxes is expected to increase 

rapidly. 

15. Digital jukeboxes provide 

consumers access to a dramatically 

broader selection of music than they 

have available to them through CD 

jukeboxes. Jukeboxes powered by 

Ecast’s platform, for example, allow 

consumers to choose from among 300 

albums stored on each jukebox’s hard 

drive. For an additional fee, consumers 

can download any of the additional 

150,000 songs that Ecast stores on its 

remote servers. Consumers can also pay 

an additional fee to have their song 

choice jump to the front of the song 

queue. These features are not only 

popular with consumer users of digital 

jukeboxes, they also increase the 

revenue opportunities available to their 

operator purchasers. 

16. After making a one-time payment 

to a jukebox distributor (the traditional 

intermediary between the manufacturer 

and the operator), operators then pay 

monthly fees to the platform provider to 

maintain access both to the music 

collection the platform provider 

licensed from U.S. copyright holders 

and to the proprietary software that 

allows the operator to remotely control 

the jukebox and the special features 

associated with it. 

17. At all times relevant to the 

complaint, Ecast had only one other 

digital jukebox platform competitor, 

with which it competed on the monthly 

fee collected from operators. Ecast and 

its competitor each charged a monthly 

fee based on a percentage of the 

revenues generated by the jukebox. 

Ecast also competed on the special 

features available through jukeboxes 

incorporating its platform. 

18. Under Ecast’s business model, it 

sought to collaborate closely with and 

take advantage of the manufacturing 

expertise and distribution networks 

maintained by traditional jukebox 

manufacturers. Ecast believed that by 

combining the traditional jukebox 

companies’ strengths with Ecast’s 

Internet technology capabilities and the 

music collection it licensed from U.S. 

copyright holders, they could provide 

high-quality, Ecast-powered jukeboxes 

to the U.S. market more quickly than if 

Ecast had proceeded on its own. 

19. Digital jukebox platforms provide 

to digital jukebox operators the software 

that powers digital jukeboxes and the 

music licensed from U.S. copyright 

holders that consumers can access 

through the jukebox. Because of the 

unique features and the enhanced 

revenue opportunities that digital 

jukeboxes offer to operators, if a 

hypothetical monopolist of digital 

jukebox platforms were to raise price by 

a small, but significant amount, digital 

jukebox manufacturers would not turn 

to other types of platforms (such as CD 

libraries). Neither would such a price 

increase cause operators of digital 

jukeboxes to switch to possible 

substitutes (such as CD jukeboxes). 

Additionally, if such a hypothetical 

digital jukebox platform monopolist 

raised its price, digital jukebox 

manufacturers that sold in the United 

States and operators that installed 

jukeboxes in the United States would 

not switch to platform providers that 

did not hold the necessary licenses to 

the U.S. copyrights associated with the 

music played by the jukebox. 

The Illegal Noncompete Agreement 

20. In the fall of 2002, defendant NSM 

was preparing to enter the U.S. digital 

jukebox market using its own platform 

in competition with Ecast and the other 

platform competitor. It had begun 

obtaining the U.S. copyright licenses 

necessary to provide a jukebox platform 

in the United States and had secured a 

line of credit to pay advances demanded 

by the copyright holders. NSM had also 

modified its U.K. jukebox and platform 

for release in the U.S. market, and it had 

completed a prototype of its planned 

Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 55169 

digital jukebox for demonstration at 

trade shows. 

21. NSM saw a significant market 

opportunity to distinguish itself from 

Ecast and the other platform competitor 

by offering a more operator-friendly 

business model for the digital jukebox 

platform than the incumbents’ revenuesharing model. NSM’s plan was to 

release a digital jukebox platform at a 

fixed monthly cost to operators. 

Operators had expressed interest in 

NSM’s platform and several of them 

delayed purchases of jukeboxes 

incorporating Ecast’s platform in 

anticipation of NSM’s launch. NSM’s 

commitment to a distinctive business 

model attractive to operators promised 

to generate competitive responses from 

the existing platform providers. 

22. At an industry trade show in 

September 2002, NSM displayed a 

prototype of a digital jukebox and 

platform that it intended to release in 

the U.S. market. Ecast, having learned of 

its manufacturing partner’s plans to 

terminate Ecast’s only manufacturing 

relationship, approached NSM at the 

September 2002 trade show and 

proposed that NSM produce digital 

jukeboxes that would be powered by 

Ecast’s platform. 

23. Given its efforts to introduce a 

NSM-powered digital jukebox, NSM 

demanded appropriate compensation 

from Ecast before it would agree to 

assist Ecast by producing Ecast-powered 

digital jukeboxes. During subsequent 

negotiations, Ecast agreed to make a 

significant upfront cash payment to 

NSM in return for NSM’s agreement to 

manufacture only East-powered digital 

jukeboxes and not compete against 

Ecast. 

24. After those negotiations, Ecast 

forwarded a letter of intent to NSM. The 

December 31, 2002, letter of intent 

contained a provision that stated: 

NSM agrees that it will abandon its 

attempts to acquire music licenses for the 

U.S. market (the ‘‘Territory’’) and advise all 

content providers and licensors with which 

NSM has entered licenses with [sic] that it 

has abandoned entering the US market with 

its own digital music platform. NSM also 

agrees that for as long as Ecast offers the 

Ecast Platform in the Territory NSM will not 

produce a competing product in the 

Territory. 

25. Ecast sought through the 

noncompete provision to prevent NSM 

from entering and disrupting the digital 

jukebox platform marketplace. NSM’s 

board thereafter approved the deal with 

Ecast that included the noncompete 

provision as quoted above. 

26. After agreeing with Ecast to 

manufacture Ecast-powered jukeboxes 

exclusively and not to proceed with its 

own entry into the U.S. platform market, 

NSM fired the two employees that had 

been responsible for its planned entry. 

Upon learning of NSM’s action, Ecast 

reneged on its deal with NSM and 

refused to make the upfront payment to 

NSM as previously promised. 

27. Ecast and NSM subsequently 

negotiated a second agreement that also 

contained a noncompete provision 

obligating NSM to produce only Ecastpowered digital jukeboxes. The second 

agreement also called for Ecast to make 

a smaller upfront payment to NSM and 

contained a license by NSM to Ecast of 

a patent relating to digital jukebox 

technology. 

28. NSM did not, and has not, entered 

the U.S. market with its own digital 

jukebox using its platform. Its presence 

in the United States is only as a 

manufacturer and distributor of CD 

jukeboxes and digital jukeboxes 

powered by Ecast’s platform. 

Cause of Action (Violation of Section 1 

of the Sherman Act) 

29. The United States hereby 

incorporates paragraphs 1 through 28. 

30. The anticompetitive effects of 

defendants’ noncompete agreement 

outweigh any procompetitive benefits 

offered by that agreement. 

31. The noncompete agreement 

prevented NSM from entering the 

market for digital jukebox platforms and 

denied to U.S. operators and jukebox 

users the benefits of competition among 

NSM and existing participants in the 

market. The noncompete agreement 

offered few, if any, procompetitive 

benefits to weigh against the harm to 

U.S. consumers. 

32. Defendants’ agreement 

unreasonably restrained competition in 

the digital jukebox platform market in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. 

Requested Relief 

The United States requests that: 

(A) The Court adjudge and decree that 

6the defendants’ agreement not to 

compete constitutes an illegal restraint 

of interstate trade and commerce in 

violation of Section 1 of the Sherman 

Act; 

(B) The defendants be permanently 

enjoined and restrained from enforcing 

or adhering to existing contractual 

provisions that restrict competition 

between them; 

(C) Each defendant be permanently 

enjoined and restrained from 

establishing any agreement restricting 

competition between it and another 

digital jukebox platform competitor; 

(D) The United states be awarded 

such other relief as the Court may deem 

just and proper to redress and prevent 

recurrence of the alleged violation and 

to dissipate the anticompetitive effects 

of Ecast’s and NSM’s illegal agreement; 

and 

(D) The United States be awarded the 

costs of this action. 

Dated: September 2, 2005. 

Thomas O. Barnett, 

Acting Assistant Attorney General. 

J. Robert Kramer II, 

Director of Operations. 

John R. Read, 

Chief. 

Nina Hale, 

Assistant Chief, Litigation III. 

David C. Kully (DC Bar #448763), 

Jill A. Beaird, 

Attorneys for the United States, United States 

Department of Justice, Antitrust Division, 325 

7th Street, NW; Suite 300, Washington, DC 

20530, Telephone: (202) 305–9969, 

Facsimile: (202) 307–9952. 

In the United States District Court for 

the District of Columbia 

United States of America, Plaintiff, v. 

Ecast, Inc. and NSM Music Group, Ltd., 

Defendants; Civil No.: 05 1754 

Proposed Final Judgment 

Whereas, the United States of 

America filed its Complaint on 

September 2, 2005, alleging that 

defendants Ecast, Inc. (‘‘Ecast’’) and 

NSM Music Group, Ltd. (‘‘NSM’’) 

entered into an agreement in violation 

of Section 1 of the Sherman Act, and 

plaintiff and defendants, by their 

respective attorneys, have consent 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 

any admission by, any party regarding 

any such issue of fact or law; 

And whereas, Ecast and NSM agree to 

be bound by the provisions of this Final 

Judgment pending its approval by this 

Court; 

And whereas, the essence of this Final 

Judgment is the prevention of future 

conduct by Ecast and NSM that impairs 

competition in the digital jukebox 

platform market; 

And whereas, the United States 

requires Ecast and NSM to agree to 

certain procedures and prohibitions for 

the purpose of preventing the loss of 

competition; 

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: 

55170 Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 

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 Ecast and NSM under Section 1 

of the Sherman Act, as amended, 15 

U.S.C. 1. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Digital Jukebox’’ means a 

commercial vending device that upon 

payment plays for public performance 

digital music files that are delivered 

electronically from a remote server and 

stored on any internal or connected data 

storage medium. 

B. ‘‘Digital Jukebox Platform 

competitor’’ means any natural person, 

corporate entity, partnership, 

association, or joint venture that has 

licensed (or that Ecast or NSM knows or 

has reason to believe has plans to 

license) a collection of digital music 

files from U.S. copyright holders for the 

purpose of supplying music content in 

the United States to a Digital Jukebox. 

C. ‘‘Ecast’’ means defendant Ecast, 

Inc., a privately held company 

organized and existing under the laws of 

the State of Delaware, with its principal 

place of business in San Francisco, 

California, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their officers, managers, 

agents, employees, and directors acting 

or claiming to act on its behalf. 

D. ‘‘NSM’’ means defendant NSM 

Music Group, Ltd., a company 

incorporated under the laws of the 

United Kingdom, its successor and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their officers, managers, 

agents, employees, and directors acting 

or claiming to act on its behalf. 

III. Applicability 

This Final Judgment applies to Ecast 

and NSM, 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. 

IV. Prohibited and Required Conduct 

1. Each defendant, its officers, 

directors, agents, and employees, acting 

or claiming to act on its behalf, and 

successors and all other persons acting 

or claiming to act on its behalf, are 

enjoined and restrained from directly or 

indirectly adhering to or enforcing 

section 4 (‘‘EXCLUSIVITY’’) of 

defendants’ September 2003 

‘‘Manufacturing License, Distribution 

License and Patent License Agreement,’’

or from in any manner, directly or 

indirectly, entering into, continuing, 

maintaining, or renewing any 

contractual provision that prohibits 

NSM from becoming or limits NSM’s 

ability to become a Digital Jukebox 

Platform Competitor. 

2. Each defendant, its officers, 

directors, agents, and employees, acting 

or claiming to act on its behalf, and 

successors and all other persons acting 

or claiming to act on its behalf, are 

enjoined and restrained from, in any 

manner, directly or indirectly, entering 

into, continuing, maintaining, or 

renewing any agreement with any 

Digital Jukebox Platform Competitor 

that prohibits such person from 

supplying or limits the ability of such 

person to supply music content in the 

United States to Digital Jukeboxes, 

provided however, that (a) any merger 

or acquisition involving either 

defendant; (b) any valid license of U.S. 

Patent No. 5,341,350 from either 

defendant to a nonparty; or (c) any valid 

license of U.S. patent No. 5,341,350 

from NSM to Ecast, which does not in 

any way prohibit NSM from becoming 

or limit NSM’s ability to become a 

Digital Jukebox Platform Competitor, 

will not be considered, by itself, a 

violation of this paragraph. 

V. Compliance Program 

1. Each defendant shall establish and 

maintain an antitrust compliance 

program which shall include 

designating, within thirty days of entry 

of this Final Judgment, an Antitrust 

Compliance Officer with responsibility 

for implementing the antitrust 

compliance program and achieving full 

compliance with this Final Judgment 

and the antitrust laws. The Antitrust 

Compliance Officer shall, on a 

continuing basis, be responsible for the 

following: 

a. Furnishing a copy of this Final 

Judgment within thirty days of entry of 

the Final Judgment to each defendant’s 

officers, directors, and employees; 

b. Furnishing within thirty days a 

copy of this Final Judgment to any 

person who succeeds to a position 

described in Section V.1.a; 

c. Arranging for an annual briefing to 

each person designated in Section V.1.a 

or b on the meaning and requirements 

of this Final Judgment and the antitrust 

laws; 

d. Obtaining from each person 

designated in Section V.1.a or b 

certification that he or she (1) has read 

and, to the best of his or her ability, 

understands and agrees to abide by the 

terms of this Final Judgment; (2) is not 

aware of any violation of the Final 

Judgment that has not been reported to 

the Antitrust Compliance Officer; and 

(3) understands that any person’s failure 

to comply with this Final Judgment may 

result in an enforcement action for civil 

or criminal contempt of court against 

each defendant and/or any person who 

violates this Final Judgment; 

e. Maintaining (1) a record of 

certifications received pursuant to this 

Section; (2) a file of all documents 

related to any alleged violation of this 

Final Judgment and the antitrust laws; 

and (3) a record of all communications 

related to any such violation, which 

shall identify the date and place of the 

communication, the persons involved, 

the subject matter of the 

communication, and the results of any 

related investigation; 

f. Reviewing the content of each email, letter, memorandum, or other 

communication to any Digital Jukebox 

Platform Competitor written by or on 

behalf of an officer or director of either 

defendant that relates to the recipient’s 

supply of music content in the United 

States to Digital Jukeboxes in order to 

ensure their adherence with this Final 

Judgment. 

2. If defendant’s Antitrust Compliance 

Officer learns of any violations of any of 

the terms and conditions contained in 

this Final Judgment, defendant shall 

immediately take appropriate action to 

terminate or modify the activity so as to 

comply with this Final Judgment. 

VI. Compliance Inspection 

1. 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 or designated thereby, shall, 

upon written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable written notice to defendants, 

be permitted: 

a. Access during defendants’ office 

hours to inspect and copy, or at the 

United States’ option, to require 

defendants to provide copies of, all 

books, ledgers, accounts, records, and 

documents in their possession, custody, 

or control relating to any matters 

contained in this Final Judgment; and 

b. To interview, either informally or 

on the record, defendant’s officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 55171 

1Operators then negotiate with bars and 

restaurants for space in their establishments in 

which to place the digital jukeboxes. 

convenience of the interviewee and 

without restraint or interference by 

defendants. 

2. 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. 

3. No information or documents 

obtained by the means provided in this 

section shall be divulged by plaintiffs 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. 

4. If at the time defendants furnish 

information or documents to the United 

States, they 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 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 use its best efforts to give 

defendants ten calender days notice 

prior to divulging such material in any 

legal proceeding (other than a grand jury 

proceeding). 

VII. 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. 

VIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

IX. Notice 

For purposes of this Final Judgment, 

any notice or other communication shall 

be given to the persons at the addresses 

set forth below (or such other addresses 

as they may specify in writing to Ecast 

or NSM): John Read, Chief, Litigation III 

Section, U.S. Department Of Justice, 

Antitrust Division, 325 Seventh Street, 

NW., Suite 300, Washington, DC 20530. 

X. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. 

Dated: lllllllllllllll

Court approved subject to procedures 

of Antitrust Procedures and Penalties 

Act, 15 U.S.C. 16 United States District 

Judge. 

lllllllllllllllllll

In the United States District Court for 

the District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 325 7th 

Street, NW.; Suite 300, Washington, DC 

20530, Plaintiff, v. Ecast, Inc., 49 Geary 

Street, Mezzanine, San Francisco, CA 

94108, and NSM Music Group, Ltd., 3 

Stadium Way, Elland Road, Leeds, West 

Yorkshire, United Kingdom LS11 OWE, 

Defendants; Civil Case Number 

1:05CV01754, Judge: Colleen KollarKotelly, Deck Type: Antitrust, Date 

Stamp: September 2, 2005. 

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), files this Competitive Impact 

Statement relating to the proposed Final 

Judgment submitted for entry in this 

civil antitrust proceeding. 

On September 2, 2005, the United 

States filed a civil antitrust Complaint 

pursuant to section 4 of the Sherman 

Act, as amended, 15 U.S.C. 4, against 

Ecast, Inc. (‘‘Ecast’’) and NSM Music 

Group, Ltd. (‘‘NSM’’). The Complaint 

alleges that defendants entered into a 

noncompete agreement that caused 

NSM not to proceed with its plans to 

enter the U.S. digital jukebox platform 

market and compete with Ecast. That 

agreement, as the Complaint further 

alleges, is a restraint of interestate trade 

in violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. 

The Complaint seeks an order to 

prohibit defendants from enforcing or 

adhering to any agreement restraining 

competition between them, and other 

equitable relief necessary to prevent a 

recurrence of the illegal conduct. 

The United States filed 

simultaneously with the Complaint a 

proposed Final Judgment, which 

constitutes the parties’ settlement. This 

proposal Final Judgment seeks to 

prevent defendants’ illegal conduct by 

expressly enjoining them from enforcing 

or adhering to their existing 

noncompete agreement, prohibiting 

them from establishing future 

noncompete agreements with digital 

jukebox platform competitors, and 

requiring each to establish a rigorous 

antitrust compliance program. 

The United States, Ecast, and NSM 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA, unless the 

United States withdraws its consent. 

Entry of the proposed Final Judgment 

would terminate this action, except that 

this Court would retain jurisdiction to 

construe, modify, and enforce the 

proposed Final Judgment and to punish 

violations thereof. 

I. Description of the Events Giving Rise 

to the Alleged Violation of the Antitrust 

Laws 

A. Defendants 

I. Ecast 

Ecast is a San Francisco-based, 

privately held company organized 

under the laws of the State of Delaware. 

It developed a digital jukebox platform 

that supplies the software and music for 

jukeboxes manufactured by traditional 

jukebox manufacturers. Ecast refers to 

jukeboxes that incorporate its platform 

as ‘‘powered by Ecast.’’

2. NSM 

NSM is a jukebox manufacturer based 

in the United Kingdom. It conducts 

business in the United States through its 

operating subsidiary, NSM Music, Inc., 

based outside of Chicago, Illinois. 

B. The Digital Jukebox Industry 

Digital jukeboxes are Internetconnected devices installed in bars and 

restaurants that are capable of playing 

digital music files that are either stored 

on a hard drive inside each jukebox or 

are downloaded from a remote server 

via the Internet. Digital jukeboxes 

consist of two primary components, a 

physical jukebox and a ‘‘platform,’’

which is the term the industry applies 

to the combination of the software that 

powers the jukebox and the licensed 

collection of music that the jukebox is 

capable of playing. 

As is the case with CD jukeboxes and 

most other coin-operated devices found 

in bars and restaurants, digital 

jukeboxes are purchased, installed, and 

maintained by 3,000, mostly local 

businesses called ‘‘operators.’’ Operators 

purchase both CD and digital jukeboxes 

from distributors, which maintain 

relationships with jukebox 

manufacturers.1 When operators elect to 

purchase a digital jukebox, they incur—

in addition to the one-time, out-ofpocket payment to the distributor—an 

obligation to make recurring monthly 

payments to the platform provider to 

55172 Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 

maintain continuous access to the 

provider’s proprietary software and to 

the music collection that the platform 

provider licensed from U.S. copyright 

holders. 

There are roughly 15,000 digital 

jukeboxes in the United States. The 

popularity of digital jukeboxes to 

consumers, and their ability to generate 

greater revenue for the operator than CD 

jukeboxes, lead many in the industry to 

predict the pace of digital jukebox 

adoption to increase in the coming 

years. 

Digital jukeboxes offer consumers a 

song selection dramatically larger than 

CD jukeboxes. Ecast, for example, 

preloads jukeboxes incorporating its 

platform with 300 albums, but also 

permits consumers to access, for a 

higher price, a licensed collection of 

150,000 additional songs that it stored 

on its remote servers. Ecast-powered 

jukeboxes also allow consumers to pay 

to jump to the front of the song queue. 

Because operators can control the song 

selection on their digital jukeboxes from 

a remote location over the Internet, 

digital jukeboxes also relieve operators 

of the need to visit each their jukeboxes 

to load new releases or holiday 

favorites. 

Ecast released its platform in the 

United States in 2001. It did so under 

an agreement with a jukebox 

manufacturer, which manufactured and 

distributed (through the manufacturer’s 

established chain of distributors) digital 

jukeboxes incorporating the Ecast 

platform. When the manufacturer 

notified Ecast in 2002 that it intended 

to terminate their agreement, Ecast 

immediately sought to avoid an 

interruption in the delivery of Ecastpowered digital jukeboxes to the U.S. 

market by finding another manufacturer 

partner. 

C. The Illegal Noncompete Agreement 

At a September 2002 industry trade 

show, NSM displayed a prototype of a 

digital jukebox and platform that it 

intended to release in the U.S. market. 

By that time, NSM was actively 

negotiating with U.S. copyright holders 

to obtain the license it needed to 

provide music to consumers through its 

digital jukebox platform, and had 

secured a line of credit to pay advances 

typically demanded by the copyright 

holders. NSM had also modified the 

digital jukebox and platform it had 

previously released in the United 

Kingdom for release in the United 

States. It had publicly communicated its 

intention to enter the U.S. market, and 

it was internally committed to 

proceeding with those plans. 

Ecast approached NSM at the 

September 2002 industry trade show 

and proposed that NSM produce digital 

jukeboxes which would be powered by 

Ecast’s platform. During subsequent 

negotiations, Ecast agreed to make a 

significant upfront payment to NSM, 

provided that NSM abandon its entry 

plans in the U.S. and agree not to 

compete against Ecast. After further 

negotiations on those terms, Ecast 

submitted to NSM a letter of intent 

calling for an upfront payment by Ecast 

of $700,000, and containing the 

following noncompete agreement: 

NSM agrees that it will abandon its 

attempts to acquire music licenses for the 

U.S. market (the ‘‘Territory’’) and advise all 

content providers and licensors with which 

NSM has entered licenses with [sic] that it 

has abandoned entering the US market with 

its own digital music platform. NSM also 

agrees that for as long as Ecast offers the 

Ecast Platform in the Territory NSM will not 

produce a competing product in the 

Territory. 

To Ecast, the principal motivation for 

requesting the noncompete provision 

was to prevent NSM from entering and 

disrupting the digital jukebox platform 

market. NSM went ahead and approved 

the deal with Ecast that included the 

above-quoted noncompete provision. 

Pursuant to the agreement, NSM 

thereafter ceased all efforts to enter the 

U.S. market with its own digital jukebox 

platform. NSM also fired the two 

employees responsible for its planned 

entry. Those employees were the only 

NSM representatives involved in its 

copyright license negotiations, its 

successful efforts to obtain financing 

necessary to pay advances to copyright 

holders, and its communications with 

U.S. operators and distributors 

concerning NSM’s impending U.S. 

entry. 

Ecast recognized that without those 

employees, NSM no longer possessed 

the ability to enter quickly with its own 

platform. Ecast then refused to pay NSM 

the full $700,000 as agreed. Ecast and 

NSM subsequently renegotiated the 

terms of their agreement such that NSM 

would remain prohibited from entering 

the U.S. market with its own digital 

jukebox platform with smaller payments 

from Ecast. The revised agreement also 

included a license by NSM to Ecast of 

a patent concerning digital jukebox 

technology. 

D. Defendants’ Noncompete Agreement 

Is an Unreasonable Restraint of Trade 

Noncompete agreements between 

competitors can violate Section 1 of the 

Sherman Act. In this case, the 

noncompete agreement was entered into 

in conjunction with an agreement to 

jointly produce and distribute a 

product. The Department analyzed this 

noncompete agreement pursuant to the 

rule of reason because it was reasonably 

related to the venture and enhanced its 

efficiency. Under the rule of reason, the 

Department considers ‘‘all of the 

circumstances of a case in deciding 

whether a restrictive practice should be 

prohibited as imposing an unreasonable 

restraint on competition.’’ Chicago Bd. 

of Trade v. United States, 246 U.S. 231, 

238 (1918). After consideration of the 

circumstances in this case, the 

Department concluded that the 

noncompete agreement significantly 

suppressed competition and that harm 

to competition outweighed the 

procompetitive benefits of the 

agreement. 

The noncompete agreement between 

Ecast and NSM forced NSM to abandon 

its efforts to enter the U.S. market with 

its own digital jukebox platform. Many 

operators had expressed great interest in 

NSM’s entry because NSM intended to 

utilize a more attractive pricing model 

for its jukebox platform (a flat-price 

model as opposed to a percentage-orrevenue model) than either Ecast or its 

only U.S. platform competitor. This and 

other significant potential benefits to 

consumers were eliminated by the 

noncompete provision. The 

procompetitive benefits of the venture 

were very limited. Accordingly, the 

Department concluded that the 

anticompetitive effects of the 

noncompete agreement outweighed the 

procompetitive effects. 

II. Explanation of the Proposed Final 

Judgment 

The Antitrust Division typically 

seeks, through an enforcement action, to 

restore the competitive conditions that 

existed prior to defendants’

establishment of their illegal agreement. 

The Antitrust Division cannon require 

NSM to enter the U.S. digital jukebox 

platform market, but believes it is 

important to eliminate the artificial 

impediments to NSM’s ability to do so 

in the future. The proposed Final 

Judgment thus enjoins defendants from 

enforcing or adhering to this or any 

other noncompete agreement that 

restricts NSM’s entry into the U.S. 

digital jukebox platform market. The 

proposed Final Judgment also prohibits 

defendants from establishing 

noncompete agreements with other 

digital jukebox platform competitors 

and imposes a rigorous antitrust 

compliance program upon each 

defendant. 

Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 55173 

2See also United States v. Gillette Co., 406 F. 

Supp. 713, 716 (D. Mass. 1975) (recognizing it was 

not the court’s duty to settle; rather, the court must 

only answer ‘‘whether the settlement achieved 

[was] within the reaches of the public interest’’). A 

‘‘public interest’’ determination can be made 

properly on the basis of the Competitive Impact 

Statement and Response to Comments filed 

pursuant to the APPA. Although the APPA 

authorizes the use of additional procedures, 15 

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

court need not invoke any of them unless it believes 

that the comments have raised significant issues 

and that further proceedings would aid the court in 

resolving those issues. See H.R. Rep. No. 93–1463, 

93rd Cong., 2d Sess. 8–9 (1974), reprinted in 1974 

U.S.C.C.A.N. 6535, 6538. 

3Cf. BNS, 858 F.2d at 463 (holding that the 

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

limited to approving or disapproving the consent 

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

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

overall picture not hypercritically, nor with a 

Continued 

III. 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 a federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorney’s fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under 

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 lawsuit that any private 

party may bring against the defendants. 

IV. 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. 

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 

the 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. The United States will 

evaluate and respond to the comments. 

All comments will be given due 

consideration by the United States, 

through the Department of Justice, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to entry. The 

comments and the response of the 

United States will be filed with the 

Court and published in the Federal 

Register. Written comments should be 

submitted to John Read, Chief, 

Litigation III Section, Antitrust Division, 

United States Department of Justice, 325 

Seventh Street, NW., Suite 300, 

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. 

V. Alternative 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 the defendants. The 

United States could have continued the 

litigation and sought preliminary and 

permanent injunctions against Ecast and 

NSM. However, the United States is 

satisfied that the relief provided in the 

proposed Final Judgment will prevent a 

recurrence of conduct that restricted 

competition in the digital jukebox 

platform market. Thus, the proposed 

Final Judgment would achieve 

substantially all the relief the United 

States would have obtained through 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits of the Complaint. 

VI. 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: 

(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, 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 

(2) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

15 U.S.C. 16(e)(1). As the United States 

Court of Appeals for the D.C. 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 decree is sufficiently clear, 

whether enforcement mechanisms are 

sufficient, and whether the decree may 

positively harm third parties. See 

United States v. Microsoft, 56 F.3d 1448, 

1461–62 (D.C. Cir. 1995). 

‘‘Nothing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

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

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

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

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

(statement of Senator Tunney).2 Rather, 

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances. 

United States v. Mid-Am. Dairymen, 

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

at 71,980 (W.D. Mo. May 17, 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 5.2d 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. Case law requires that 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).3

55174 Federal Register / Vol. 70, No. 181 / Tuesday, September 20, 2005 / Notices 

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 charges as to 

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

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 with the range of acceptability or 

is ‘within the reaches of public 

interest.’’’ United States v. Am. Tel. & 

Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 

1982) (citations omitted) (quoting 

Gillette, 406 F. Supp. at 716), aff’d sub 

nom. Maryland v. United States, 460 

U.S. 1001 (1983); see also United States 

v. Alcan Aluminum Ltd., 605 F. Supp. 

619, 622 (W.D. Ky. 1985) (approving the 

consent 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 

Compliant, 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 compliant’’ to inquire into 

other matters that the United States 

might have but did not pursue. Id. at 

1459–60. 

VII. 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: September 2, 2005. 

Respectfully submitted, 

David C. Kully (DC Bar #448763), 

Jill A. Beaird, 

Attorneys for the United States, U.S. 

Department of Justice, Antitrust Division, 

Litigation III Section, 325 Seventh Street, 

NW., Suite 300, Washington, DC 20530, (202) 

305–9969 (telephone), (202) 307–9952 

(facsimile), David.Kully@usdoj.gov. 

[FR Doc. 05–18498 Filed 9–19–05; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

Petitions for Modification 

The following parties have filed 

petitions to modify the application of 

existing safety standards under section 

101(c) of the Federal Mine Safety and 

Health Act of 1977. 

1. Kingwood Mining Company, LLC 

[Docket No. M–2005–062–C] 

Kingwood Mining Company, LLC, 

Route 1 Box 294C, Newburg, West 

Virginia 26410 has filed a petition to 

modify the application of 30 CFR 

75.364(b)(1) (Weekly examination) to its 

Whitetail K-Mine (MSHA I.D. No. 46–

08751) located in Preston County, West 

Virginia. The petitioner requests a 

modification of the existing standard to 

permit monitoring stations to be 

established for the left side entries 

(looking inby) from the belt entry over 

of South Mains #2 at #8 crosscut to 

South Mains #4 at #9 crosscut due to 

deteriorating roof conditions. The 

petitioner proposes to establish 

monitoring stations (MS–S1, S2, S3, & 

S4) at inlet entries (MS–S3 and S4) at 

South #4 between #9–#10 crosscut and 

the outlet entries (MS–S1 and S2) at 

South #2 between #6–#7 crosscut. The 

petitioner will have a certified person 

examine the monitoring stations on a 

weekly basis for air quantity, quality, 

and direction, and record the results of 

the examination in a book. The 

petitioner will also examine the 

stopping line between the belt entry and 

the intake air entry area in question 

from the South Mains #2 at #4 crosscut 

to South Mains #4 at #9 crosscut each 

production day for integrity, and record 

the results in the daily belt examiners 

book. The petitioner asserts that the 

proposed alternative method would 

provide at least the same measure of 

protection as the existing standard. 

2. Mach Mining, LLC 

[Docket No. M–2005–063–C] 

Mach Mining, LLC, P.O. Box 300, 

Johnston City, Illinois 62951 has filed a 

petition to modify the application of 30 

CFR 75.1909(b)(6) (Nonpermissible 

diesel-powered equipment; design and 

performance requirements) to its Mach 

#1 Mine (MSHA I.D. No. 11–03141) 

located in Williamson County, Illinois. 

The petitioner proposes to operate the 

Getman Roadbuilder as it was originally 

designed without front brakes. The 

petitioner will provide training to the 

grader operators on lowering the 

moldboard for additional stopping 

capability in emergency situations; train 

operators to recognize the appropriate 

speeds to use on different roadway 

conditions; and limit the maximum 

speed of the Roadbuilder to 10 miles per 

hour. The petitioner asserts that the 

proposed alternative method would 

provide at least the same measure of 

protection as the existing standard. 

Request for Comments 

Persons interested in these petitions 

are encouraged to submit comments via 

Federal eRulemaking Portal: http:// 

www.regulations.gov; E-mail: zzMSHAComments@dol.gov; Fax: (202) 693–

9441; or Regular Mail/Hand Delivery/ 

Courier: Mine Safety and Health 

Administration, Office of Standards, 

Regulations, and Variances, 1100 

Wilson Boulevard, Room 2350, 

Arlington, Virginia 22209. All 

comments must be postmarked or 

received in that office on or before 

October 20, 2005. Copies of these 

petitions are available for inspection at 

that address. 

Dated at Arlington, Virginia, this 15th day 

of September 2005. 

Rebecca J. Smith, 

Acting Director, Office of Standards, 

Regulations, and Variances. 

[FR Doc. 05–18738 Filed 9–19–05; 8:45 am] 

BILLING CODE 4510–43–P 

NATIONAL SCIENCE FOUNDATION 

Notice of Intent To Seek Approval To 

Extend an Information Collection 

AGENCY: National Science Foundation 

(NSF). 

ACTION: Notice and request for 

comments. 

SUMMARY: The National Science 

Foundation (NSF) is announcing plans 

to request clearance of this collection. In 

accordance with the requirement of 

Section 3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13), 

we are providing opportunity for public 

comment on this action. After obtaining 

and considering public comment, NSF 

will prepare the submission requesting 

that OMB approve clearance of this 

collection for no longer than three years. 

DATES: Written comments on this notice 

must be received by November 21, 2005 

to be assured of consideration. 

Comments received after that date will 

be considered to the extent practicable. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne H. Plimpton, Reports Clearance 

Officer, National Science Foundation, 

4201 Wilson Boulevard, Suite 295, 

Arlington, Virginia 22230; telephone 

(703) 292–7556; or send e-mail to