72376 Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Notices 

(‘‘FDCPA’’), 28 U.S.C. 3304(b), to 

provide partial satisfaction of response 

costs owed by LWG under CERCLA. The 

Consent Decree resolves the United 

States’ claims against defendant LWG 

on an inability to pay basis. Resolution 

of claims against LWG terminates the 

need for inclusion of Omni in this 

matter as a Rule 19 defendant. 

Although, LWG is currently dissolved 

and without assets available to satisfy 

its CERCLA liability, under the 

proposed Consent Decree Omni will pay 

$218,250, approximately one-half of the 

available equity in the subject property, 

on behalf of LWG. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and either e-mailed to 

pubcomment-ees.enrd@usdoj.gov or 

mailed to P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, and should refer to United 

States v. Daniel Green, et. al., D.J. Ref. 

90–11–2–06906. 

The Consent Decree may be examined 

at the Office of the United States 

Attorney, 221 East Fourth Street, Suite 

400, Cincinnati, Ohio and at U.S. EPA 

Region 5, 77 West Jackson Blvd., 

Chicago, Illinois. During the public 

comment period, the Consent Decree, 

may also be examined on the following 

Department of Justice Web site: http:// 

www.usdoj.gov/enrd/ 

Consent_Decrees.html. A copy of the 

Consent Decree may also be obtained by 

mail from the Consent Decree Library, 

P.O. Box 7611, U.S. Department of 

Justice, Washington, DC 20044–7611 or 

by faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $3.75 (25 cents per 

page reproduction cost) payable to the 

U.S. Treasury or, if by e-mail or fax, 

forward a check in that amount to the 

Consent Decree Library at the stated 

address. 

William D. Brighton, 

Assistant Chief, Environmental Enforcement 

Section, Environment and Natural Resources 

Division. 

[FR Doc. 07–6105 Filed 12–19–07; 8:45 am] 

BILLING CODE 4410–15–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Commscope, Inc. and 

Andrew Corporation; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Hold Separate 

Stipulation and Order, and Competitive 

Impact Statement have been filed with 

the United States District Court for the 

District of Columbia in United States of 

America v. CommScope. Inc. and 

Andrew Corporation, Civil Action No. 

07–02200. On December 6, 2007, the 

United States filed a Complaint alleging 

that the proposed acquisition by 

CommScope, Inc. (‘‘CommScope’’) of 

Andrew Corporation (‘‘Andrew’’) would 

violate section 7 and section 8 of the 

Clayton Act, 15 U.S.C. 18, 19 by 

substantially lessening competition in 

the United States market for drop cable 

and creating interlocking directorates 

between competing companies. The 

proposed Final Judgment, filed the same 

time as the Complaint, requires the 

divestiture of: (a) Andrew’s entire stock 

ownership in Andes Industries, Inc. 

(‘‘Andes’’); (b) all notes of indebtedness 

in favor of Andrew by Andes; (c) all 

warrants to acquire additional stock of 

Andes; and (d) intellectual property 

relating to the ‘‘Z-Wire’’ product sold by 

Andes’ subsidiary PCT International, 

Inc. A Competitive Impact Statement 

filed by the United States describes the 

Complaint, the proposed Final 

Judgment, the industry, and the 

remedies available to private litigants 

who may have been injured by the 

alleged violation. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

325 7th Street, NW., Suite 215, 

Washington, DC 20530 (telephone: 202–

514–2481), on the Department of 

Justice’s Web site at http:// 

www.usdoj.gov/atr. and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by the Department of 

Justice regulations. 

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 Nancy Goodman, 

Chief, Telecommunications and Media 

Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530 (telephone: 202–

514–5621). 

J. Robert Kramer II, 

Director of Operations, Antitrust Division. 

United States District Court for the 

District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, 1401 H Street, 

NW., Suite 8000, Washington, DC 20530, 

Plaintiff, v. CommScope, Inc., 1100 

CommScope Place, SE., Hickory, North 

Carolina 28603 and Andrew Corporation, 3 

Westbrook Corporate Center, Suite 900, 

Westchester, IL 60154, Defendants. 

Case No.1 :07–cv–02200. 

Assigned To: Lamberth, Royce C. Assign 

Date: 12/6/2007. 

Description: Antitrust. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action to enjoin the 

proposed acquisition of Andrew 

Corporation (‘‘Andrew’’) by 

CommScope, Inc. (‘‘CommScope’’) and 

alleges as follows: 

1. CommScope is a large manufacturer 

of wire and cable products used by, 

among others, telecommunications 

companies. CommScope is the leading 

manufacturer of drop cable in the 

United States, with a market share of 

approximately 60 to 70 percent. ‘‘Drop 

cable’’ is coaxial cable used by cable 

television providers to connect their 

transmission systems to their customers’

premises and equipment inside the 

customers’ premises. Drop cable sales 

average approximately $500 million a 

year in the United States. 

2. Andrew is a global designer, 

manufacturer and supplier of 

communications equipment and 

systems. Andrew was a manufacturer of 

drop cable until it sold this business in 

March 2007 to Andes Industries, Inc. 

(‘‘Andes’’). Andes’ subsidiary, PCT 

International, Inc. (‘‘PCT’’), is a 

manufacturer of broadband hardware 

products used with drop cable 

installations. PCT and another Andes 

subsidiary, PCT Broadband 

Communications (Yantai) Co. Ltd. 

(‘‘PCTY’’), manufacture and sell drop 

cable. As a result of two transactions 

between Andrew and Andes, Andrew 

holds thirty (30) percent of Andes’

equity and voting shares, a warrant that 

could allow it to increase its share 

holdings, and several Andes’ notes of 

indebtedness. Andrew also has certain 


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governance rights, including the right to 

appoint one of Andes’ three board 

members. 

3. On June 26, 2007, defendants 

CommScope and Andrew entered into 

an Agreement and Plan of Merger, 

pursuant to which CommScope will 

acquire Andrew in an all-stock 

transaction valued at approximately 

$2.6 billion. 

4. As a result of the proposed 

acquisition, CommScope will obtain a 

30 percent ownership interest in, and 

the right to appoint members to the 

board of directors of, one of its most 

significant competitors in the 

development, manufacture, and sale of 

drop cable. In addition, given its 

ownership of shares, warrants and debt 

instruments, and its governance rights, 

it will be able to exert substantial 

control over Andes. Therefore, 

CommScope’s acquisition of Andrew 

would violate section 7 and section 8 of 

the Clayton Act because it would 

substantially lessen competition in the 

market for drop cable and would create 

interlocking directorates between 

competing companies. 

I. Jurisdiction and Venue 

5. This action is filed by the United 

States under section 15 of the Clayton 

Act, as amended, 15 U.S.C. 25, to 

prevent and restrain the violation by 

defendants of section 7 and section 8 of 

the Clayton Act, 15 U.S.C. 18, 19. 

6. Defendant CommScope and 

defendant Andrew both manufacture 

and sell telecommunications products 

throughout the United States. 

Defendants are engaged in interstate 

commerce and in activities substantially 

affecting interstate commerce. This 

Court has jurisdiction over this action 

and the defendants pursuant to section 

15 of the Clayton Act, 15 U.S.C. 25, and 

28 U.S.C. 1331, 1337(a), and 1345. 

7. Defendants transact business and 

are found within the District of 

Columbia. Venue is proper in the 

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

U.S.C. 1391(c). Defendants acknowledge 

personal jurisdiction in the District of 

Columbia and consent to venue. 

II. Defendants 

8. Defendant CommScope, with its 

headquarters in Hickory, North 

Carolina, is a corporation organized and 

existing under the laws of the state of 

Delaware. CommScope is a major 

manufacturer and provider of wire and 

cable products. For fiscal year 2006, it 

reported total revenues in excess of $1.6 

billion, with $550 million coming from 

its broadband business segment, which 

supplies cable and hardware products to 

cable television and 

telecommunications companies. 

9. Defendant Andrew, with its 

headquarters in Westchester, Illinois, is 

a corporation organized and existing 

under the laws of the state of Delaware. 

Andrew is a major manufacturer and 

supplier of antenna and cable products 

and products for wireless 

communication systems. For fiscal year 

2006, it reported total sales in excess of 

$2.1 billion, with approximately $1.3 

billion coming from its antenna and 

cable business segment. 

10. Andrew holds extensive interests 

in, and the means to exercise effective 

control over, Andes and its subsidiaries, 

PCT and PCTY. Andrew owns shares of 

Andes equal to 30 percent of Andes’

equity. It holds a warrant to purchase up 

to ten percent more of Andes’ equity. It 

holds three notes of indebtedness issued 

by Andes and Andes’ subsidiaries, in a 

total amount of almost $16 million. 

Andrew currently designates one 

member of Andes’ three-member board 

of directors. After CommScope acquires 

Andrew, the combined firm will have 

the right to designate two members and, 

jointly with another Andes’ shareholder, 

to select two more members of Andes’

board, which will then consist of seven 

members. Andes and Andrew also have 

entered into an Amended and Restated 

Investor Rights Agreement (the ‘‘IRA’’) 

which effectively requires, and will 

continue to require, Andrew’s approval 

for a wide range of Andes’ corporate 

actions. 

III. Violation of Section 7 of the Clayton 

Act: Acquisition Substantially Lessening 

Competition 

A. Relevant Product Market 

11. Drop cable is 75 ohm coaxial cable 

used by cable television companies to 

connect their transmission systems with 

their customers’ premises and 

equipment inside the customers’

premises. Drop cable consists of a 

plastic jacket, metal braid and foil 

shielding, a dielectric layer, and a center 

conductor. Drop cable is used by cable 

television companies in three different 

kinds of locations: (1) In the air between 

outside poles and the exteriors of the 

customers’ premises; (2) underground 

between buried transmission systems 

and the exteriors of the customers’

premises; and (3) inside the customers’

premises to connect the exterior cables 

with customer-premises devices. Drop 

cable strung between outside poles and 

the exteriors of the customers’ premises 

typically contains an ultraviolet (‘‘UV’’) 

protectant in the jacket and a steel wire, 

called a ‘‘messenger,’’ inside the cable to 

reduce flexing; much of this aerial cable 

also incorporates anti-corrosion 

protection for the metal shielding. Drop 

cable used underground typically is 

‘‘flooded’’ with a gel compound in order 

to prevent water ingress and corrosion. 

12. No matter how it is used, all drop 

cable purchased by cable television 

companies is distinguished from other 

75 ohm coaxial cable, which is usually 

called ‘‘commodity’’ cable. Drop cable 

must meet Society of Cable Television 

Engineers (‘‘SCTE’’) and other cable 

television industry standards. Those 

standards address, inter alia, durability, 

uniformity, electrical conduction and 

signal shielding. Signal shielding 

standards address the ability of the 

cable to prevent signal leakage outside 

the cable, as well as leakage into the 

cable of extraneous outside signals. 

Compliance with SCTE and other 

industry standards assures cable 

television companies that the drop cable 

they buy will not require frequent 

replacement, will fit with the other 

components of their systems, can 

readily be handled by a cable system’s 

installers and technicians, and, most 

importantly, will deliver a strong and 

interference-free signal. Because it must 

meet SCTE and other industry 

standards, drop cable is substantially 

more difficult to manufacture than 

commodity cable. 

13. A small but significant increase in 

the price of drop cable would not cause 

cable television companies to substitute 

commodity cable so as to make such a 

price increase unprofitable. Cable 

television companies could not use 

commodity cable without: Substantially 

increasing the cost and difficulty of 

installing and servicing the cable in 

their systems, and seriously 

jeopardizing their relationships with 

their own customers because of poor 

signal quality. In addition, commodity 

cable typically lacks the UV and anticorrosion protection, and interior 

messengers, usually required for aerial 

drop cable, and the flooded gel 

compounds typically required for 

underground drop cable. 

14. Accordingly, the development, 

manufacture, and sale of drop cable is 

a line of commerce and a relevant 

product market within the meaning of 

section 7 of the Clayton Act. 

B. Geographic Market 

15. The United States is a distinct 

geographic market for the sale of drop 

cable. SCTE and cable televison 

industry standards are designed to meet 

the needs of cable television companies 

operating in the United States. Although 

PCTY and CommScope manufacture 

drop cable in China for sale in the 

United States, no foreign companies 


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make drop cable that conforms to SCTE 

and United States cable television 

industry standards, and no foreign 

companies sell drop cable to cable 

television companies in the United 

States. In addition, cable television 

companies in the United States require 

their suppliers to have a substantial 

presence within the United States, 

including distribution facilities and 

service infrastructures. No foreign 

company maintains such a presence for 

drop cable in the United States. 

Therefore, a small but significant 

increase in the price of drop cable 

would not cause cable television 

companies in the United States to 

substitute purchases from companies 

who operate outside the United States 

in sufficient quantities so as to make 

such a price increase unprofitable. 

Accordingly, the United States is a 

relevant geographic market within the 

meaning of section 7 of the Clayton Act, 

15 U.S.C. 18. 

C. Anticompetitive Effects 

16. The proposed transaction, 

including CommScope’s acquisition of 

Andrew’s interests in Andes, would 

substantially lessen competition in the 

market for drop cable in the United 

States. The market for drop cable is 

already highly concentrated. There are 

only four companies that provide drop 

cable to cable television companies in 

the United States. CommScope is the 

leading manufacturer, with a market 

share of between 60 and 70 percent. 

PCT is the third largest manufacturer 

with about a four percent market share. 

PCT is having a significant impact in the 

market because of its low pricing and 

ability to offer drop cable with dry anticorrosion protection. 

17. The full product lines offered by 

CommScope and PCT make them each 

other’s closest competitors for many 

customers. Of the four manufacturers, 

only CommScope and PCT offer aerial 

drop cable in which a dry chemical 

coating is applied to the cable’s braided 

metal shield to prevent corrosion of the 

metal. The processes by which both 

firms make products in this category—

called Brightwire by CommScope and ZWire by PCT—are protected by patent. 

Many cable television firms need or 

prefer the dry anti-corrosion protection 

offered by Brightwire or Z-Wire. This is 

especially true for firms whose cable 

television systems are located in areas 

prone to metal oxidation, such as areas 

near sea coasts. 

18. Competition between PCT and 

CommScope in the sale of drop cable 

has benefitted consumers. The 

competition by PCT and its predecessor 

Andrew in the drop cable market has 

constrained CommScope’s pricing. The 

prices charged by Andrew and PCT 

generally have been five to ten percent 

lower than those charged by 

CommScope and other competitors. 

Andrew’s and later, PCT’s, market share 

has been increasing as a greater number 

of cable television firms have approved 

their products for purchase. 

19. PCT and CommScope also 

compete with each other in product 

innovation. CommScope developed the 

first dry anti-corrosion protected drop 

cable product, Brightwire. Andrew 

developed Z-Wire specifically to 

compete for sales that would otherwise 

have gone to Brightwire. PCT and 

CommScope have continued to develop 

new technology in drop cable. 

20. Through the proposed acquisition 

of Andrew by CommScope, CommScope 

will acquire a substantial interest in, as 

well as substantial control over, one of 

its most significant drop cable 

competitors. In addition to holding a 30 

percent interest in Andes, Andrew 

holds significant rights under the IRA to 

control core business decisions and to 

obtain critical confidential competitive 

information from Andes and PCT. 

Through the acquisition, CommScope 

would gain, among other rights, the 

rights to appoint Andes’ board members 

and to veto important business 

decisions by Andes, such as issuing 

capital stock, changing executive 

compensation, and making certain 

acquisitions of other corporations. Postmerger, CommScope would likely have 

the ability and incentive to coordinate 

the activities of CommScope and PCT, 

and/or undermine PCT’s ability to 

compete against CommScope on price 

and innovation. Such activity would 

likely result in a significant lessening of 

competition. This loss of competition 

would likely result in higher prices, 

reduced innovation, and fewer choices 

for customers. 

D. Entry 

21. Successful entry into the drop 

cable market would not be timely, likely 

or sufficient to deter the anticompetitive effects resulting from this 

transaction. The drop cable industry has 

been characterized by firms exiting and 

failed entry attempts. Andrew itself 

began the process of entering the market 

in 1997, and only now, ten years later, 

has its successor, PCT, achieved a four 

percent market share. 

22. Timely entry sufficient to replace 

the market impact of PCT would be 

difficult for several reasons. Any new 

manufacturer would have to develop a 

product line and set up a manufacturing 

facility, submit sample products for the 

extensive laboratory and field tests 

required by all substantial cable 

television firms, and then undergo the 

lengthy process of attempting to sell the 

products to those companies. PCT’s 

success is due in part to its ability to 

offer a full line of drop cable products. 

A new entrant could not duplicate that 

success unless it could offer drop cable 

with dry anti-corrosion protection. The 

Brightwire and Z-Wire products are 

both protected by patent. Development 

of a new process which does not 

infringe on those patents would likely 

be time-consuming and difficult. 

IV. Violation of Section 8 of the Clayton 

Act: Interlocking Directorates 

23. CommScope is a corporation 

engaged in commerce. It manufactures, 

among other things, drop cable and, 

through a wholly-owned subsidiary, 

hardware products associated with drop 

cable installations. Andes, through its 

wholly-owned subsidiaries, PCT and 

PCTY, is engaged in commerce. PCT 

and PCTY manufacture drop cable and 

hardware products associated with drop 

cable installations. Both CommScope 

and PCT sell drop cable and associated 

hardware products throughout the 

United States. With respect to those 

products, CommScope and PCT are, by 

virtue of their businesses and locations 

of operations, competitors, and the 

elimination of competition by 

agreement between them would 

constitute a violation of the antitrust 

laws. 

24. Both CommScope and Andes have 

capital, surplus and undivided profits in 

excess of $24,001,000. Both 

CommScope and Andes had sales in 

their last fiscal years of products in 

competition with products of the other 

exceeding $2,400,100. Each firm’s 

annual competitive sales of these 

products exceeded two percent of its 

total sales. The annual competitive sales 

of these products by each firm also 

exceeded four percent of its total sales. 

25. Section 6 of the IRA now conveys 

to Andrew a right to appoint one 

member of Andes’ three-member board 

of directors. When CommScope 

completes its acquisition of Andrew, 

Section 6 requires Andes’ board of 

directors to be reconstituted as a new 

board of seven members. At that time 

section 6 will convey to Andrew, and by 

extension to CommScope, the right to 

designate two of the seven members of 

Andes’ board of directors. In addition, 

Andrew, and by extension CommScope, 

will have the right to select, jointly with 

another Andes shareholder, two more 

members of Andes’ board of directors. 

26. CommScope is a person within 

the meaning of section 8 of the Clayton 

Act, 15 U.S.C. 19. CommScope 


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nominates the members of its own board 

of directors. Its nominees, designees and 

selectees for the Andes’ board stand or 

will stand in its stead for the purposes 

of section 8. CommScope will thus, 

when it completes its acquisition of 

Andrew, participate through its 

representatives both on its own board of 

directors and on the Andes’ board of 

directors. 

V. Violations Alleged 

Count One 

(Violation of Section 7 of the Clayton 

Act) 

27. Each and every allegation in 

paragraphs 1 through 26 of this 

Complaint is here realleged with the 

same force and effect as though said 

paragraphs were here set forth in full. 

28. CommScope and Andrew are 

hereby named as defendants on Count 

One of this complaint. 

29. The effect of the proposed 

acquisition by CommScope of Andrew 

may be to lessen competition 

substantially in the development, 

manufacture, and sale of drop cable in 

the United States, in violation of section 

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

30. Unless restrained, the proposed 

acquisition by CommScope of Andrew 

likely will have the substantial anticompetitive effects set forth in 16–20 

above, in violation of section 7 of the 

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

Count Two (Violation of Section 8 of the 

Clayton Act) 

31. Each and every allegation in 

paragraphs 1 through 26 of this 

Complaint is here realleged with the 

same force and effect as though said 

paragraphs were here set forth in full. 

32. CommScope and Andrew are 

hereby named as defendants on Count 

Two of this Complaint. 

33. The proposed acquisition by 

CommScope of Andrew, by conveying 

to CommScope rights to designate 

members of the board of directors of 

Andes will create interlocking 

directorates between competing 

corporations, in violation of section 8 of 

the Clayton Act, 15 U.S.C. 19. 

VI. Requested Relief 

34. Plaintiff requests: 

a. That the proposed acquisition be 

adjudged to violate Section 7 and 

Section 8 of the Clayton Act, 15 U.S.C. 

18, 19; 

b. that the defendants and all persons 

acting on their behalf be permanently 

enjoined and restrained from carrying 

out the Agreement and Plan of Merger 

dated June 26, 2007, or from entering 

into or carrying out any agreement, 

understanding, or plan by which 

CommScope would merge with or 

acquire Andrew, and that includes any 

ownership interests or governance rights 

in Andes; 

c. that defendants and all persons 

acting on their behalf be enjoined and 

restrained from violating Section 8 of 

the Clayton Act, 15 U.S.C. 19. 

d. that the United States be awarded 

the costs of this action; 

e. that the United States be granted 

such other and further relief as the 

Court may deem just and proper. 

Dated: 

Respectfully Submitted, 

For Plaintiff United States of America: 

/s/ lllllllllllllllllll

Thomas O. Barnett (D.C. Bar No. 426840) 

Assistant Attorney General 

Antitrust Division 

/s/ lllllllllllllllllll

J. Robert Kramer II 

Director of Operations 

Antitrust Division 

/s/ lllllllllllllllllll

Nancy M. Goodman (D.C. Bar No. 251694) 

Chief, Telecommunications & Media 

Enforcement Section 

Antitrust Division 

/s/ lllllllllllllllllll

Laury Bobbish 

Assistant Chief, Telecommunications & 

Media Enforcement Section 

Antitrust Division 

/s/ lllllllllllllllllll

Alvin H. Chu 

Michael Hirrel (D.C. Bar No. 940353) 

Brent Marshall 

Peter Gray 

Attorneys, Telecommunications & Media 

Enforcement Section 

Antitrust Division 

U.S. Department of Justice 

City Center Building 

1401 H Street, N.W., Suite 8000 

Washington, D.C. 20530 

(202) 514–5621 

Facsimile: (202) 514–6381 

United States District Court District of 

Columbia 

United States of America, Plaintiff, v. 

CommScope, Inc., and Andrew Corporation, 

Defendants. 

Case No: 1:07-cv-02200. 

Filed: 12/6/2007. 

Final Judgment 

Whereas, Plaintiff, United States of 

America, filed its Complaint on 

December 6, 2007, the United States and 

defendants, CommScope, Inc. 

(‘‘CommScope’’) and Andrew 

Corporation (‘‘Andrew’’), by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

Andrew and CommScope to assure that 

competition is not substantially 

lessened; 

And whereas, the United States 

requires Andrew and CommScope 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 

divestiture required below can and will 

be made and that defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under section 7 and 

section 8 of the Clayton Act, as 

amended (15 U.S.C. 18,19). 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘CommScope’’ means defendant 

CommScope, Inc., a Delaware 

corporation with its headquarters in 

Hickory, North Carolina, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

B. ‘‘Andrew’’ means defendant 

Andrew Corporation, a Delaware 

corporation with its headquarters in 

Westchester, Illinois, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘Acquirer’’ means the entity or 

person to whom defendants divest their 

interests in the Andes Holdings. 

D. ‘‘Andes’’ means Andes Industries, 

Inc., a Nevada corporation with its 

headquarters in Gilbert, Arizona, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 


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ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘PCT’’ means PCT International, 

Inc., a wholly-owned subsidiary of 

Andes. 

F. ‘‘Yantai Factory’’ means the factory 

in Yantai City, China formerly operated 

by Andrew Broadband 

Telecommunications (Yantai) Co., Ltd., 

now operated by PCT Broadband 

Communications (Yantai) Co. Ltd., a 

subsidiary of Andes located in Yantai 

City, China, and used to manufacture, 

inter alia, coaxial cable. 

G. ‘‘IRA’’ means the Amended and 

Restated Investor Rights Agreement 

dated March 30,2007 between Andes 

and Andrew. 

H. ‘‘Andes Holdings’’ means stock 

representing Andrew’s entire ownership 

interest in Andes, the Z-Wire IP, as well 

as all notes of indebtedness in favor of 

Andrew by Andes, and warrants to 

acquire additional stock of Andes, 

including but not limited to: 

1. Senior Note dated April 2, 2007 

issued in favor of Andrew for the 

amount of $9,035,000; 

2. Senior Note dated March 30, 2007 

issued in favor of Andrew Corporation 

Mauritius for the amount of $5,592,000; 

3. Promissory Note, dated September 

29, 2006, issued in favor of Andrew for 

the amount of $1,016,000; and 

4. Warrant to Acquire Common Stock 

of Andes dated April 2, 2007, held by 

Andrew and Andrew Corporation 

Mauritius. 

I. ‘‘Youtsey’’ means Steve Youtsey, 

Chief Executive Officer of and 

stockholder in Andes. 

J. ‘‘Drop Cable’’ means 75 ohm coaxial 

cable used by cable television 

companies to connect their transmission 

systems with their customers’ premises 

and equipment inside the customers’

premises. 

K. ‘‘Z-Wire IP’’ means all intellectual 

property concerning the ‘‘Z-Wire’’

product now made and sold by PCT and 

PCT Broadband Communications 

(Yantai) Co. Ltd. This intellectual 

property shall include, but not be 

limited to, the ‘‘Z-Wire’’ Trademark, 

Serial No. 78,658,023 and the patent, 

U.S. Patent No. 7,084,343 B1, dated 

August 1,2006, concerning the Z-Wire 

product. 

III. Applicability 

A. This Final Judgment applies to 

CommScope and Andrew, as defined 

above, and all other persons in active 

concert or participation with any of 

them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

B. If, prior to complying with sections 

IV and V of this Final Judgment, 

defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of lesser business units that include the 

Andes Holdings, they shall require the 

purchaser to be bound by the provisions 

of this Final Judgment. Defendants need 

not obtain such an agreement from the 

Acquirer of the assets divested pursuant 

to this Final Judgment. 

IV. Divestitures 

A. Defendants are ordered and 

directed, within 90 calendar days after 

the filing of the Complaint in this 

matter, or five (5) calendar days after 

notice of the entry of this Final 

Judgment by the Court, whichever is 

later, to divest the Andes Holdings in a 

manner consistent with this Final 

Judgment to an Acquirer acceptable to 

the United States, in its sole discretion. 

Divestiture of all the Andes Holdings 

shall be made to one Acquirer. The 

United States, in its sole discretion, may 

agree to one or more extensions of this 

time period, not to exceed 60 calendar 

days in total, and shall notify the Court 

in such circumstances. If within the 

initial period for divestiture, plus any 

extensions, an agreement with a 

prospective Acquirer has been reached 

and the prospective Acquirer, and the 

terms of the acquisition agreement, have 

been approved by the United States, and 

the defendants have provided the 

written notice of intent to sell required 

by section 4.1(b) of the IRA (‘‘IRA 

4.I(b)’’), the time for completing the 

divestiture shall automatically be 

extended, in order to allow defendants 

to comply with the right of first refusal 

provision in IRA 4.1(b). The period of 

this extension shall not exceed five (5) 

days past the date on which both Andes 

and Youtsey have failed to timely (a) 

deliver a Right of First Refusal 

(‘‘ROFR’’) Notice accompanied by a 

Reasonable Assurances Letter pursuant 

to IRA 4.1(b); or (b) consummate the 

purchase of Andrew’s ownership 

interest in Andes pursuant to IRA 4.1(b). 

Defendants agree to use their best efforts 

to divest the Andes Holdings 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 Andes Holdings. 

Defendants shall inform any person 

making inquiry regarding a possible 

purchase of the Andes Holdings 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 that are 

available to them relating to the Andes 

Holdings or to Andes, to the extent 

permitted by sections IV(C) and VIII(B) 

below or by sections V(A) and V(B) of 

the Hold Separate and Stipulation 

Order, and 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, at the option of 

Andes, continue to provide the services 

now provided pursuant to the 

Transition Services Agreement dated 

March 30, 2007, according to the terms 

of that Agreement, until the end of 

February 2008. At the end of the period 

in which defendants provide transition 

services, defendants shall, at the option 

of Andes, provide a copy in a format 

acceptable to Andes from the relevant 

Andrew servers of all historic data 

concerning operation of the Yantai 

Factory. In any event, defendants shall 

maintain the operations software and 

the data on the servers for a period of 

two months after completion of the 

transition services period, and, during 

those two months, shall make available 

to Andes any information on the servers 

that is requested by Andes, except the 

licensed software itself. At the end of 

those two months, defendants shall 

erase from the servers all data relating 

to the operations of the Yantai Factory, 

but they may keep one copy of that data, 

which copy they shall place in the 

custody of their outside counsel. 

Defendants shall not access or use the 

Andes data on the servers or the copy 

for any purpose; provided, however, 

that, pursuant to a protective order 

issued by the Court, outside counsel and 

employees whose participation is 

necessary may access the Andes data to 

the extent necessary for the defense of 

a lawsuit or in connection with a 

regulatory or tax proceeding of which 

the defendants are, or one of them is, 

the subject. 

D. To the extent that Andrew now 

provides services, materials or building 

space to Andes, defendants shall, at the 

option of Andes, continue to provide 

those services, materials and building 

space on the existing terms until the end 

of the period in which defendants 

provide transition services pursuant to 

section IV(C) above. During the period 

in which defendants continue to 

provide services to Andes, they may not 

reduce the quality or timeliness of those 

services, including services under both 

this and section IV(C) above. 


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E. Defendants shall divest to the 

Acquirer, as part of the Andes Holdings, 

the Z-Wire IP. The Acquirer shall 

acquire this intellectual property subject 

to Andrew’s rights and obligations 

under the Technology Licensing 

Agreement dated March 30, 2007, 

between Andrew and PCT Broadband 

Communications (Yantai) Co. Ltd. 

Andrew shall assign its part in that 

agreement to the Acquirer, the Acquirer 

shall assume Andrew’s position as 

licensor under the agreement, and PCT 

Broadband Communications (Yantai) 

Co. Ltd. shall remain the licensee. As 

part of the divestiture of the Z-Wire IP, 

the Acquirer shall offer defendants a 

non-exclusive, royalty-free license to 

use U.S. Patent No. 7,084,343 B1, 

provided that the license does not 

permit defendants to use the Z-Wire IP 

to develop, make, use or sell Drop Cable 

products and provided that the license 

does not directly or indirectly affect 

Andes’ ability to use the Z-Wire IP. 

Prior to the divestiture of the Z-Wire IP, 

defendants shall, at the option of Andes, 

grant Andes and PCT a perpetual, 

worldwide and royalty-free license to 

use the ‘‘Z-Wire’’ trademark, Serial No. 

78,658,023, and the Z-Wire trademark, 

Serial No. 78,658,023 shall be divested 

to the Acquirer subject to that license. 

F. Defendants shall not take any 

action that will jeopardize, delay or 

impede in any way the divestiture of the 

Andes Holdings. 

G. 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 

Andes Holdings, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that Andes will remain a viable 

competitor in the market for Drop Cable, 

and that the divestiture will remedy the 

competitive harm alleged in the 

Complaint resulting from CommScope’s 

acquisition of Andrew. In addition, the 

divestiture, whether pursuant to section 

IV or section V of this Final Judgment, 

shall be made to an Acquirer that in the 

United States’ sole judgment has the 

intent and capability of investing in 

Andes in such a manner as to support 

the continued competitive operations of 

its Drop Cable business and shall be 

accomplished so as to satisfy the United 

States, in its sole discretion, that none 

of the terms of any agreement between 

the Acquirer and defendants 

unreasonably raises Andes’ costs, 

lowers Andes’ efficiency, or otherwise 

interferes in the ability of Andes to 

compete effectively. 

H. Upon completion of the divestiture 

to the Acquirer, neither the defendants 

nor the trustee shall have any rights 

under the IRA. 

I. Nothing in this Final Judgment shall 

prohibit defendants from seeking 

payment of the notes within the Andes 

Holdings or for services or products 

supplied under the terms of any 

agreement with Andes, and taking 

action to collect any amounts past due 

under those agreements, including 

institution of legal proceedings to 

collect those overdue amounts; 

provided, however, that defendants may 

not undertake legal actions that would 

jeopardize the divestiture required by 

this Final Judgment or Andes’

continuing viability, including, but not 

limited to, seeking accelerated payment 

of principal or other amounts not 

currently overdue or seeking to place 

Andes in involuntary bankruptcy; nor 

may defendants exercise any right under 

the Warrant to acquire additional Andes 

stock. 

V. Appointment of Trustee 

A. If defendants have not divested the 

Andes Holdings 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 Andes Holdings. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Andes 

Holdings. 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 

CommScope (or to Andrew if Andrew 

has not been acquired by CommScope at 

that time) 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 

Andes Holdings 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 

Andrew’s personnel responsible for its 

Andes investment and to documents 

and information concerning Andes in 

Andrew’s possession, 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, 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, the Andes Holdings, and 

shall describe in detail each contact 

with any such person. The trustee shall 

maintain full records of all efforts made 

to divest the Andes Holdings. 

G. If the trustee has not accomplished 

the divestiture ordered under this Final 

Judgment within six months after its 

appointment, the trustee shall promptly 

file with the Court a report setting forth 

(1) the trustee’s efforts to accomplish the 

required divestiture, (2) the reasons, in 

the trustee’s judgment, why the required 

divestiture has not been accomplished, 

and (3) the trustee’s recommendations. 

To the extent such reports contain 


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information that the trustee deems 

confidential, such reports shall not be 

filed in the public docket of the Court. 

The trustee shall at the same time 

furnish such report to the United States 

which shall have the right to make 

additional recommendations consistent 

with the purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of the Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the 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 Andes Holdings, 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 with 

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 section 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 Section IV or V of this Final 

Judgment. 

VIII. Hold Separate 

A. Until the divestiture required by 

this Final Judgment has been 

accomplished, the defendants shall be 

bound by, and shall take all steps 

necessary to comply with, the Hold 

Separate Stipulation and Order entered 

by this Court. The Hold Separate 

Stipulation and Order shall survive 

entry of this Final Judgment until the 

divestiture has been completed. 

B. Defendants shall not access or use 

any written confidential information 

provided to defendants by Andes about 

Andes’ business operations, or access or 

use any written confidential information 

still possessed by Andrew about its 

former Drop Cable business and the 

Yantai Factory. Outside counsel for 

defendants and employees whose 

participation is necessary, may, 

however, access such information to the 

extent necessary to meet legal or 

regulatory requirements or to conduct a 

defense of a lawsuit, but only subject to 

a protective order by the Court. 

Defendants may also designate a third 

party agent approved by the United 

States to access on their behalf such 

confidential business information to 

which defendants are otherwise entitled 

for the purpose of sharing that 

information with bona fide prospective 

acquirers of the Andes Holdings. The 

agent shall identify to Andes in advance 

all prospective acquirers with whom 

confidential information will be shared, 

and shall, at Andes’ request, require 

those prospective acquirers to execute 

confidentiality agreements binding them 

to keep the information confidential and 

to use it for no purpose other than to 

evaluate the prospective acquisition. 

The agent may not in any circumstances 

share any Andes confidential 

information with defendants. 

C. Defendants shall take no action that 

would diminish the value of the Andes 

Holdings. 

IX. Survival of Agreements 

The Trademark License Agreement 

dated March 30, 2007 among Andrew, 

PCT and Andes, shall remain in force 

according to its terms. CommScope 

shall comply with Andrew’s obligations 

under that agreement. Defendants shall 

not unreasonably interfere with the 

rights of Andes and PCT to use the 

subject intellectual property licensed 

under that agreement. Prior to the 

divestiture, the Trademark License 

Agreement shall, with respect to the ‘‘ZWire’’ trademark, Serial No. 78,658,023, 

be superseded by the new Z-Wire 

trademark license described in section 

IV(E) above. 

X. Affidavits 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestiture has 

been completed under section IV or V, 

defendants shall deliver to the United 

States an affidavit as to the fact and 

manner of its compliance with section 

IV or V of this Final Judgment. Each 

such affidavit with respect to section IV 

shall include the name, address, and 

telephone number of each person who, 

during the preceding thirty (30) 

calendar 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 Andes 

Holdings, and shall describe in detail 

each contact with any such person 

during that period. Each such affidavit 

with respect to section IV shall also 

include a description of the efforts 

defendants have taken to solicit buyers 

for the Andes Holdings, and to provide 

required information to prospective 

acquirers, including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by defendants, including limitation on 

information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, defendants shall deliver to the 

United States an affidavit that describes 

in reasonable detail all actions 

defendants have taken and all steps 

defendants have implemented on an 

ongoing basis to comply with section 

VIII of this Final Judgment. 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 Andes Holdings until one year after 

such divestiture has been completed. 


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XI. 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 

authorized representatives of the United 

States Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of an authorized representative 

of the Assistant Attorney General in 

charge of the Antitrust Division, and on 

reasonable notice to defendants, be 

permitted: 

(1) Access during defendants’ office 

hours to inspect and copy, or at the 

option of the United States, to require 

defendants to provide hard copy or 

electronic copies of, all books, ledgers, 

accounts, records, data, and documents 

in the possession, custody, or control of 

defendants, relating to any matters 

contained in this Final Judgment; and 

(2) To interview, either informally or 

on the record, defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If at the time information or 

documents are furnished by defendants 

to the United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

26(c)(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). 

XII. Restrictions on Acquisition 

Defendants may not reacquire all or 

any part of Andes or the Andes 

Holdings within the term of this Final 

Judgment, unless: (1) Defendants have, 

not earlier than the date three years after 

the Andes Holdings are divested, filed 

a Notification and Report required by 

the Hart-Scott-Rodino Antitrust 

Improvements Act of 1976, and all 

applicable waiting periods under that 

Act have expired, or; (2) if no such 

Notification and Report is required, 

defendants have, not earlier than the 

date three years after the Andes 

Holdings are divested, provided written 

notice to the United States containing 

information equivalent to that required 

in a Hart-Scott-Rodino Notification and 

Report, and either thirty days thereafter 

the United States has not issued a 

request for further information and 

documents, or, if the United States has 

issued such a further request, thirty 

days have expired since the date on 

which defendants certify that they have 

substantially complied with that further 

request, and; (3) in either or both of the 

preceding cases, the United States has 

not objected in writing to the 

reacquisition. Provided, further, that the 

Andes Holdings are deemed to include 

any license defendants might acquire to 

use any part of the Z-Wire IP for Drop 

Cable. Nothing in this Final Judgment 

affects any ability defendants may 

otherwise have to acquire any parts of 

Andes’ business that solely concern 

products other than Drop Cable. 

XIII. 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. 

XIV. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’s responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: llllllllllllllllll

Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. § 16 

lllllllllllllllllllll

United States District Judge 

In the United States District Court for 

the District of Columbia 

United States Of America, Plaintiff, v. 

Commscope, Inc. and Andrew 

Corporation, Defendants. 

Case No. 1:07–cv–02200. 

Assigned To: Lamberth, Royce C. 

Assign Date: 12/6/2007. 

Description: Antitrust. 

Competitive Impact Statement 

Plaintiff United States of America 

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

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

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

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

Defendants entered into an Agreement 

and Plan of Merger dated June 26, 2007, 

pursuant to which CommScope, Inc. 

(‘‘CommScope’’) will acquire Andrew 

Corporation (‘‘Andrew’’). As a result of 

the transaction, CommScope will 

acquire Andrew’s interests, including 

stock ownership, notes of indebtedness 

and management rights, in Andes 

Industries, Inc. (‘‘Andes’’). Plaintiff filed 

a civil antitrust Complaint on December 

l, 2007 seeking to enjoin the proposed 

acquisition. The Complaint alleges that 

the acquisition by CommScope of 

Andrew’s holdings in Andes may 

substantially lessen competition in the 

market for drop cable and will create 

interlocking directorates, in violation of 

Section 7 and Section 8 of the Clayton 

Act, 15 U.S.C. 18, 19. This loss of 

competition would likely result in 

higher prices, reduced innovation, and 

fewer choices for customers. 

At the same time the Complaint was 

filed, plaintiff also filed a Hold Separate 

Stipulation and Order and proposed 

Final Judgment, which are designed to 

eliminate both the anti competitive 

effects of the acquisition and the 

interlocking directorates. Under the 

proposed Final Judgment, which is 

explained more fully below, defendants 


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are required to divest (a) Andrew’s 

entire ownership in Andes; (b) all notes 

of indebtedness in favor of Andrew by 

Andes; (c) all warrants to acquire 

additional stock of Andes; and (d) 

intellectual property relating to the ‘‘ZWire’’ product (collectively the ‘‘Andes 

Holdings’’). At the same time as the 

required divestiture, defendants will 

relinquish Andrew’s governance rights 

over Andes, including rights to appoint 

members of Andes’ board of directors. 

Under the Hold Separate Stipulation 

and Order, defendants will take certain 

steps to ensure (a) that defendants do 

not exercise any of Andrew’s 

management rights in Andes, except in 

certain narrowly defined circumstances; 

(b) that Andrew’s current member on 

the Andes’ board of directors will resign 

within two business days after 

CommScope acquires Andrew and 

Andrew will not exercise its right to 

appoint members to Andes’ board; (c) 

that Andes will remain independent of 

and uninfluenced by defendants during 

the pendency of the ordered divestiture; 

and (d) that competition is maintained 

during the pendency of the ordered 

divestiture. 

Plaintiff and defendants have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APP A. Entry of 

the proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violations 

A. The Defendants and the Proposed 

Transaction 

Defendant CommScope is a Delaware 

corporation with headquarters in 

Hickory, North Carolina. It is a major 

manufacturer and provider of wire and 

cable products. It manufactures, among 

other things, drop cable and, through a 

wholly-owned subsidiary, hardware 

products used in drop cable 

installations. For fiscal year 2006, 

CommScope reported total revenues in 

excess of $1.6 billion, with $550 million 

coming from its broadband business 

segment, which includes cable and 

hardware products sold to cable 

television and telecommunications 

companies. 

Defendant Andrew is a Delaware 

corporation with headquarters in 

Westchester, Illinois. Andrew is a major 

manufacturer and supplier of antenna 

and cable products and products for 

wireless communication systems. For 

fiscal year 2006, it reported total sales 

in excess of $2.1 billion, with 

approximately $1.3 billion coming from 

its antenna and cable business segment. 

Andrew was a manufacturer of drop 

cable until it sold this business in 

March 2007 to Andes and Andes’

subsidiaries, PCT International, Inc. and 

PCT Broadband Communications 

(Yantai) Co. Ltd. (collectively ‘‘Andes’’). 

As a result of two transactions between 

Andrew and Andes, Andrew holds 30 

percent of Andes’ equity, a warrant to 

acquire additional stock of Andes, and 

several Andes’ notes of indebtedness. 

Andrew also holds, under a March 30, 

2007, Amended and Restated Investor 

Rights Agreement (the ‘‘IRA’’), 

numerous governance rights over 

Andes, including rights to designate 

members of Andes’ board of directors. 

When it sold its drop cable business to 

Andes, Andrew licensed Andes to use 

the intellectual property associated with 

Z-Wire, a dry anti-corrosion protected 

drop cable. 

Pursuant to an Agreement and Plan of 

Merger dated June 26, 2007, 

CommScope proposes to acquire 

Andrew in an all-stock transaction 

valued at approximately $2.6 billion. As 

a result of the proposed acquisition, 

CommScope would obtain rights to 

appoint members to the board of 

directors of Andes, a significant 

competitor in the development, 

manufacture and sale of drop cable. In 

addition, it would be able to exert 

substantial control over Andes, given its 

ownership of shares, warrants and debt 

instruments, and its governance rights. 

CommScope’s acquisition of Andrew 

would thus substantially lessen 

competition in the market for drop 

cable, and would create interlocking 

directorates between competing 

companies. This acquisition is the 

subject of the Complaint and proposed 

Final Judgment filed by plaintiff. 

B. Substantial Lessening of Competition 

CommScope’s acquisition of 

Andrew’s holdings in Andes would 

violate section 7 of the Clayton Act 

because the acquisition’s effect may be 

substantially to lessen competition in 

the market for drop cable in the United 

States. 

1. Relevant Product and Geographic 

Markets 

a. Drop Cable Product Market 

Drop cable is 75 ohm coaxial cable 

used by cable television companies to 

connect their transmission systems with 

their customers’ premises and 

equipment inside the customers’

premises. It consists of a plastic jacket, 

metal braid and foil shielding, a 

dielectric layer, and a center conductor. 

Cable television companies typically 

use drop cable in three kinds of 

locations: (1) In the air between outside 

poles and the exteriors of the customers’

premises; (2) underground between 

buried transmission systems and the 

exteriors of the customers’ premises; 

and (3) inside the customers’ premises 

to connect the exterior cables with 

customer-premises devices. Drop cable 

strung between outside poles and the 

exteriors of the customers’ premises 

typically contains an ultraviolet (‘‘UV’’) 

protectant in the jacket and a steel wire, 

called a ‘‘messenger,’’ inside the cable to 

reduce flexing; much of this aerial cable 

also incorporates anti-corrosion 

protection for the metal shielding. Drop 

cable used underground typically is 

‘‘flooded’’ with a gel compound to 

prevent water ingress and corrosion. 

No matter how it is used, all drop 

cable purchased by cable television 

companies is distinguished from other 

75 ohm coaxial cable, which is usually 

called ‘‘commodity’’ cable. Drop cable 

must meet stringent Society of Cable 

Television Engineers (‘‘SCTE’’) and 

other cable television industry 

standards. Those standards address, 

inter alia, durability, uniformity, 

electrical conduction and signal 

shielding. Signal shielding standards 

address the ability of the cable to 

prevent signal leakage outside the cable, 

as well as leakage into the cable of 

extraneous outside signals. Compliance 

with SCTE and other industry standards 

assures cable television companies that 

the drop cable they buy will not require 

frequent replacement, will fit with the 

other components of their systems, can 

readily be handled by a cable system’s 

installers and technicians, and, most 

importantly, will deliver a strong and 

interference-free signal. 

In addition to the above requirements, 

some cable television customers require 

that dry anti-corrosion protection be 

incorporated into much of the drop 

cable they buy. Anti-corrosion 

protection protects the cable’s shielding 

from oxidation, which can result in 

interference and diminished signal 

strength. Two types of anti-corrosion 

coatings are used, gel and dry. Gel 

coated cables are used for almost all 

underground installations. A few cable 

television companies also use them for 

aerial installations. Many cable 

television companies require dry-coated 

cable for all aerial installations. They 

impose this requirement because dry 

cable is easier to work with, does not 

drip from cables onto hardware or 

customers’ property, and costs less. The 

demand for dry anti-corrosion is 


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especially strong among cable television 

companies that operate near the ocean 

or in other areas prone to metal 

oxidation. 

Drop cable is the relevant product 

market, or ‘‘line of commerce,’’ within 

the meaning of section 7 of the Clayton 

Act. Cable television companies, who 

are the purchasers of drop cable, could 

not use other types of coaxial cable. 

Those alternatives do not meet industry 

standards and could fail to provide the 

strong and interference-free signal that 

consumers expect. Because other types 

of coaxial cable would degrade the 

performance of their networks, causing 

cable subscriber dissatisfaction, cable 

television companies would not switch 

from drop cable to other types of cable 

even if faced with a significant price 

increase. 

b. The United States Geographic Market 

The United States is a distinct 

geographic market for the sale of drop 

cable. SCTE and cable television 

industry standards are designed to meet 

the common needs of cable television 

companies operating in the United 

States. Although Andes and 

CommScope manufacture drop cable in 

China for sale in the United States, no 

foreign companies make drop cable that 

conforms to SCTE and United States 

cable television industry standards, and 

no foreign companies sell drop cable to 

cable television companies in the 

United States. 

In addition, cable television 

companies in the United States require 

their suppliers to have a substantial 

presence within the United States, 

including distribution facilities and 

service infrastructures. No foreign 

company maintains such a presence for 

drop cable in the United States. 

Therefore, a small but significant 

increase in the price of drop cable 

would not cause cable television 

companies in the United States to 

substitute purchases from companies 

who operate outside the United States 

in sufficient quantities so as to make 

such a price increase unprofitable. 

Accordingly, the United States is a 

relevant geographic market within the 

meaning of section 7 of the Clayton Act. 

2. Competitive Effects of the Transaction 

a. Anticompetitive Effects 

CommScope’s acquisition of 

Andrew’s interests in Andes would 

substantially lessen competition in the 

market for drop cable in the United 

States. The market for drop cable is 

already highly concentrated. Only four 

companies provide drop cable to cable 

television companies in the United 

States. CommScope is the leading 

manufacturer by a large margin, with a 

market share of between 60 and 70 

percent. Andes is the third largest 

manufacturer, with about a four percent 

market share. Andes is having a 

significant impact in the market because 

of its lower pricing and ability to offer 

drop cable with dry anti-corrosion 

protection. 

The full line of products offered by 

CommScope and Andes make them 

each other’s closest competitors for 

many customers. Of the four 

manufacturers, only CommScope and 

Andes offer drop cable with dry anticorrosion protection. The processes by 

which both firms apply the dry 

chemical coating to the cable’s shielding 

are protected by patent. Many cable 

television firms need or prefer the dry 

anti-corrosion protection offered by 

products in this category, CommScope’s 

Brightwire or Andes’ Z-Wire. 

Competition between Andes and 

CommScope in the sale of drop cable 

has benefited consumers. The prices 

charged by Andrew and Andes 

generally have been five to ten percent 

lower than those charged by 

CommScope and the other 

manufacturers. Those lower prices have 

served as constraints on CommScope’s 

own pricing. Since Andrew’s first 

significant sales several years ago, its 

market share, and later Andes’ market 

share, have steadily increased, as a 

greater number of cable television firms 

have approved their products for 

purchase. 

Andes and CommScope also compete 

with each other in product innovation. 

CommScope developed the first dry 

anti-corrosion protected drop cable 

product, Brightwire. Andrew developed 

Z-Wire specifically to compete for sales 

that would otherwise have gone to 

Brightwire. Andes and CommScope 

have continued to engage in efforts to 

develop new technology. 

If CommScope were allowed to 

acquire Andrew’s holdings in Andes, 

Andes would no longer be an 

independent drop cable competitor. 

CommScope’s substantial ownership in 

Andes would reduce its incentive to 

compete with Andes. In addition, under 

the IRA, CommScope would obtain 

substantial governance rights over 

Andes. Once CommScope completes its 

acquisition of Andrew, Andes’ board of 

directors will have seven members. 

CommScope will then have rights to 

appoint two members of that board, and 

jointly with another Andes’ shareholder, 

to appoint two more. In addition, 

CommScope’s consent will be required 

under the IRA for a range of corporate 

actions by Andes, and CommScope will 

hold extensive rights to access Andes’

confidential business information. 

These governance rights, combined with 

its 30 percent ownership stake and other 

interests in Andes, would give 

CommScope both the incentive and the 

ability to coordinate its activities with 

those of Andes, and/or to undermine 

Andes’ ability to compete on price and 

innovation. 

b. Entry 

Successful entry into the drop cable 

market would not be timely, likely or 

sufficient to offset the anti competitive 

effects resulting from this transaction. 

The drop cable industry has been 

characterized by firms exiting and failed 

entry attempts. Andrew itself began the 

process of entering the market in 1997, 

and only now, ten years later, has its 

successor, Andes, achieved a four 

percent market share. 

Timely entry sufficient to replace the 

market impact of Andes would be 

difficult for several reasons. Any new 

manufacturer would have to develop a 

product line and set up a manufacturing 

facility, submit sample products for the 

extensive laboratory and field tests 

required by all substantial cable 

television firms, and then undergo the 

lengthy process of attempting to sell the 

products to those companies. Andes’

success is due in part to its ability to 

offer a full line of drop cable products. 

A new entrant could not duplicate that 

success unless it could offer drop cable 

with dry anti-corrosion protection. The 

Brightwire and Z-Wire products are 

both protected by patent. Development 

of a new process which does not 

infringe on those patents would likely 

be time-consuming and difficult. 

C. Interlocking Directorates 

CommScope and Andes compete in 

the manufacture and sale of both drop 

cable and hardware products used in 

drop cable installations. Each company 

and each company’s sales of competing 

products meet all the threshold tests of 

section 8 of the Clayton Act. Following 

the acquisition, as initially structured, 

CommScope would have the right under 

the IRA to appoint two members of 

Andes’ seven member board of 

directors, who would act as its agents on 

the Andes board. In addition, 

CommScope would have the right to 

select, jointly with another Andes 

shareholder, two more members of the 

Andes board. CommScope, a person 

within the meaning of section 8, also 

nominates the members of its own board 

of directors. Thus, CommScope’s 

participation through its representatives 

on both its own board of directors and 

Andes’ board of directors would create 


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interlocking directorates in violation of 

section 8. 

III. Explanation of the Proposed Final 

Judgement 

The proposed Final Judgment will 

eliminate both the anticompetitive 

effects that would result from 

CommScope’s acquisition of Andrew’s 

holdings in Andes, and CommScope’s 

ability to appoint members of Andes’

board of directors. With respect to 

section 7, the proposed Final Judgment 

requires defendants, within 90 days 

after the filing of the Complaint, or five 

days after notice of the entry of the Final 

Judgment by the Court, whichever is 

later, to divest the Andes Holdings, 

including Andrew’s entire ownership 

interest in Andes, the intellectual 

property concerning the Z-Wire 

product, as well as all notes of 

indebtedness in favor of Andrew by 

Andes and warrants to acquire 

additional stock of Andes. These 

holdings must be divested to an acquirer 

that in the United States’ sole judgment 

has the intent and capability of 

investing in Andes in such a manner as 

to support the continued competitive 

operations of its drop cable business. 

Defendants must take all reasonable 

steps necessary to accomplish the 

divestiture quickly and shall cooperate 

with prospective acquirers. With respect 

to section 8, defendants, under the 

proposed Final Judgment, would no 

longer have any rights under the IRA, 

including the rights to appoint members 

of Andes’ board. 

Although Andes holds a license from 

Andrew for the Z-Wire intellectual 

property, the proposed Final Judgment 

requires the defendants to divest that 

intellectual property, subject to Andes’

continuing license, to the acquirer. This 

divestiture will ensure that CommScope 

does not gain control over a technology 

that is vital to Andes’ ability to compete. 

A. Timing of Divestiture 

In antitrust cases involving mergers or 

joint ventures in which the United 

States seeks a divestiture remedy, it 

requires completion of the divestiture 

within the shortest time period 

reasonable under the circumstances. 

The proposed Final Judgment in this 

case requires, in section IV(A), 

divestiture of the Andes Holdings 

within 90 days after the filing of the 

Complaint, or five days after notice of 

the entry of the Final Judgment by the 

Court, whichever is later. Plaintiff in its 

sole discretion may extend the time 

period for divestiture by up to 60 days. 

In this matter the proposed Final 

Judgment also provides for an 

additional extension in certain 

circumstances. This extension will 

preserve the abilities of Andes and 

another Andes shareholder to exercise 

their rights of first refusal under the 

IRA. If the defendants find an acquirer 

approved by plaintiff within the initial 

period for divestiture, and an agreement 

with the acquirer has been reached and 

approved by the plaintiff, and 

defendants have given written notice of 

their intent to sell as required by the 

IRA, the time for completing the 

divestiture will automatically be 

extended in order to allow defendants to 

comply with the IRA’s right of first 

refusal provision. The period of this 

extension may not exceed five days past 

the last date on which the right of first 

refusal provision continues to be 

applicable. 

The divestiture timing provisions of 

the proposed Final Judgment will 

ensure that the divestiture are carried 

out in a timely manner, and at the same 

time will permit defendants an adequate 

opportunity to accomplish the 

divestiture consistent with their 

obligations under the IRA. Even if the 

Andes Holdings have not been divested 

upon consummation of the transaction, 

there should be no adverse impact on 

competition given the limited duration 

of the period of common ownership and 

the detailed requirements of the Hold 

Separate Stipulation and Order. 

B. Use of a Trustee 

In the event that the defendants do 

not accomplish the divestiture within 

the periods prescribed in the proposed 

Final Judgment, the Final Judgment 

provides that the Court will appoint a 

trustee selected by plaintiff to effect the 

divestiture. As part of this divestiture, 

defendants must relinquish any direct 

or indirect financial ownership interests 

and any direct or indirect role in 

management or participation in control 

of Andes Holdings. 

Section V details the requirements for 

the establishment of the divestiture 

trust, the selection and compensation of 

the trustee, and the responsibilities of 

the trustee in connection with the 

divestiture. The trustee will have the 

sole responsibility, under section V(B), 

for the divestiture of the Andes 

Holdings. The trustee has the authority 

to accomplish the divestiture at the 

earliest possible time and ‘‘at such price 

and on such terms as are then 

obtainable upon reasonable effort by the 

trustee.’’

The proposed Final Judgment 

provides that defendants will pay all 

costs and expenses of the trustee. The 

trustee’s commission will be structured, 

under section V(D) of the proposed 

Final Judgment, so as to provide an 

incentive for the trustee based on the 

price and terms obtained and the speed 

with which the divestiture is 

accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and plaintiff setting forth his 

or her efforts to accomplish the 

divestiture. At the end of six months, if 

the divestiture has not been 

accomplished, the trustee and plaintiff 

will make recommendations to the 

Court, which shall enter such orders as 

appropriate in order to carry out the 

purpose of the Final Judgment, 

including extending the trust or term of 

the trustee’s appointment. 

C. The Hold Separate Stipulation and 

Order 

The Hold Separate Stipulation and 

Order, filed at the same time as the 

Complaint, ensures that, pending 

divestiture of the Andes Holdings, 

defendants will take no steps to limit 

Andes’ ability to operate as a 

competitively independent, 

economically viable, and ongoing 

business concern, that defendants do 

not influence Andes’ business, and that 

competition is maintained. The Hold 

Separate Stipulation and Order bars the 

defendants from: 

1. Voting or permitting to be voted 

any Andes shares that defendants own, 

or using or attempting to use any 

ownership interest in Andes to exert 

any influence over Andes, except as 

necessary to carry out defendants’

obligations under the Hold Separate 

Stipulation and Order and the Final 

Judgment; 

2. Electing, nominating, appointing or 

otherwise designating or participating as 

officers or directors; 

3. Participating in any meetings or 

committees of the Andes Board of 

Directors; 

4. Communicating to or receiving 

from any officer, director, manager, 

employee, or agent of Andes any 

nonpublic information regarding any 

aspect of Andes’ business, except the 

information specified in sections V(A) 

and V(B) of the Hold Separate 

Stipulation and Order and sections 

IV(C) and VIII(B) of the proposed Final 

Judgment; and 

5. Exercising certain governance 

rights under the IRA except as specified 

in section V(B) of the Hold Separate 

Stipulation and Order. 

In addition, the Hold Separate 

Stipulation and Order requires 

Andrew’s current representative on 

Andes’ board to resign and bars 

defendants from acquiring any 

additional shares of Andes except as 

specified in section V(D) of the Hold 


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1The 2004 amendments substituted ‘‘shall’’ for 

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

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); 

see also SBC Commc’ns, 489 F. Supp. 2d at 11 

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

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

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

limited to approving or disapproving the consent 

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

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

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

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

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

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

Separate Stipulation and Order. It also 

requires defendants to continue to 

provide Andes certain support services 

until the end of February 2008. 

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 

Plaintiff and defendants have 

stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that plaintiff has 

not withdrawn its consent. The APPA 

conditions entry upon the Court’s 

determination that the proposed Final 

Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to plaintiff written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within sixty (60) days of 

the date of publication of this 

Competitive Impact Statement in the 

Federal Register or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement; whichever is later. All 

comments received during this period 

will be considered by the United States 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of 

plaintiff will be filed with the Court and 

published in the Federal Register. 

Written comments should be 

submitted to: Nancy M. Goodman, 

Chief, Telecommunications and Media 

Enforcement Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 8000, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

Plaintiff considered, as an alternative 

to the proposed Final Judgment, a full 

trial on the merits against defendants. 

Plaintiff could have continued the 

litigation and sought preliminary and 

permanent injunctions against 

CommScope’s acquisition of Andrew. 

Plaintiff is satisfied, however, that the 

divestiture of the Andes Holdings 

described in the proposed Final 

Judgment will eliminate the possibility 

of interlocking directorates and preserve 

competition in the development, 

manufacture and sale of drop cable in 

the relevant market identified in the 

Complaint. Thus, the proposed Final 

Judgment would achieve all or 

substantially all of the relief the United 

States would have obtained through 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits of the Complaint. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a sixtyday comment period, after which the 

Court shall determine whether entry of 

the proposed Final Judgment ‘‘is in the 

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

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) the competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) the impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

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

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one, as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); see generally United 

States v. SBC Commc’ns, Inc., 489 F. 

Supp. 2d 1 (D.D.C. 2007) (assessing 

public interest standard under the 

Tunney Act).1

As the United States Court of Appeals 

for the District of Columbia Circuit has 

held, under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

decree, a court may not ‘‘engage in an 

unrestricted evaluation of what relief 

would best serve the public.’’ United 

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

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

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

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

at 1460–62; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001). 

Courts have held that: 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2 In 

determining whether a proposed 

settlement is in the public interest, a 

district court ‘‘must accord deference to 

the government’s predictions about the 

efficacy of its remedies, and may not 


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3See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); S. Rep. No. 93–298, 93d Cong., 

1st Sess., at 6 (1973) (‘‘Where the public interest can 

be meaningfully evaluated simply on the basis of 

briefs and oral arguments, that is the approach that 

should be utilized.’’); United States v. Mid-Am. 

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

at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of 

corrupt failure of the government to discharge its 

duty, the Court, in making its public interest 

finding, should * * * carefully consider the 

explanations of the government in the competitive 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’). 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also Microsoft, 56 F.3d at 1461 (noting 

the need for courts to be ‘‘deferential to 

the government’s predictions as to the 

effect of the proposed remedies’’); 

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

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’ prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[A] proposed decree 

must be approved even if it falls short 

of the remedy the court would impose 

on its own, as long as it falls within the 

range of acceptability or is ‘within the 

reaches of public interest.’ ’’ United 

States v. Am. Tel. & Tel. Co., 552 F. 

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

omitted) (quoting United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975)), aff’d sub nom. Maryland 

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

see also United States v. Alcan 

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

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

decree even though the court would 

have imposed a greater remedy). To 

meet this standard, the United States 

‘‘need only provide a factual basis for 

concluding that the settlements are 

reasonably adequate remedies for the 

alleged harms.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17. 

Moreover, the court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

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

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. As this Court 

recently confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments, Congress 

made clear its intent to preserve the 

practical benefits of utilizing consent 

decrees in antitrust enforcement, adding 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2). The 

language wrote into the statute what 

Congress intended when it enacted the 

Tunney Act in 1974, as Senator Tunney 

explained: ‘‘[t]he court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’

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

of Senator Tunney). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains 

sharply proscribed by precedent and the 

nature of Tunney Act proceedings.’’

SBC Commc’ns, 489 F. Supp. 2d at 11.3

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by plaintiff 

United States in formulating the 

proposed Final Judgment. 

Dated: December 6, 2007 

Respectfully submitted, 

/s/ lllllllllllllllllll

Alvin H. Chu 

Michael Hirrel (DC Bar No. 940353) 

Brent Marshall 

Peter Gray 

Attorneys, Telecommunications & Media 

Enforcement Section Antitrust Division 

U.S. Department of Justice 

City Center Building 

1401 H Street, NW., Suite 8000 

Washington, DC 20530 

(202) 514–5621 

Facsimile: (202) 514–6381 

[FR Doc. 07–6125 Filed 12–19–07; 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—Petroleum Environmental 

Research Forum Project No. 2004–06 

Notice is hereby given that, on 

September 4, 2007, pursuant to Section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301, et seq. (‘‘the Act’’), 

Petroleum Environmental Research 

Forum (‘‘PERF’’) Project No. 2004–06 

has filed written notifications 

simultaneously with the Attorney 

General and the Federal Trade 

Commission disclosing changes in its 

membership. 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, ExxonMobil Research and 

Engineering Company, Fairfax, VA; and 

Shell Global Solutions (US) Inc., 

Houston, 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 PERF Project 

No. 2004–06 intends to file additional 

written notifications disclosing all 

change in membership. 

On March 15, 2007, PERF Project No. 

2004–06 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 November 7, 

2007 (72 FR 62867). 

Patricia A. Brink, 

Deputy Director of Operations, Antitrust 

Division. 

[FR Doc. 07–6122 Filed 12–19–07; 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—PXI Systems Alliance, 

Inc. 

Notice is hereby given that, on 

October 29, 2007, pursuant to section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’, PXI 

Systems Alliance, Inc. has filed written 

notifications simultaneously with the 

Attorney General and the Federal Trade 

Commission disclosing changes in its 


sroberts on PROD1PC70 with NOTICES