[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Notices]
[Pages 9847-9852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4280]



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FEDERAL TRADE COMMISSION
[File No. 941 0132]


Tele-Communication, Inc.; Proposed Consent Agreement With 
Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair acts and practices and unfair methods of competition, this 
consent agreement, accepted subject to final Commission approval, would 
permit, among other things, Tele-Communication, Inc. (TCI) to complete 
its acquisition of TeleCable, on the condition that it divest either 
its own Columbus cable TV assets, or those of TeleCable, within twelve 
months. If the divestitures were not completed on time, the consent 
agreement would permit the Commission to appoint a trustee to complete 
the transaction. In addition, TCI, for ten years, would be required to 
obtain Commission approval before acquiring any cable TV system in the 
Columbus, GA., area.

DATES: Comments must be received on or before April 24, 1995.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:
Ronald Rowe, FTC/S-2105, Washington, DC 20580, (202) 326-2610.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the following consent agreement containing a consent order 
to cease and desist, having been filed with and accepted, subject to 
final approval, by the Commission, has been placed on the public record 
for a period of sixty (60) days. Public comment is invited. Such 
comments or views will be considered by the Commission and will be 
available for inspection and copying at its principal office in 
accordance with Section 4.9(b)(6)(ii) of the Commission's rules of 
Practice (16 CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

    The Federal Trade Commission (``Commission''), having initiated an 
investigation of the proposed acquisition of the common stock of 
TeleCable Corporation by Tele-Communications, Inc. and the proposed 
merger of TeleCable Corporation into TCI Communications, Inc., an 
entity within Tele-Communications, Inc., and it now appearing that 
Tele-Communications, Inc., hereinafter sometimes referred to as 
``proposed respondent,'' is willing to enter into an agreement 
containing an order to divest certain assets, and to cease and desist 
from making certain acquisitions, and providing for other relief:
    It is hereby agreed by and between proposed respondent, by its duly 
authorized officer and attorney, and counsel for the Commission that:
    1. Proposed respondent Tele-Communications, Inc. is a corporation 
organized, existing, and doing business under and by virtue of the laws 
of the State of Delaware, with its principal office and place of 
business at 5619 DTC Parkway, Englewood, Colorado 80111.
    2. Proposed respondent admits all the jurisdictional facts set 
forth in the draft of complaint.
    3. Proposed respondent waives:
    a. any further procedural steps;
    b. the requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    c. all rights to seek judicial review or otherwise to challenge or 
contest the validity of the order entered pursuant to this agreement; 
and
    d. any claim under the Equal Access to Justice Act.
    4. This agreement shall not become part of the public record of the 
proceeding unless and until it is accepted by the Commission. If this 
agreement is accepted by the Commission it, together with the draft of 
complaint contemplated thereby, will be placed on the public record for 
a period of sixty (60) days and information in respect thereto publicly 
released. The Commission thereafter may either withdraw its acceptance 
of this agreement and so notify the proposed respondent, in which event 
it will take such action as it may consider appropriate, or issue and 
serve its complaint (in such form as the circumstances may require) and 
decision, in disposition of the proceeding.
    5. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondent that the law has been 
violated as alleged in the draft of complaint, or that the facts as 
alleged in the draft complaint, other than jurisdictional facts, are 
true.
    6. This agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
Rules, the Commission may, without further notice to the proposed 
respondent, (1) issue its complaint corresponding in form and substance 
with the draft of complaint and its decision containing the following 
order to divest and to cease and desist in disposition of the 
proceeding and (2) make information public with respect thereto. When 
so entered, the order to divest and to cease and desist shall have the 
same force and effect and may be altered, modified or set aside in the 
same manner and within the same time provided by statute for other 
orders. The order shall become final upon service. Delivery by the U.S. 
Postal Service of the complaint and decision containing the agreed-to 
order to proposed respondent's address as [[Page 9848]] stated in this 
agreement shall constitute service. Proposed respondent waives any 
right it may have to any other manner of service. The complaint may be 
used in construing the terms of the order, and no agreement, 
understanding, representation, or interpretation not contained in the 
order or the agreement may be used to vary or contradict the terms of 
the order.
    7. Proposed respondent has read the proposed complaint and order 
contemplated hereby. Proposed respondent understands that once the 
order has been issued, it will be required to file one or more 
compliance reports showing that it has fully complied with the order. 
Proposed respondent further understands that it may be liable for civil 
penalties in the amount provided by law for each violation of the order 
after it becomes final.

Order

I
    It is ordered that, as used in this order, the following 
definitions shall apply:
    A. ``Respondent'' or ``TCI'' means (1) Tele-Communications, Inc. 
and its predecessors, successors and assigns, subsidiaries, and 
divisions, and their respective directors, officers, agents, and 
representatives; and (2) partnerships, joint ventures, groups and 
affiliates that Tele-Communications, Inc. controls, directly or 
indirectly, and their successors and assigns, and their respective 
directors, officers, agents, and representatives.
    B. ``Control'' means (i) the ability or right, contractual or 
otherwise, to direct the management decisions of an entity, or (ii) an 
ownership interest of 50% or greater unless a person or entity other 
than Respondent has the right to direct the management decisions of 
such entity.
    C. ``Commission'' means the Federal Trade Commission.
    D. ``Columbus Cable Television System Assets'' means either TCI's 
Cable Television System or TeleCable's Cable Television System now 
operating in Muscogee and Harris Counties, Georgia, including all 
properties, privileges, rights, interests and claims, real and 
personal, tangible and intangible, of every type and description that 
are owned, leased, held or used principally in the provision of Cable 
Television Service in Muscogee and Harris Counties, including the 
governmental permits, franchises, intangibles, equipment and real 
property.
    E. ``Designated Columbus Cable Television System'' means the Cable 
Television System chosen by TCI pursuant to Paragraph III B. 2. or if 
TCI fails to designate a Cable Television System pursuant to, and 
within the time limits of, Paragraph III B. 2., the Columbus Cable 
Television System Assets.
    F. ``Cable Television Service'' means the delivery of various video 
entertainment and informational programming via a cable television 
system.
    G. ``Cable Television System'' means a facility, consisting of a 
set of closed transmission paths and associated signal generation, 
reception, and control equipment that is designed to provide cable 
television service, which includes video programming and which is 
provided to multiple subscribers within a community.
    H. ``The Relevant Geographic Area'' means the counties of Muscogee 
and Harris in the State of Georgia.
    I. ``Competitiveness, viability and marketability'' of the Columbus 
Cable Television System Assets means the Respondent shall continue the 
operation of TCI's and TeleCable's Cable Television Systems in the 
ordinary course of business without material change or alteration that 
would adversely affect the value or goodwill of such Cable Television 
Systems and the Columbus Cable Television System Assets.
II
    It is further ordered that:
    A. Respondent shall divest, absolutely and in good faith, within 
twelve months of the date this order becomes final, one of the Cable 
Television Systems constituting the Columbus Cable Television System 
Assets. Respondent shall also divest such additional ancillary assets 
and businesses and effect such arrangements as are necessary to assure 
the competitiveness, viability and marketability of the Columbus Cable 
Television System Assets. Respondent shall undertake its best efforts 
to facilitate any governmental approvals required to effect divestiture 
of the Columbus Cable Television System Assets and their continued use 
in Cable Television Service in the Relevant Geographic Area. To ensure 
the availability of programming to the divested Columbus Cable 
Television System Assets, Respondent shall waive any exclusive rights 
to distribute programming by means of Cable Television Systems in the 
Relevant Geographic Area.
    B. Respondent shall divest the Columbus Cable Television System 
Assets only to an acquirer or acquirers that receive the prior approval 
of the Commission and only in a manner that receives the prior approval 
of the Commission. The purpose of the divestiture of the Columbus Cable 
Television System Assets is to ensure the continued use of the Columbus 
Cable Television System Assets as an ongoing, viable deliverer of Cable 
Television Service in the Relevant Geographic Area, and to remedy the 
lessening of competition resulting from the proposed acquisition of 
TeleCable Corporation by TCI as alleged in the Commission's complaint.
    C. Pending divestiture of the Columbus Cable Television System 
Assets, respondent shall take such actions as are necessary to maintain 
the competitiveness, viability and marketability of the Columbus Cable 
Television System Assets and to prevent the destruction, removal, 
wasting, deterioration, or impairment of any of the Columbus Cable 
Television System Assets except for ordinary wear and tear.
III
    It is further ordered that:
    A. If TCI has not divested, absolutely and in good faith and with 
the Commission's prior approval, the Columbus Cable Television System 
Assets within twelve months of the date this order becomes final, the 
Commission may appoint a trustee to divest the Columbus Cable 
Television System Assets, provided, however, that if the Commission has 
not approved a proposed divestiture within 120 days of the date the 
application for such divestiture has been put on the public record, the 
running of the divestiture period shall be tolled until the Commission 
approves or disapproves the divestiture. In the event that the 
Commission or the Attorney General brings an action pursuant to 
Sec. 5(l) of the Federal Trade Commission Act, 15 U.S.C. Sec. 45(l), or 
any other statute enforced by the Commission, TCI shall consent to the 
appointment of a trustee in such action. Neither the appointment of a 
trustee nor a decision not to appoint a trustee under this Paragraph 
shall preclude the Commission or the Attorney General from seeking 
civil penalties or any other relief available to it, including a court-
appointed trustee, pursuant to Sec. 5(l) of the Federal Trade 
Commission Act, or any other statute enforced by the Commission, for 
any failure by the respondent to comply with this order.
    B. If a trustee is appointed by the Commission or a court pursuant 
to Paragraph III A. of this order, [[Page 9849]] respondent shall 
consent to the following terms and conditions regarding the trustee's 
powers, duties, authority, and responsibilities:
    1. The Commission shall select the trustee, subject to the consent 
of respondent, which consent shall not be unreasonably withheld. The 
trustee shall be a person with experience and expertise in acquisitions 
and divestitures in the cable television industry. If respondent has 
not opposed, in writing, including the reasons for opposing, the 
selection of any proposed trustee within ten (10) days after notice by 
the staff of the Commission to respondent of the identity of any 
proposed trustee, respondent shall be deemed to have consented to the 
selection of the proposed trustee.
    2. Within ten (10) days after appointment of the trustee, 
respondent shall (1) execute a trust agreement that, subject to the 
prior approval of the Commission and, in the case of a court-appointed 
trustee, of the court, transfers to the trustee all rights and powers 
necessary to permit the trustee to effect the divestiture required by 
this order; and (2) notify the trustee in writing whether TCI chooses 
to divest the TCI Columbus Cable Television System or the TeleCable 
Columbus Cable Television System; provided that if TCI fails to make 
this designation within the specified time period, the trustee is 
authorized to divest either the TCI or TeleCable Columbus Cable 
Television System.
    3. Subject to the prior approval of the Commission, the trustee 
shall have the exclusive power and authority to divest the Designated 
Columbus Cable Television System Assets.
    4. The trustee shall have twelve (12) months from the date the 
Commission approves the trust agreement described in Paragraph III B. 
2. to accomplish the divestiture, which shall be subject to the prior 
approval of the Commission. If, however, at the end of the twelve-month 
period, the trustee has submitted a plan of divestiture or believes 
that divestiture can be achieved within a reasonable time, the 
divestiture period may be extended by the Commission, or, in the case 
of a court-appointed trustee, by the court; provided, however, the 
Commission may extend this period only two (2) times.
    5. The trustee shall have full and complete access to the 
personnel, books, records and facilities related to the Designated 
Columbus Cable Television System Assets or to any other relevant 
information as the trustee may reasonably request. Respondent shall 
develop such financial or other information as such trustee may 
reasonably request and shall cooperate with the trustee. Respondent 
shall take no action to interfere with or impede the trustee's 
accomplishment of the divestitures. Any delays in divestiture caused by 
respondent shall extend the time for divestiture under this Paragraph 
in an amount equal to the delay, as determined by the Commission or, 
for a court-appointed trustee, by the court.
    6. The trustee shall use his or her best efforts to negotiate the 
most favorable price and terms available in each contract that is 
submitted to the Commission, subject to respondent's absolute and 
unconditional obligation to divest at no minimum price. The divestiture 
shall be made in the manner and to the acquirer or acquirers as set out 
in Paragraph II of this order; provided, however, if the trustee 
receives bona fide offers from more than one acquiring entity, and if 
the Commission determines to approve more than one such acquiring 
entity, the trustee shall divest to the acquiring entity or entities 
selected by respondent from among those approved by the Commission.
    7. The trustee shall serve, without bond or other security, at the 
cost and expense of respondent, on such reasonable and customary terms 
and conditions as the Commission or a court may set. The trustee shall 
have the authority to employ, at the cost and expense of respondent, 
such consultants, accountants, attorneys, investment bankers, business 
brokers, appraisers, and other representatives and assistants as are 
necessary to carry out the trustee's duties and responsibilities. The 
trustee shall account for all monies derived from the divestiture and 
all expenses incurred. After approval by the Commission and, in the 
case of a court-appointed trustee, by the court, of the account of the 
trustee, including fees for his or her services, all remaining monies 
shall be paid at the direction of the respondent, and the trustee's 
power shall be terminated. The trustee's compensation shall be based at 
least in significant part on a commission arrangement contingent on the 
trustee's divesting the Designated Columbus Cable Television System 
Assets.
    8. Respondent shall indemnify the trustee and hold the trustee 
harmless against any losses, claims, damages, liabilities, or expenses 
arising out of, or in connection with, the performance of the trustee's 
duties, including all reasonable fees of counsel and other expenses 
incurred in connection with the preparation for, or defense of any 
claim, whether or not resulting in any liability, except to the extent 
that such liabilities, losses, damages, claims, or expenses result from 
misfeasance, gross negligence, willful or wanton acts, or bad faith by 
the trustee.
    9. If the trustee ceases to act or fails to act diligently, a 
substitute trustee shall be appointed in the same manner as provided in 
Paragraph III A. of this order.
    10. The Commission or, in the case of a court-appointed trustee, 
the court, may on its own initiative or at the request of the trustee 
issue such additional orders or directions as may be necessary or 
appropriate to accomplish the divestiture required by this order.
    11. The trustee shall have no obligation or authority to operate or 
maintain the Designated Columbus Cable Television System Assets.
    12. The trustee shall report in writing to respondent and the 
Commission every sixty (60) days concerning the trustee's efforts to 
accomplish divestiture.
IV
    It is further ordered that respondent shall comply with all terms 
of the Hold Separate Agreement, attached to this Order and made a part 
hereof as Appendix I. The Hold Separate Agreement shall continue in 
effect until such time as the Columbus Cable Television System Assets 
shall have been divested as required by this order.
V
    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, respondent shall not, without the prior 
approval of the Commission, directly or indirectly:
    A. Acquire any stock, share capital, equity, or other interest in 
any concern, corporate or non-corporate, engaged in at the time of such 
acquisition, or within the two years preceding such acquisition engage 
in Cable Television Service within the Relevant Geographic Area; or
    B. Acquire any assets used for or previously used for (and still 
suitable for use for) Cable Television Service within the Relevant 
Geographic Area.
    Provided, however, that this Paragraph V shall not apply to the 
acquisition of products or services in the ordinary course of business; 
and provided further, that this Paragraph V shall not apply to the 
acquisition of any interest in a concern that is not at the time of the 
acquisition engaged in Cable Television Service within the Relevant 
Geographic Area due to the sale within the preceding two years of all 
assets used for Cable Television Service within [[Page 9850]] the 
Relevant Geographic Area to another party who intended to operate said 
assets for Cable Television Service within the Relevant Geographic 
Area.
VI
    It is further ordered that:
    A. Within sixty (60) days after the date this order becomes final 
and every sixty (60) days thereafter until respondent has fully 
complied with the provisions of Paragraphs II and III of this order, 
respondent shall submit to the Commission a verified written report 
setting forth in detail the manner and form in which it intends to 
comply, is complying, and has complied with Paragraphs II and III of 
this order. Respondent shall include in its compliance reports, among 
other things that are required from time to time, a full description of 
the efforts being made to comply with Paragraphs II and III of the 
order, including a description of all substantive contacts or 
negotiations for the divestiture and the identity of all parties 
contacted. Respondent shall include in its compliance reports copies of 
all written communications to and from such parties, all internal 
memoranda, and all reports and recommendations concerning divestiture.
    B. One (1) year from the date this order becomes final, annually 
for the next nine (9) years on the anniversary of the date this order 
becomes final, and at other times as the Commission may require, 
respondent shall file a verified written report with the Commission 
setting forth in detail the manner and form in which it has complied 
and is complying with this order.
VII
    It is further ordered that respondent shall notify the Commission 
at least thirty (30) days prior to any proposed change in the 
respondent such as dissolution, assignment, sale resulting in the 
emergence of a successor corporation, or the creation or dissolution of 
subsidiaries or any other change that affect compliance obligations 
arising out of the order.
VIII
    It is further ordered that, for the purpose of determining or 
securing compliance with this order, and subject to any legally 
recognized privilege, upon written request and on reasonable notice to 
respondent, respondent shall permit any duly authorized representative 
of the Commission:
    A. Access, during office hours and in the presence of counsel, to 
inspect and copy all books, ledgers, accounts, correspondence, 
memoranda and other records and documents in the possession or under 
the control of respondent relating to any matters contained in this 
order; and
    B. Upon five days' notice to respondent and without restraint of 
interference from it, to interview officers, directors, or employees of 
respondent, who may have counsel present, relating to any matters 
contained in this order.

Agreement to Hold Separate

    This Agreement To Hold Separate (``Agreement'') is by and between 
Tele-Communications, Inc. (``respondent'' or ``TCI''), a corporation 
organized, existing, and doing business under and by virtue of the laws 
of the State of Delaware, with its principal office and place of 
business at 5619 DTC Parkway, Englewood, Colorado 80111; and the 
Federal Trade Commission (``Commission''), an independent agency of the 
United States Government, established under the Federal Trade 
Commission Act of 1914, 15 U.S.C. Sec. 41, et seq.
    Whereas, respondent entered into an agreement with TeleCable 
Corporation (``TeleCable''), a Virginia corporation, whereby respondent 
will acquire the stock of TeleCable and merge TeleCable into TCI 
Communications, Inc., an entity within TCI (hereinafter the 
``Acquisition''); and
    Whereas, the Commission is now investigating the Acquisition to 
determine if it would violate any of the statutes enforced by the 
Commission; and
    Whereas, if the Commission accepts the attached Agreement 
Containing Consent Order (``Consent Agreement''), which would require 
the divestiture of either the TCI or TeleCable Cable Television System 
Assets in Columbus, Georgia, the Commission must place the Consent 
Agreement on the public record for a period of at least sixty (60) days 
and may subsequently withdraw such acceptance pursuant to the 
provisions of Section 2.34 of the Commission's Rules; and
    Whereas, the Commission is concerned that if an understanding is 
not reached, preserving the status quo ante of the TeleCable Columbus 
Cable Television System Assets during the period prior to the final 
acceptance and issuance of the Consent Agreement by the Commission 
(after the 60-day public comment period), divestiture resulting from 
any proceeding challenging the legality of the Acquisition might not be 
possible, or might be less than an effective remedy; and
    Whereas, the Commission is concerned that if the Acquisition is 
consummated, it will be necessary to preserve the Commission's ability 
to require the divestiture of the assets described in Paragraph II of 
the Consent Agreement and the Commission's right to have the TeleCable 
Columbus Cable Television System Assets continue as a viable 
independent entity; and
    Whereas, the purpose of this Agreement and the Consent Agreement is 
to:
    (i) preserve the TeleCable Columbus Cable Television System Assets 
as a viable independent cable television system pending possible 
divestiture, and
    (ii) remedy any anticompetitive effects of the Acquisition; and
    Whereas, respondent's entering into this Agreement shall in no way 
be construed as an admission by respondent that the Acquisition is 
illegal; and
    Whereas, respondent understands that no act or transaction 
contemplated by this Agreement shall be deemed immune or exempt from 
the provisions of the antitrust laws or the Federal Trade Commission 
Act by reason of anything contained in this Agreement.
    Now, therefore, the parties agree, upon understanding that the 
Commission has not yet determined whether the Acquisition will be 
challenged, and in consideration of the Commission's agreement that, 
unless the Commission determines to reject the Consent Agreement, it 
will not seek further relief from respondent with respect to the 
Acquisition, except that the Commission may exercise any and all rights 
to enforce this Agreement and the Consent Agreement to which it is 
annexed and made a part thereof, and in the event the required 
divestiture is not accomplished, to appoint a trustee to seek 
divestiture pursuant to the Consent Agreement and to seek civil 
penalties or a court-appointed trustee or other equitable relief, as 
follows:
    1. Respondent agrees to execute and be bound by the attached 
Consent Agreement.
    2. Respondent agrees that from the date this Agreement is accepted 
until the earliest of the dates listed in subparagraphs 2.a-2.b, it 
will comply with the provisions of paragraph 3 of this Agreement:
    a. three (3) business days after the Commission withdraws its 
acceptance of the Consent Agreement pursuant to the provisions of 
Section 2.34 of the Commission's Rules; or
    b. the day after the divestiture required by the Consent Agreement 
has been completed.
    3. To ensure the independence and viability of the TeleCable 
Columbus [[Page 9851]] Cable Television System Assets and to assure 
that no competitive information is exchanged between the TeleCable 
Columbus Cable Television System and the TCI Columbus Cable Television 
System, TCI shall operate the TeleCable Columbus Cable Television 
System separate and apart on the following terms and conditions:
    a. To the maximum extent possible, TCI will retain current 
TeleCable Columbus Cable Television System management and employees 
(``the management team'') to manage and maintain the TeleCable Columbus 
Cable Television System. The individuals on the management team shall 
manage the TeleCable Columbus Cable Television System independently of 
the management of TCI's other businesses, including the TCI Columbus 
Cable Television System. The individuals on the management team shall 
not be involved in any way in the operation or management of any other 
TCI Cable Television System. If any member of the management team is 
unable or unwilling to continue to serve in his or her current position 
(or becomes unable to do so during the term of this Agreement) that 
position will be filled by an individual not involved in any way in the 
operation or management of any other TCI Cable Television System.
    b. The management team, in its capacity as such, shall report 
directly and exclusively to an individual to be designated by TCI who 
has no direct responsibilities for Cable Television System operations 
and who is competent to assure the continued viability and 
competitiveness of the TeleCable Columbus Cable Television System 
(``TCI Contact'').
    c. TCI shall not exercise direction or control over, or influence 
directly or indirectly the management team or any of its activities 
relating to the operations of the TeleCable Columbus Cable Television 
System; provided, however, that TCI may exercise such direction and 
control over the management team and the TeleCable Columbus Cable 
Television System Assets as is necessary to ensure compliance with this 
Agreement and with the Consent Agreement and with all applicable laws.
    d. TCI shall maintain the marketability, viability, and 
competitiveness of the TeleCable Columbus Cable Television System 
assets and shall not sell, transfer, encumber (other than in the 
ordinary course of business), or otherwise impair their marketability, 
viability or competitiveness.
    e. Except for the TCI Contact and the management team, TCI shall 
not permit any other TCI employee, officer, or director to be involved 
in the management of the TeleCable Columbus Cable Television System; 
provided, however, that TCI employees involved in engineering, 
construction, customer service, data processing, training, human 
resources, finance, legal services, tax, accounting, insurance, 
internal audit, payroll, programming, purchasing, real estate, risk 
management, telephony, compliance with FCC regulations, contract 
administration, and similar services (``support service employees'') 
may provide such services to the TeleCable Columbus Cable Television 
System.
    f. Except as required by law, and except to the extent that 
necessary information is exchanged in the course of evaluating the 
acquisition, defending investigations or litigation, or negotiating 
agreements to divest, TCI, other than the TCI Contact, the management 
team and support service employees involved in the TeleCable Columbus 
Cable Television System business, shall not receive or have access to, 
or the use of any material confidential information about the TeleCable 
Columbus Cable Television System. (``Material Confidential 
information,'' as used herein, means competitively sensitive or 
proprietary information not otherwise known to TCI from sources other 
than the TCI Contact, the management team involved in the TeleCable 
Columbus Cable Television System, or the support service employees.)
    g. The management team shall serve at the cost and expense of TCI. 
TCI shall indemnify the management team against any losses or claims of 
any kind that might arise out of his or her involvement under this 
Agreement, except to the extent that such losses or claims result from 
misfeasance, gross negligence, willful or wanton acts, or bad faith by 
the management team.
    h. If any member of the management team ceases to act or fails to 
act diligently, a substitute member shall be appointed.
    4. Should the Federal Trade Commission seek in any proceeding to 
compel respondent to divest any of the Columbus Cable Television System 
Assets, as provided in the Consent Agreement, or to seek any other 
injunctive or equitable relief for any failure to comply with the 
Consent Agreement or this Agreement, or in any way relating to the 
Acquisition, as defined in the draft complaint, respondent shall not 
raise any objection based upon the expiration of the applicable Hart-
Scott-Radino Antitrust Improvements Act waiting period or the fact that 
the Commission has permitted the Acquisition. Respondent also waives 
all rights to contest the validity of this Agreement.
    5. To the extent that this Agreement requires respondent to take, 
or prohibits respondent from taking, certain actions that otherwise may 
be required or prohibited by contract, respondent shall abide by the 
terms of this Agreement or the Consent Agreement and shall not assert 
as a defense such contract requirements in any action brought by the 
Commission to enforce the terms of this Agreement or Consent Agreement.
    6. For the purpose of determining or securing compliance with this 
Agreement, subject to any legally recognized privilege, and upon 
written request with reasonable notice to respondent made to its 
principal office, respondent shall permit any duly authorized 
representative or representatives of the Commission:
    a. Access during the office hours of respondent and in the presence 
of counsel to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda, and other records and documents in the 
possession or under the control of respondent relating to compliance 
with this Agreement;
    b. Upon five (5) days' notice to respondent, and without restraint 
or interference from respondent, to interview officers or employees of 
respondent, who may have counsel present, regarding any such matters.
    7. This Agreement shall not be binding until approved by the 
Commission.

Analysis to Aid Public Comment on the Provisionally Accepted Consent 
Order

    The Federal Trade Commission (``Commission'') has accepted for 
public comment from Tele-Communications, Inc. (``TCI''), an agreement 
containing consent order. This agreement has been placed on the public 
record for sixty (60) days from receipt of comments from interested 
persons.
    Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and the comments received, and will decide whether it should 
withdraw from the agreement or make final the agreement's order.
    The Commission's investigation of this matter concerns TCI's 
proposed acquisition of TeleCable Corporation (``TeleCable''). 
TeleCable is the 18th largest cable company in the United States, and 
operates 21 cable systems located in 15 states. The Commission's 
investigation of this matter focused on the Columbus, Georgia, 
metropolitan area. There are only three cable [[Page 9852]] television 
providers in Columbus. TCI and TeleCable are the two largest cable 
television providers in the Columbus area in terms of the number of 
subscribers and the number of homes passed.
    the agreement containing consent order would, if finally issued by 
the Commission, settle charges alleged in the Commission's complaint 
that TCI's acquisition of TeleCable would substantially lessen 
competition in the distribution of multichannel video programming by 
cable television in the Columbus, Georgia, area, in violation of 
Section 7 of the Clayton Act. The nature of such competition to be 
preserved is actual competition to serve existing homes, hotels, and 
apartment complexes. The order will also preserve competition for 
providing cable service to new housing developments and other presently 
cabled portions of the Columbus area. The Commission's complaint 
further alleges that TCI's merger agreement with TeleCable violates 
Section 5 of the Federal Trade Commission Act.
    The order accepted for public comment would require TCI to divest a 
cable television system in the Columbus, Georgia, area. If TCI fails to 
divest a system within one year, the order allows the Commission to 
appointment a trustee to sell a cable system. A hold separate agreement 
executed in conjunction with the consent agreement requires TCI, until 
completion of the divestiture (or as otherwise specified), to maintain 
TeleCable's Columbus cable system separate from TCI's other operations. 
For ten (10) years from the date the order becomes final, the order 
would also prohibit TCI, without obtaining prior Commission approval, 
from acquiring any cable television system in the Columbus, Georgia, 
area.
    The purpose of this analysis is to invite public comment concerning 
the consent order. This analysis is not intended to constitute an 
official interpretation of the agreement and order or to modify their 
terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 95-4280 Filed 2-21-95; 8:45 am]
BILLING CODE 6750-01-M