Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52679 

identification of the human remains as 

Native American is consistent with 

observed burial practices, such as a 

burial in a pit without evidence of a 

coffin, the lack of buttons or other 

artifacts indicative of Euro-American 

clothing, and morphological 

characteristics. 

Mackinaw City is located on the south 

side of the Straits of Mackinac. During 

this period, the French had missions, 

traders, and a military presence at the 

Straits. During the late 17th and early 

18th century, the Odawa were known to 

inhabit both sides of the Straits, as 

documented by French missionary and 

military records. At this time, Huron/ 

Wyandotte refugees, fleeing attacks by 

the Iroquois, also lived on the north side 

of the Straits, at present day St. Ignace. 

The Sault Ste. Marie Tribe of Chippewa 

Indians resided on the north side of the 

Straits as well. A band of Chippewa was 

reported at times in the Cheboygan area. 

Other tribes were known to pass 

through the area, often stopping to 

trade. Although the tribal affiliation of 

the human remains found at Mackinaw 

City is not scientifically certain, the 

remains are likely culturally affiliated 

with the Odawa, as they were the tribe 

most commonly reported in the 

Mackinaw City area during the period in 

question. The Odawa who lived at what 

is now Mackinaw City moved to Little 

Traverse Bay in the 1740s, and their 

descendants are members of the Little 

Traverse Bay Bands of Odawa Indians, 

Michigan, based in what is now Emmet 

County. 

The Village of Mackinaw City 

transferred the human remains found in 

the water main trench to the Michigan 

Historical Center with the 

understanding that the Center would 

arrange for reburial after studies were 

complete. The Center entered into 

consultation with the Little Traverse 

Bay Bands of Odawa Indians in the 

spring of 2008. The tribe has provided 

the Michigan Historical Center with 

documentation of their continuous 

presence in the Straits of Mackinac area 

for at least 350 years. The NAGPRA 

coordinators of the Sault Ste. Marie 

Tribe of Chippewa Indians of Michigan 

and Wyandotte Nation, Oklahoma have 

sent the Michigan Historical Center 

letters of support for repatriation of the 

human remains removed from 

Mackinaw City to the Little Traverse 

Bay Bands of Odawa Indians, Michigan. 

Officials of the Michigan Historical 

Center have determined that, pursuant 

to 25 U.S.C. 3001 (9–10), the human 

remains described above represent the 

physical remains of two individuals of 

Native American ancestry. Officials of 

the Michigan Historical Center also have 

determined that, pursuant to 25 U.S.C. 

3001 (2), there is a relationship of 

shared group identity that can be 

reasonably traced between the Native 

American human remains and the Little 

Traverse Bay Bands of Odawa Indians, 

Michigan. 

Representatives of any other Indian 

tribe that believes itself to be culturally 

affiliated with the human remains 

should contact Barbara Mead, Michigan 

Historical Center, P.O. Box 30740, 

Lansing, MI 48909–8240, telephone 

(517) 373–6416, before October 10, 

2008. Repatriation of the human 

remains to the Little Traverse Bay Band 

of Odawa Indians, Michigan may 

proceed after that date if no additional 

claimants come forward. 

The Michigan Historical Center is 

responsible for notifying the Little 

Traverse Bay Bands of Odawa Indians, 

Michigan; Sault Ste. Marie Tribe of 

Chippewa Indians of Michigan; and 

Wyandotte Nation, Oklahoma that this 

notice has been published. 

Dated: August 20, 2008 

Sherry Hutt, 

Manager, National NAGPRA Program. 

[FR Doc. E8–21009 Filed 9–9–08; 8:45 am] 

BILLING CODE 4312–50–S 

DEPARTMENT OF JUSTICE 

Notice of Lodging Proposed Consent 

Decree 

In accordance with Departmental 

Policy, 28 CFR 50.7, notice is hereby 

given that a proposed Consent Decree in 

United States of America v. Mark and 

Amanda St. Pierre, Civil Action No. 

1:08–cv–177 (D. Vt.), was lodged with 

the United States District Court for the 

District of Vermont on September 3, 

2008. 

This proposed Consent Decree 

concerns a complaint filed by the 

United States against Mark and Amanda 

St. Pierre, pursuant to sections 309(b), 

309(d) and 404 of the Clean Water Act, 

33 U.S.C. 1319(b), 1319(d) and 1344, to 

obtain injunctive relief from and impose 

civil penalties against the Defendants 

for violating the Clean Water Act by 

discharging pollutants without a permit 

into waters of the United States. The 

proposed Consent Decree resolves these 

allegations by requiring the Defendants 

to restore the impacted areas and 

perform mitigation and to pay a civil 

penalty. The Consent Decree also 

provides for the Defendants to perform 

a supplemental environmental project. 

The Department of Justice will accept 

written comments relating to this 

proposed Consent Decree for thirty (30) 

days from the date of publication of this 

Notice. Please address comments to 

Joshua M. Levin, Senior Trial Attorney, 

U.S. Department of Justice, Environment 

and Natural Resources Division, 

Environmental Defense Section, P.O. 

Box 23986, Washington, DC 20026–

3986, and refer to United States of 

America v. Mark and Amanda St. 

Pierre, DJ # 90–5–1–1–17229/1. 

The proposed Consent Decree may be 

examined at the Clerk’s Office, United 

States District Court for the District of 

Vermont, Federal Bldg, 5th Floor, 11 

Elmwood Avenue, Burlington, VT 

05401. In addition, the proposed 

Consent Decree may be viewed at 

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

Consent_Decrees.html. 

Scott A. Schachter, 

Assistant Section Chief, Environmental 

Defense Section, Environment and Natural 

Resources Division. 

[FR Doc. E8–20987 Filed 9–9–08; 8:45 am] 

BILLING CODE 4410–CW–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Raycom Media, Inc.; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)(h), that a 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. Raycom Media, Inc., Civil 

Action No. 1:08–cv–01510. On August 

28, 2008, the United States filed a 

Complaint alleging that the acquisition 

by Raycom Media, Inc. of WWBT–TV, a 

Richmond, Virginia, broadcast 

television station, from Lincoln 

Financial Media Company violates 

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

18. The proposed Final Judgment, filed 

the same time as the Complaint, 

requires Raycom to divest its Richmond, 

Virginia, broadcast television station 

WTVR–TV, along with certain related 

assets. 

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, 

450 Fifth Street, NW., Suite 1010, 

Washington, DC 20530 (telephone: 202–

514–2481), on the Department of 

Justice’s Web site (http:// 

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

the Clerk of the United States District 


pwalker on PROD1PC71 with NOTICES
52680 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

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 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 John R. Read, 

Chief, Litigation III, Antitrust Division, 

Department of Justice, Washington, DC 

20530 (telephone: 202–307–0468). 

Patricia Brink, 

Deputy Director, Office of Operations. 

United States District Court for the 

District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 450 5th 

Street, NW., Suite 4000, Washington, DC 

20530, Plaintiff, 

v. 

Raycom Media, Inc., RSA Tower, 20th 

Floor, 201 Monroe Street, Montgomery, 

AL 36104, Defendant. 

Civil Action No.: l:08–cv–01510 

Assigned To: Urbina, Ricardo M. 

Assign. Date: 08/28/2008 

Description: Antitrust 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil action to obtain equitable relief 

against defendant Raycom Media, Inc. 

(‘‘Raycom’’), and complains and alleges 

as follows: 

1. The United States brings this suit 

to prevent Raycom from continuing to 

own two of the top four broadcast 

television stations in Richmond, 

Virginia. On April 1, 2008, Raycom 

consummated a transaction with 

Lincoln Financial Media Company 

(‘‘Lincoln’’), in which Raycom acquired 

WWBT–TV, the Richmond, Virginia, 

affiliate of the National Broadcasting 

Corporation (‘‘NBC’’) (the 

‘‘acquisition’’). Raycom at that time 

already owned and continues to own 

WTVR–TV, the Richmond, Virginia, 

affiliate of CBS Broadcasting Inc. 

(‘‘CBS’’). In 2007, WWBT–TV earned 

approximately 32 percent and WTVR–

TV earned approximately 23 percent of 

the broadcast television spot advertising 

revenues in the Richmond market. 

2. The acquisition eliminated 

substantial head-to-head competition 

between WWBT–TV and WTVR–TV. 

Unless remedied, the loss of WWBT–TV 

as an independent significant 

competitor will substantially lessen 

competition for the sale of broadcast 

television spot advertising in the 

Richmond market, in violation of 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. 

I. Jurisdiction and Venue 

3. This Complaint is filed and this 

action is instituted under section 15 of 

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

25, to prevent and restrain Defendant 

from violating Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

4. Raycom sells broadcast television 

spot advertising to advertisers, a 

commercial activity that substantially 

affects and is in the flow of interstate 

commerce. This Court has jurisdiction 

over the subject matter of this action 

pursuant to sections 15 and 16 of the 

Clayton Act, 15 U.S.C. 25, 26, and 28 

U.S.C. 1331, 1337. 

5. The Defendant has consented to 

personal jurisdiction and venue in this 

judicial district. 

II. The Defendant 

6. Raycom Media, Inc. is a Delaware 

corporation with its headquarters in 

Montgomery, Alabama. 

7. Raycom is one of the country’s 

largest television broadcasters. It 

currently owns and/or operates forty-six 

television stations in thirty-five markets 

and eighteen states. Raycom also 

distributes syndicated television 

programming and provides event 

management, information system 

support, and website design and hosting 

services. 

III. Trade and Commerce 

A. Relevant Product Market 

8. Broadcast television stations attract 

viewers through their programming and 

then sell access to their viewers to 

businesses and others that want to 

advertise their products and services. 

Broadcast television programming is 

transmitted by broadcast television 

stations, for free, over the air to 

television receivers. Broadcast 

television programming is also 

simultaneously retransmitted, as aired, 

by cable television systems (systems 

that deliver programming, for a fee, 

through wires into homes), and satellite 

television systems (systems that deliver 

programming over the air, for a fee, to 

home satellite receivers). Sales of ‘‘spot’’

advertising generate the majority of a 

broadcast television station’s revenues. 

Broadcast television spot advertising is 

purchased by advertisers that want to 

target potential customers in specific 

localized geographic markets. It differs 

from network and syndicated television 

advertising, which is sold by the major 

television networks and producers of 

syndicated programs on a nationwide 

basis and broadcast in every market 

where the network or syndicated 

program is aired. Spot advertising is 

sold either directly by the station or 

through its national representative on a 

localized, market-by-market basis. 

9. Broadcast television spot 

advertising possesses attributes that 

collectively set it apart from advertising 

using other types of media. Television 

combines sight, sound, and motion, 

thereby creating a memorable and 

effective advertisement. Moreover, of all 

media, broadcast television spot 

advertising reaches the largest 

percentage of all potential customers in 

a particular desired target audience and 

is therefore especially effective in 

introducing and establishing the image 

of a product. A significant number of 

advertisers view broadcast television 

spot advertising as a necessary 

advertising medium for which there is 

no close substitute. Such customers 

would not switch to another advertising 

medium—such as radio, cable, internet, 

or newspaper—or some combination 

thereof, if broadcast television spot 

advertising prices increased by a small 

but significant amount. 

10. In the Richmond DMA, cable 

television advertising is not a 

meaningful substitute for broadcast 

television spot advertising because the 

viewership of cable television networks, 

even when the networks are combined 

and packaged together, is significantly 

smaller than the viewership of broadcast 

television stations and is more 

demographically homogeneous. 

Additionally, unlike broadcast 

television advertising, it is generally 

difficult for advertisers to place last 

minute advertisements on cable 

television. Other media, such as radio, 

newspapers, internet or billboards, are 

even less desirable substitutes for 

broadcast television advertising. 

Satellite television advertising is not a 

substitute because satellite television 

providers cannot limit the distribution 

of their advertisements to a particular 

DMA, and therefore do not sell 

advertising in competition with local 

broadcast television stations. 

11. Broadcast television stations 

generally can identify advertisers with 

strong broadcast television advertising 

preferences. Broadcast television 

stations negotiate prices individually 

with advertisers; consequently, 

broadcast television stations can charge 

different advertisers different prices. In 

the event of a price increase in 

broadcast television spot advertising, 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52681 

some advertisers may shift some of their 

advertising to other media rather than 

absorb a price increase. However, the 

existence of such advertisers would not 

prevent broadcast television stations 

from profitably raising prices by a small 

but significant amount for a substantial 

number of advertisers that would not 

shift to other media or broadcast 

television stations. 

12. Accordingly, the sale of broadcast 

television spot advertising is a relevant 

product market within the meaning of 

section 7 of the Clayton Act. 

B. Relevant Geographic Market 

13. A Designated Marketing Area 

(‘‘DMA’’) is a non-overlapping 

geographic area defined by A. C. Nielsen 

Company, a firm that surveys television 

viewers and furnishes television 

stations, advertisers, and advertising 

agencies with data to aid in evaluating 

audience size and composition. The 

Richmond DMA encompasses the city of 

Richmond. Virginia, and the 

surrounding counties in which stations 

within the Richmond DMA receive the 

largest share of viewers. 

14. Advertisers use broadcast 

television stations within the Richmond 

DMA to reach the largest possible 

number of viewers within the entire 

DMA. Advertising on television stations 

outside the Richmond DMA is not an 

effective alternative for these advertisers 

because such stations are not viewed by 

a significant number of potential 

customers within the Richmond DMA. 

Thus, if there were a small but 

significant price increase in broadcast 

television spot advertising prices within 

the Richmond DMA, an insufficient 

number of advertisers would switch 

their advertising time purchases to 

television stations outside the 

Richmond DMA to render the price 

increase unprofitable. 

15. Accordingly, the Richmond DMA 

is a relevant geographic market for the 

sale of broadcast television spot 

advertising within the meaning of 

section 7 of the Clayton Act. 

C. Anticompetitive Effects 

16. Broadcast television stations 

compete for advertisers by providing 

advertisers access to their viewers. A 

station attracts viewers by selecting 

shows that appeal to the greatest 

number of viewers, and also tries to 

differentiate itself from other stations by 

appealing to specific demographic 

groups. Advertisers, in turn, are 

interested in using broadcast television 

spot advertising to reach a large 

audience, as well as to reach a high 

proportion of the type of viewers that 

are most likely to buy their products. 

17. Broadcast station ownership in the 

Richmond DMA is highly concentrated. 

Unremedied, Raycom’s acquisition of 

WWBT–TV would give it control of two 

of the top four broadcast stations in the 

Richmond DMA and sales of over 50 

percent of the total broadcast television 

spot advertising revenues in the 

Richmond DMA. Using a measure of 

concentration called the Herfindahl-Flirschnian Index (‘‘HHI’’), defined and 

explained in Appendix A, combining 

the ownership of WWBT–TV and 

WTVR–TV substantially increases the 

HHI from approximately 2400 to 

approximately 3800, well above the 

1800 threshold at which the Division 

normally considers a market to be 

highly concentrated. 

18. Prior to the transaction, WWBT–

TV, the local NBC affiliate, and WTVR–

TV, the local CBS affiliate, competed 

vigorously for advertisers because the 

demographic makeup of their viewers 

makes them close substitutes for a 

significant number of advertisers. The 

two stations competed head-to-head for 

a substantial number of advertisers 

seeking a desired audience, forcing the 

stations to offer better terms to win an 

advertiser’s business. These advertisers 

would find it difficult or impossible to 

obtain competitive rates with the threat 

to ‘‘buy around’’ WWBT–TV and 

WTVR–TV, because they would be 

unable to as effectively reach their 

desired audiences without purchasing 

advertising from Raycom’s stations. 

Thus, without divestiture of one of its 

Richmond stations, Raycom’s 

acquisition of WWBT–TV substantially 

reduces competition for broadcast 

television spot advertising in the 

Richmond DMA. 

D. Entry 

19. De novo entry into the Richmond 

DMA is unlikely, because the Federal 

Communications Commission (‘‘FCC’’) 

regulates entry through the issuance of 

licenses. These licenses are difficult to 

obtain because the availability of 

spectrum is limited, and the regulatory 

process associated with obtaining a 

license is lengthy. Even if a new signal 

became available, commercial success 

would come, at best, over a period of 

many years, because all major broadcast 

networks are already affiliated with a 

licensee in the Richmond DMA, the 

contracts last for many years, and the 

broadcast networks rarely switch 

licensees when the contracts expire. 

Thus, entry into the Richmond DMA 

broadcast television spot advertising 

market would not be timely, likely, or 

sufficient to deter Raycom from 

unilaterally raising prices. 

IV. Violation Alleged 

20. Each and every allegation in 

paragraphs I through 19 of this 

Complaint is here realleged with the 

same force and effect as though said 

paragraphs were here set forth in full. 

21. The effect of Raycom’s acquisition 

of WWBT–TV would be to substantially 

lessen competition in interstate trade 

and commerce, in violation of Section 7 

of the Clayton Act. 

22. Raycom’s acquisition of WWBT–

TV will likely have the following 

effects, among others: 

a. Competition in the sale of broadcast 

television spot advertising in the 

Richmond DMA would be substantially 

lessened; 

b. Actual and potential competition 

between WWBT–TV and WTVR–TV in 

the sale of broadcast television spot 

advertising in the Richmond DMA 

would be eliminated; and 

c. The prices for broadcast television 

spot advertising in the Richmond DMA 

would likely increase. 

23. Unless restrained, the acquisition 

will violate Section 7 of the Clayton Act, 

as amended, 15 U.S.C. 18. 

V. Requested Relief 

24. Plaintiff requests: 

a. That Raycom’s acquisition of 

WWBT–TV be adjudged to violate 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18; 

b. That Raycom be ordered to divest 

WTVR–TV in accord with the attached 

Hold Separate Stipulation and Order 

and proposed Final Judgment; 

c. That a proposed Final Judgment 

giving effect to the divestiture be 

entered by the Court after compliance 

with the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16; 

d. That the United States be awarded 

the costs of this action; and 

e. That the United States be granted 

such other and further relief as the 

Court may deem just and proper. 

Dated: August 28, 2008. 

Respectfully submitted, 

For Plaintiff United States: 

Deborah A. Garza, 

Acting Assistant Attorney General. 

Ann Marie Blaylock (D.C. Bar No. 967825), 

Trial Attorney, Litigation III Section, 

Antitrust Division, United States 

Department of Justice, 450 Fifth Street, 

NW., Suite 4000, Washington, DC 20530, 

(202) 616–5932, Facsimile: (202) 514–7308, 

ann.blaylock@usdoj.gov. 

Patricia A. Brink, 

Deputy Director, Office of Operations. 

John R. Read (D.C. Bar No. 419373), 

Chief, Litigation III Section, 

Nina B. Hale, 

Assistant Chief, Litigation III Section. 


pwalker on PROD1PC71 with NOTICES
52682 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

Certificate of Service 

I hereby certify that on August 28, 

2008, I caused a copy of the foregoing 

Complaint to be served on the defendant 

in this matter in the manner set forth 

below: 

By facsimile and U.S. mail: 

Counsel for Defendant Raycom Media, Inc., 

Everett J. Bowman, Esq., 

Robinson Bradshaw & Hinson, 101 North 

Tryon St., Suite 1900, Charlotte, NC 28246, 

Telephone: (704) 377–8329, Facsimile: 

(704) 373–3929, E-mail: 

ebowman@rbh.com. 

Ann Marie Blaylock (D.C. Bar. No. 967825), 

Litigation III Section, Antitrust Division, 

United States Department of Justice, 450 

Fifth Street, NW., Suite 4000, Washington, 

DC 20530, (202) 616–5932, Facsimile: (202) 

514–7308, ann.blaylockusdoj.gov. 

Appendix A 

Definition of HHI 

The term HH1 means the HerfindahlHirschman Index, a commonly accepted 

measure of market concentration. The 

HHI is calculated by squaring the 

market share of each firm competing in 

the market and then summing the 

resulting numbers. For example, for a 

market consisting of four firms with 

shares of 30, 30, 20, and 20 percent, the 

HHI is 2,600 (302 + 302 + 202 + 202 = 

2,600). The HHI takes into account the 

relative size and distribution of the 

firms in a market. It approaches zero 

when a market is occupied by a large 

number of firms of relatively equal size 

and reaches its maximum of 10,000 

when a market is controlled by a single 

firm. The HHI increases both as the 

number of firms in the market decreases 

and as the disparity in size between 

those firms increases. 

Markets in which the HHI is between 

1000 and 1800 are considered to be 

moderately concentrated, and markets 

in which the HHI is in excess of 1800 

points are considered to be highly 

concentrated. Transactions that increase 

the HHI by more than 100 points in 

highly concentrated markets 

presumptively raise significant antitrust 

concerns under the Department of 

Justice and Federal Trade Commission 

1992 Horizontal Merger Guidelines. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, 

v. 

Raycom Media, Inc., Defendant. 

Civil Action No.: l:08–cv–01510 

Assigned To: Urbina, Ricardo M. 

Assign. Date: 08/28/2008 

Filed: 8/28/08. 

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Complaint on August 

28, 2008, the United States and 

defendant, Raycom Media, Inc. 

(‘‘Raycom’’), 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, defendant agrees 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 

defendant to assure that competition is 

not substantially lessened; 

And whereas, the United States 

requires defendant to make a certain 

divestiture for the purpose of remedying 

the loss of competition alleged in the 

Complaint; 

And whereas, defendant has 

represented to the United States that the 

divestiture required below can and will 

be made and that it 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 defendant under section 7 of the 

Clayton Act, as amended (15 U.S.C. 18). 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ means the entity to 

which defendant divests the Divestiture 

Assets. 

B. ‘‘Raycom’’ means defendant 

Raycom Media, Inc., a Delaware limited 

liability company with its headquarters 

in Montgomery, Alabama, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

C. ‘‘DMA’’ means designated market 

area as defined by A.C. Nielsen 

Company based upon viewing patterns 

and used by the Investing In Television 

BIA Market Report 2007 (2nd edition). 

DMAs are ranked according to the 

number of households therein and are 

used by broadcasters, advertisers and 

advertising agencies to aid in evaluating 

television audience size and 

composition. 

D. ‘‘Richmond market’’ means the 

Richmond, Virginia, DMA broadcast 

television market. 

E. ‘‘WTVR–TV’’ means the broadcast 

television station WTVR–TV located in 

the Richmond market owned by 

defendant. 

F. ‘‘Divestiture Assets’’ means all of 

the assets, tangible or intangible, used in 

the operation of WTVR–TV, including, 

but not limited to, all real property 

(owned or leased), broadcast equipment, 

office equipment, office furniture, 

fixtures, materials, supplies, and other 

tangible property used in the operation 

of the station; all licenses, permits, 

authorizations, and applications 

therefor issued by the Federal 

Communications Commission (‘‘FCC’’) 

and other government agencies relating 

to the station; all contracts (including 

programming contracts and rights), 

agreements, network affiliation 

agreements, leases, and commitments 

and understandings of defendant 

relating to the operation of WTVR–TV; 

all trademarks, service marks, trade 

names, copyrights, patents, slogans, 

programming materials, and 

promotional materials relating to 

WTVR–TV; all customer lists, contracts, 

accounts, and credit records; and all 

logs and other records maintained by 

defendant in connection with WTVR–

TV. 

III. Applicability 

A. This Final Judgment applies to 

Raycom, as defined above, and all other 

persons in active concert or 

participation with Raycom who receive 

actual notice of this Final Judgment by 

personal service or otherwise. 

B. If, prior to complying with section 

IV and V of this Final Judgment, 

Defendant sells or otherwise disposes of 

all or substantially all of its assets or of 

lesser business units that include the 

Divestiture Assets, defendant shall 

require the purchaser to be bound by the 

provisions of this Final Judgment. 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52683 

Defendant need not obtain such an 

agreement from the acquirer of the 

assets divested pursuant to this Final 

Judgment. 

IV. Divestiture 

A. Defendant is ordered and directed, 

within thirty (30) calendar days after the 

filing of the Complaint in this matter or 

five (5) days after notice of the entry of 

this Final Judgment by the Court, 

whichever is later, to divest the 

Divestiture Assets in a manner 

consistent with this Final Judgment to 

an Acquirer acceptable to the United 

States in its sole discretion. 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. With respect to 

divestiture of the Divestiture Assets by 

defendant or the trustee appointed 

pursuant to section V of this Final 

Judgment, if applications have been 

filed with the FCC within the period 

permitted for divestiture seeking 

approval to assign or transfer licenses to 

the Acquirer of the Divestiture Assets, 

but an order or other dispositive action 

by the FCC on such applications has not 

been issued before the end of the period 

permitted for divestiture, the period 

shall be extended with respect to 

divestiture of the Divestiture Assets for 

which FCC approval has not been 

issued until five (5) days after such 

approval is received. Defendants agree 

to use their best efforts to accomplish 

the divestitures set forth in this Final 

Judgment and to seek all necessary 

regulatory approvals as expeditiously as 

possible. This Final Judgment does not 

limit the FCC’s exercise of its regulatory 

powers and process with respect to the 

Divestiture Assets. Authorization by the 

FCC to conduct the divestiture of a 

Divestiture Asset in a particular manner 

will not modify any of the requirements 

of this decree. 

B. In accomplishing the divestiture 

ordered by this Final Judgment, 

defendant promptly shall make known, 

by usual and customary means, the 

availability of the Divestiture Assets. 

Defendant shall inform any person 

making inquiry regarding a possible 

purchase of the Divestiture Assets that 

they are being divested pursuant to this 

Final Judgment and provide that person 

with a copy of this Final Judgment. 

Defendant shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client privileges 

or work-product doctrine. Defendant 

shall make available such information to 

the United States at the same time that 

such information is made available to 

any other person. 

C. Defendant shall provide the 

Acquirer and the United States 

information relating to the personnel 

involved in the operation of the 

Divestiture Assets to enable the 

Acquirer to make offers of employment. 

Defendant will not interfere with any 

negotiations by the Acquirer to employ 

any defendant employee whose primary 

responsibility is the operation of the 

Divestiture Assets. 

D. Defendant shall permit prospective 

Acquirers of the Divestiture Assets to 

have reasonable access to personnel and 

to make inspections of the physical 

facilities of the business to be divested; 

access to any and all environmental, 

zoning, and other permit documents 

and information; and access to any and 

all financial, operational, or other 

documents and information customarily 

provided as part of a due diligence 

process. 

E. Defendant shall warrant to the 

Acquirer that each asset will be 

operational on the date of sale. 

F. Defendant shall not take any action 

that will impede in any way the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

G. Defendant shall warrant to the 

Acquirer that there are no material 

defects in the environmental, zoning, or 

other permits pertaining to the 

operation of each asset, and that 

following the sale of the Divestiture 

Assets, defendant will not undertake, 

directly or indirectly, any challenges to 

the environmental, zoning or other 

permits relating to the operation of the 

Divestiture Assets. 

H. Unless the United States otherwise 

consents in writing, the divestiture 

pursuant to section IV, or by trustee 

appointed pursuant to section V, of this 

Final Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that the Divestiture Assets can and will 

be used by the Acquirer as part of a 

viable, ongoing commercial broadcast 

television business. Divestiture of the 

Divestiture Assets must be made to a 

single Acquirer that can demonstrate to 

the sole satisfaction of the United States 

that the Divestiture Assets will remain 

viable and the divestiture of such assets 

will remedy the competitive harm 

alleged in the Complaint. The 

divestiture, whether pursuant to section 

IV or section V of this Final Judgment, 

(1) Shall be made to an Acquirer that, 

in the United States sole judgment, has 

the intent and capability (including the 

necessary managerial, technical, 

operational, and financial capability) of 

competing effectively in the commercial 

broadcast television business in the 

Richmond market; and 

(2) Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement(s) between an Acquirer and 

defendant gives them the ability 

unreasonably to raise the Acquirer’s 

costs, to lower the Acquirer’s efficiency, 

or otherwise to interfere in the ability of 

the Acquirer to compete effectively. 

V. Appointment of Trustee 

A. If defendant has not divested the 

Divestiture Assets within the time 

period specified in section IV(A), 

defendant shall notify the United States 

of that fact in writing. Upon application 

of the United States, the Court shall 

appoint a trustee selected by the United 

States and approved by the Court to 

effect the divestiture of the Divestiture 

Assets. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Divestiture 

Assets. The trustee shall have the power 

and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to section 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

defendant 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. Defendant shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objections by defendant 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 defendant, 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 

defendant and the trust shall then be 

terminated. The compensation of the 


pwalker on PROD1PC71 with NOTICES
52684 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

trustee and any professionals and agents 

retained by the trustee shall be 

reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture and the speed 

with which it is accomplished, but 

timeliness is paramount. 

E. Defendant shall use its best efforts 

to assist the trustee in accomplishing 

the required divestiture. The trustee and 

any consultants, accountants, attorneys, 

and other persons retained by the 

trustee shall have full and complete 

access to the personnel, books, records, 

and facilities related to the Divestiture 

Assets and defendant shall develop 

financial and other information relevant 

to such business as the trustee may 

reasonably request, subject to reasonable 

protection for trade secret or other 

confidential research, development, or 

commercial information. Defendant 

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, any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person. The 

trustee shall maintain full records of all 

efforts made to divest the Divestiture 

Assets. 

G. If the trustee has not accomplished 

the divestiture ordered under this Final 

Judgment within six (6) months after its 

appointment, the trustee shall promptly 

file with the Court a report setting forth: 

(1) The trustee’s efforts to accomplish 

the required divestiture, (2) the reasons, 

in the trustee’s judgment. why the 

required divestiture has not been 

accomplished, and (3) the trustee’s 

recommendations. To the extent such 

reports contain information that the 

trustee deems confidential, such report 

shall not be filed in the public docket 

of the Court. The trustee 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, defendant 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 defendant. The notice 

shall set forth the details of the 

proposed divestiture and list the name, 

address, and telephone number of each 

person not previously identified who 

offered or expressed an interest in or 

desire to acquire any ownership interest 

in the Divestiture Assets, together with 

full details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from defendant, the proposed 

Acquirer(s), any other third party, or the 

trustee if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer(s) 

and any other potential Acquirer. 

Defendant and the trustee shall furnish 

any additional information requested 

within fifteen (15) calendar days of the 

receipt of the request, unless the parties 

shall otherwise agree. 

C. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after the 

United States has been provided the 

additional information requested from 

defendant, the proposed Acquirer(s), 

any third party and the trustee, 

whichever is later, the United States 

shall provide written notice to 

defendant 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 

defendant’s limited right to object to the 

sale under section V(C) of this Final 

Judgment. Without prior 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 defendant under 

section V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendant shall not finance all or any 

part of any purchase made pursuant to 

section IV or V of this Final Judgment. 

VIII. Hold Separate 

Until the divestiture required by this 

Final Judgment has been accomplished, 

defendant shall take all steps necessary 

to comply with the Hold Separate 

Stipulation and Order entered by this 

Court. Defendant shall take no action 

that would jeopardize the divestiture 

ordered by this Court. 

IX. 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, 

defendant 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 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 Divestiture Assets, and shall 

describe in detail each contact with any 

such person during that period. Each 

such affidavit shall also include a 

description of the efforts defendant has 

taken to solicit buyers for the 

Divestiture Assets and to provide 

required information to prospective 

Acquirers. including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by defendant, 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, defendant shall deliver to the 

United States an affidavit that describes 

in reasonable detail all actions 

defendant has taken and all steps 

defendant has implemented on an 

ongoing basis to comply with section 

VIII of this Final Judgment. Defendant 

shall deliver to the United States an 

affidavit describing any changes to the 

efforts and actions outlined in its earlier 

affidavits filed pursuant to this section 

within fifteen (15) calendar days after 

the change is implemented. 

C. Defendant shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52685 

1Lincoln is not a party to this lawsuit. 

after such divestiture has been 

completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

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 defendant, be 

permitted: 

(1) Access during defendant’s office 

hours to inspect and copy, or at the 

option of the United States, to require 

defendant to provide hard copy or 

electronic copies of, all books, ledgers, 

accounts, records, data, and documents 

in the possession, custody, or control of 

defendant, relating to any matters 

contained in this Final Judgment; and 

(2) To interview, either informally or 

on the record, defendant’s officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendant shall 

submit written reports or response 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 or, 

pursuant to a customary protective 

order or waiver of confidentiality by 

defendant, the FCC, except in the course 

of legal proceedings to which the United 

States is a party (including grand jury 

proceedings), or for the purpose of 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

D. If at the time information or 

documents are furnished by defendant 

to the United States, defendant 

represents and identifies 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 defendant marks 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 defendant ten (10) calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

Defendant may not reacquire any part 

of the Divestiture Assets or enter into 

any local marketing agreement, joint 

sales agreement, or any other 

cooperative selling arrangement with 

respect to the Divestiture Assets during 

the term of this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. 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’ 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: 

Court approval subject to procedures 

of the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16: 

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 450 5th 

Street, NW., Suite 4000, Washington, DC 

20530, Plaintiff, 

v. 

Raycom Media, Inc., RSA Tower, 20th 

Floor, 201 Monroe Street, Montgomery, 

AL 36104, Defendant. 

Civil Action No.: l:08–cv–01510 

Assigned To: Urbina, Ricardo M. 

Assign. Date: 08/28/2008 

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 

Defendant Raycom Media, Inc. 

(‘‘Raycom’’) and Lincoln Financial 

Media Company 1 (‘‘Lincoln’’) entered 

into a Stock Purchase Agreement, dated 

November 12, 2007, pursuant to which 

Raycom acquired three broadcast 

television stations from Lincoln. The 

transaction closed on April 1, 2008. The 

United States filed a cMl antitrust 

Complaint on August 28, 2008, alleging 

that Raycom’s acquisition of one of the 

stations, WWBT–TV, the Richmond, 

Virginia, affiliate of the National 

Broadcasting Corporation, when it 

already owned WTVR–TV, the 

Richmond, Virginia, affiliate of CBS 

Broadcasting Inc., violates section 7 of 

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

Complaint alleges that Raycom, as a 

result of the acquisition, owns two of 

the top four broadcast television stations 

in the Richmond market accounting for 

more than half of all broadcast 

television spot advertising revenue in 

2008. Raycom’s continued ownership of 

both WWBT–TV and WTVR–TV would 

substantially lessen competition in the 

sale of broadcast television spot 

advertising in Richmond, Virginia, and 

the surrounding area. 

At the same time the Complaint was 

filed, the United States also filed a Hold 

Separate Stipulation and Order (‘‘Hold 

Separate’’) and proposed Final 

Judgment, which are designed to 


pwalker on PROD1PC71 with NOTICES
52686 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

2A Designated Marketing Area (‘‘DMA’’) is a nonoverlapping geographic unit defined by A.C. 

Nielsen Company, a firm that surveys television 

viewers and furnishes television stations, 

advertisers, and advertising agencies in a particular 

area with data to aid in evaluating audience size 

and composition. A DMA is used to identify 

broadcast television stations whose broadcast 

signals reach a specific area and attract the most 

viewers. 

eliminate the anticompetitive effects of 

Raycom’s common ownership of 

WWBT–TV and WTVR–TV. Under the 

proposed Final Judgment, which is 

explained more fully below, Raycom 

agrees to divest WTVR–TV. Under the 

terms of the Hold Separate Stipulation 

and Order, Raycom agrees to take 

certain steps during the pendency of the 

proposed divestiture to ensure that 

WTVR–TV is operated as a 

competitively independent, 

economically viable and ongoing 

business concern, that will remain 

independent and uninfluenced by 

Raycom’s other broadcast operations, 

and that competition is maintained 

between WWBT–TV and WTVR–TV. 

The United States and Defendant have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendant and the Transaction 

Defendant Raycom is a Delaware 

limited liability company with its 

headquarters in Montgomery, Alabama. 

Raycom, through its subsidiaries, owns 

approximately 46 television stations in 

the United States, including WWBT–TV 

and WTVR–TV in Richmond, Virginia. 

B. The Transaction 

On November 12, 2007, Raycom 

agreed to acquire three broadcast 

television stations in three different 

markets from entities controlled by 

Lincoln. In one of those markets—

Richmond, Virginia—the acquisition 

would result in Raycom owning 

WWBT–TV and WTVR–TV, two of the 

top four broadcast television stations 

that combined account for more than 50 

percent of the broadcast television spot 

advertising revenues in that market. 

Although a Federal Communications 

Commission (‘‘FCC’’) rule against 

duopolies in local markets (‘‘the FCC 

duopoly rule’’) prohibited Raycom from 

owning both stations, prior to closing 

Raycom planned to seek a temporary 

waiver of the FCC duopoly rule to allow 

the transaction to be completed, and 

then to divest WTVR–TV to cure the 

overlap. 

On January 9, 2008, the United States, 

Raycom, and Lincoln entered into an 

agreement by which: The United States 

agreed to defer filing suit to enjoin the 

transaction for a period of ninety days 

following the closing of the RaycomLincoln transaction, during which 

period Raycom was to sell WTVR–TV; 

Raycom agreed that the United States 

could tile the executed Hold Separate 

Stipulation and Order and a proposed 

Final Judgment compelling the sale of 

WTVR–TV in the event that Raycom did 

not sell WTVR–TV within that period; 

and Raycom agreed to comply by the 

terms of the Hold Separate Stipulation 

and Order requiring Raycom to preserve 

and hold separate WTVR–TV, so that 

competition in the Richmond broadcast 

television advertising market would be 

maintained. 

Raycom closed its transaction with 

Lincoln on April 1, 2008, but the 

agreed-upon divestiture has not yet 

taken place. Therefore, in accordance 

with the terms of the January 9, 2008 

agreement, the United States instituted 

this action. 

C. The Competitive Effects of the 

Transaction 

1. The Relevant Product and Geographic 

Markets 

The Complaint alleges that the 

provision of broadcast television spot 

advertising in the Richmond Designated 

Marketing Area (‘‘Richmond DMA’’) 

constitutes a line of commerce and 

section of the country, or relevant 

market, for antitrust purposes. Broadcast 

television spot advertising comprises 

the majority of a broadcast television 

station’s revenues. It is purchased by 

advertisers who want to target potential 

customers in specific geographic 

markets and differs from network and 

syndicated television advertising, both 

of which are sold by the major 

television networks and producers of 

syndicated programs on a nationwide 

basis and broadcast in every market 

where the network or syndicated 

program is aired. Spot advertising is 

sold either directly by the station, or 

through its national representative, on a 

localized, market-by-market basis. 

The Complaint alleges that broadcast 

television spot advertising possesses 

specific characteristics, such as its 

combination of sight, sound, and 

motion, and broad reach, that 

collectively differentiate it from other 

media. Broadcast television stations are 

able to identify advertisers with strong 

preferences for broadcast television 

advertising, and can charge different 

advertisers different prices. The 

Complaint alleges that if broadcast 

television stations were to raise the 

price of spot advertising, some 

advertisers might shift some of their 

advertising to other media rather than 

absorb a price increase. However, the 

existence of such advertisers would not 

prevent broadcast television stations 

from profitably raising prices by a small 

but significant amount for a substantial 

number of advertisers that would not 

shift. 

The Complaint alleges that the 

Richmond. Virginia, DMA is the 

relevant geographic market. The 

Richmond DMA 2 encompasses the city 

of Richmond, Virginia, and the 

surrounding counties in which stations 

within the Richmond DMA receive the 

largest share of viewers. Advertisers use 

broadcast television stations within the 

Richmond DMA to reach the largest 

possible number of viewers within the 

entire DMA. Advertising on television 

stations outside the Richmond DMA is 

not an effective alternative for 

advertisers wishing to target viewers 

within the Richmond DMA, because 

such stations are not viewed by a 

significant number of potential 

customers within the Richmond DMA. 

2. Anticompetitive Effects of the 

Transaction 

Raycom’s acquisition of WWBT–TV 

substantially lessens competition in the 

provision of broadcast television spot 

advertising time in the Richmond DMA. 

Raycom’s ownership of WWBT–TV and 

WTVR–TV gives it control over two of 

the top four broadcast stations in the 

Richmond DMA and over 50 percent of 

the broadcast television spot advertising 

revenue in the Richmond DMA. 

Combining the ownership of WWBT–TV 

and WTVR–TV substantially increases 

the already high concentration in the 

market, which will reduce competition 

and lead to higher prices. 

Advertisers select broadcast television 

stations to reach a large percentage of 

their target audience based upon a 

number of factors, including the size 

and demographic characteristics of the 

station’s audience. Many advertisers 

seek to reach a large percentage of their 

target audience by selecting those 

broadcast television stations whose 

audience best correlates to their target 

audience. If multiple broadcast 

television stations efficiently reach that 

target audience, advertisers benefit from 

the competition among such stations to 

offer better prices or services. Today, 

WWBT–TV and WTVR–TV compete 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52687 

head-to-head to reach the same 

audiences and, for many advertisers that 

buy broadcast television time in 

Richmond, they are close substitutes for 

each other based on their specific 

audience characteristics. Because 

advertisers seeking to reach a target 

audience would have fewer and more 

expensive alternatives to the merged 

entity as a result of the merger, the 

acquisition would give Raycom the 

ability to raise its rates. 

The Complaint alleges that new entry 

into the Richmond broadcast television 

spot advertising market is highly 

unlikely in response to a Raycom price 

increase. The FCC regulates entry 

through the issuance of licenses. These 

licenses are difficult to obtain because 

the availability of spectrum is limited, 

and the regulatory process associated 

with obtaining a license is lengthy. Even 

if a new signal became available, 

commercial success would come, at 

best, over a period of many years, 

because all major broadcast networks 

are already affiliated with a station in 

the Richmond-DMA, the contracts last 

for many years, and the broadcast 

networks rarely switch licensees when 

the contracts expire. Thus, entry into 

the Richmond DMA broadcast television 

spot advertising market would not be 

timely, likely, or sufficient to deter 

Raycom from unilaterally raising prices. 

For these reasons, the Division 

concluded that Raycoms acquisition of 

WWBT–TV, when it already owned 

WTVR–TV, would substantially lessen 

competition in the sale of broadcast 

television spot advertising time in the 

Richmond DMA, eliminate actual 

competition between WWBT–TV and 

WTVR–TV, and result in increased rates 

for broadcast television spot advertising 

time in the Richmond DMA, all in 

violation of section 7 of the Clayton Act. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment requires 

that Defendant divest all of the tangible 

and intangible assets used in the 

operation of WTVR–TV, defined in the 

Final Judgment as the ‘‘Divestiture 

Assets.’’ The sale of the Divestiture 

Assets according to the terms of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in the Richmond market for 

broadcast television spot advertising 

time. The Divestiture Assets must be 

divested in such a way as to satisfy the 

United States in its sole discretion that 

WTVR–TV can and will be operated by 

the acquirer as a viable, ongoing 

commercial broadcast television 

business; and Defendant must take all 

reasonable steps necessary to 

accomplish the divestiture quickly and 

shall cooperate with prospective 

acquirers. The divestiture will establish 

a new, independent, and economically 

viable competitor. 

Unless the United States grants an 

extension of time, Raycom must divest 

WTVR–TV either within thirty (30) 

calendar days after the Complaint has 

been filed or within five (5) days after 

notice of entry of the Final Judgment, 

whichever is later. The United States 

may, in its sole discretion, grant one or 

more extensions of time, which in total 

may not exceed sixty (60) calendar days. 

Until the divestiture takes place, 

Raycom will maintain WTVR–TV as an 

independent competitor to the other 

broadcast television stations in the 

Richmond DMA, including WWBT–TV. 

WTVR–TV must be divested in such a 

way as to satisfy the United States in its 

sole discretion that it can and will be 

operated by the purchaser as a viable, 

ongoing business that can compete 

effectively in the relevant market. 

Raycom must take all reasonable steps 

necessary to accomplish the divestiture 

quickly and shall cooperate with 

prospective purchasers. 

If Raycom fails to divest WTVR–TV 

within the time periods specified in the 

Final Judgment, the Court, upon 

application of the United States, shall 

appoint a trustee nominated by the 

United States and approved by the 

Court to effect the divestiture. If a 

trustee is appointed, the proposed Final 

Judgment provides that Raycom will 

pay all costs and expenses of the trustee 

and any professionals and agents 

retained by the trustee. The 

compensation paid to the trustee and 

any persons retained by the trustee shall 

be both reasonable in light of the value 

of WTVR–TV 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. After 

appointment, the trustee will file 

monthly reports with the United States 

and the Court, setting forth the trustee’s 

efforts to accomplish the divestiture 

ordered under the proposed Final 

Judgment. If the trustee has not 

accomplished the divestiture within six 

(6) months after its appointment, the 

trustee shall promptly file with the 

Court a report setting forth (1) the 

trustee’s efforts to accomplish the 

required divestiture, (2) the reasons, in 

the trustee’s judgment, why the required 

divestiture has not been accomplished, 

and (3) the trustee’s recommendations. 

At the same time, the trustee will 

furnish such report to the United States, 

who will have the right to make 

additional recommendations consistent 

with the purpose of the trust. In such a 

situation, the Court may enter any 

order(s) it deems appropriate to carry 

out the purpose of the Final Judgment. 

The proposed Final Judgment requires 

that Raycom maintain and operate 

WTVR–TV separate and apart from 

Raycom’s other operations, pending 

divestiture. The Final Judgment also 

contains provisions to ensure that 

WTVR–TV will be preserved, so that 

after divestiture it will remain a viable, 

aggressive competitor. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

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

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of section 5(a) of the Clayton 

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

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against Defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to the United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, 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 the 

United States will be filed with the 

Court and published in the Federal 

Register. 


pwalker on PROD1PC71 with NOTICES
52688 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

3The 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)(l) (2006); 

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

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

4Cf 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’’). 

Written comments should be 

submitted to: John Read, Chief, 

Litigation III Section, Antitrust Division, 

United States Department of Justice, 450 

5th St., NW., Suite 4000, 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 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Defendant. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against Defendant’s 

acquisition of WWBT–TV. The United 

States is satisfied, however, that the 

divestiture of assets described in the 

proposed Final Judgment will preserve 

competition for the provision of 

broadcast television spot advertising in 

the relevant market identified by the 

United States. 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)(l)(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 SBC Commc’ns, Inc., 489 F. 

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

public interest standard under the 

Tunney Act).3

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).4 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 

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 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52689 

5See 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’’); 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.’’); 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.’’). 

1The Show Cause Order also alleged that ‘‘[i]n 

November 2002, 22 bottles of ephedrine products 

distributed by Novelty were found at an illicit 

methamphetamine laboratory in Connecticut.’’

Show Cause Order at 2. 

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 11.5

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: August 28, 2008. 

Respectfully submitted, 

Ann Marie Blaylock (D.C. Bar No. 967825), 

Trial Attorney, United States Department of 

Justice, Antitrust Division, Liberty Square 

Building, 450 Fifth Street, NW., Suite 4000, 

Washington, DC 20530, (202) 616–5932, 

Facsimile: (202) 514–7308, 

ann.blaylock@usdoj.gov. 

Certificate of Service 

I hereby certify that on August 28, 

2008, I caused a copy of the foregoing 

Competitive Impact Statement to be 

served on the defendant in this matter 

in the manner set forth below: 

By facsimile and U.S. mail: 

Counsel for Defendant Raycom Media, Inc. 

Everett J. Bowman, Esq., 

Robinson Bradshaw & Hinson, 101 North 

Tryon St., Suite 1900, Charlotte, NC 28246, 

Telephone: (704) 377–8329, Facsimile: 

(704) 373–3929, E-mail: 

ebowman@rbh.com. 

Ann Marie Blaylock (D.C. Bar. No. 967825), 

Litigation III Section, Antitrust Division, 

United States Department of Justice, 450 

Fifth Street, NW., Suite 4000, Washington, 

DC 20530, (202) 616–5932, Facsimile: (202) 

514–7308, ann.blaylock@usdoj.gov. 

[FR Doc. E8–20878 Filed 9–9–08; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 08–33] 

Novelty Distributors, Inc.; Revocation 

of Registration 

On January 17, 2008, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration to Novelty Distributors, 

Inc. (Respondent), of Greenfield, 

Indiana. The Order immediately 

suspended and proposed the revocation 

of Respondent’s DEA Certificate of 

Registration, 003563NSY, as a 

distributor of the list I chemicals 

ephedrine and pseudoephedrine, on the 

grounds that its ‘‘continued registration 

is inconsistent with the public interest,’’

and ‘‘constitute[d] an imminent danger 

to public health and safety.’’ Show 

Cause Order at 1 (ALJ EX. 1) (citing 21 

U.S.C. 823(h), 824(a)(4), and 824(d)). 

More specifically, the Show Cause 

Order alleged that Respondent was 

storing listed chemical products at, and 

distributing them from, over 100 

unregistered locations throughout the 

United States, in violation of Federal 

law and regulations. Id. (citing 21 U.S.C. 

822(e), 21 CFR 1309.21 and 1309.23(a)). 

Next, the Show Cause Order alleged 

that Respondent was distributing 

quantities of listed chemical products 

‘‘to small retail outlets such as 

convenience stores’’ in amounts ‘‘far 

exceed[ing] what those retail outlets 

could be expected to sell for legitimate, 

therapeutic purposes.’’ Id. at 2. The 

Order thus alleged that the ‘‘listed 

chemical products distributed by 

[Respondent] in large quantities have 

been, and are likely to continue being, 

diverted to the clandestine manufacture 

of methamphetamine.’’ Id. (citing cases). 

Relatedly, the Show Cause Order 

alleged that some ‘‘[s]mall retail outlets 

that receive large quantities of * * * 

listed chemical products from 

[Respondent] sell such products to 

individuals in amounts that cannot be 

attributed to legitimate individual 

needs,’’ that ‘‘some of the retail outlets 

allow customers to make multiple 

purchases of scheduled listed chemical 

products within a single week, and in 

some cases, within a single day,’’ and 

that ‘‘[s]ome customers of these retail 

outlets purchased more than 9 grams of 

ephedrine or pseudoephedrine base 

within 30 days in violation of 21 U.S.C. 

844(a).’’ Id.1

The Show Cause Order further alleged 

that between January 1, 2007, and July 

9, 2007, Respondent distributed listed 

chemical products ‘‘on at least 284 

occasions to 35 retail outlets,’’ which 

had not self-certified as required under 

Federal law. Id. (citing 21 U.S.C. 

830(e)(1)(A)(vii)). Id. Moreover, on three 

occasions subsequent to February 1, 

2007, Respondent allegedly distributed 

24-count bottles of listed chemical 

products to retailers in violation of 

Federal law, which effective April 9, 

2006, required that non-liquid form 

products be sold only in blister packs. 

Id. at 2–3 (citing 21 U.S.C. 830(d)(2)). 

Relatedly, the Show Cause Order 

alleged that Respondent had distributed 

tablet-form products to retailers in 

Kentucky and North Carolina in 

violation of the laws of these States 

which ‘‘prohibit the sale of non-liquid 

ephedrine and pseudoephedrine except 

in a gel-cap product.’’ Id. at 3. 

Finally, the Show Cause Order alleged 

that in July 2007, DEA had audited 

twenty listed chemical products which 

Respondent distributed. Id. at 2. The 

Show Cause Order alleged that 

Respondent ‘‘could not account for 

more than 60,000 dosage units of two 

ephedrine products’’ and that it also had 

‘‘overages for 16 different * * * listed 

chemical products.’’ Id. The Order thus 

alleged that Respondent ‘‘failed to 

maintain accurate records of its 

distributions and receipts of * * * 

listed chemical products in violation of 

21 U.S.C. 830(a) and 21 CFR 1310.04.’’

Id. 


pwalker on PROD1PC71 with NOTICES