Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40597 

documents filed in connection with this 

investigation are or will be available for 

inspection during official business 

hours (8:45 a.m. to 5:15 p.m.) in the 

Office of the Secretary, U.S. 

International Trade Commission, 500 E 

Street SW., Washington, DC 20436, 

telephone (202) 205–2000. General 

information concerning the Commission 

may also be obtained by accessing its 

Internet server at https://www.usitc.gov. 

The public record for this investigation 

may be viewed on the Commission’s 

electronic docket (EDIS) at https://

edis.usitc.gov. Hearing-impaired 

persons are advised that information on 

this matter can be obtained by 

contacting the Commission TDD 

terminal on (202) 205–1810. 

SUPPLEMENTARY INFORMATION: The 

Commission instituted this investigation 

on January 24, 2017, based on a 

complaint filed by Sony Corporation of 

Tokyo, Japan; Sony Storage Media and 

Devices Corporation of Tagajo, Japan 

(‘‘SSMD’’); Sony DADC US Inc. of Terre 

Haute, Indiana; and Sony Latin America 

Inc. of Miami, Florida (collectively, 

‘‘Sony’’), alleging a violation of section 

337 of the Tariff Act of 1930, as 

amended, 19 U.S.C. 1337 (‘‘section 

337’’). 82 FR 8209–10 (Jan 24, 2017). 

The complaint, as supplemented, 

alleges violations of section 337 by 

reason of infringement of certain claims 

of U.S. Patent Nos. 6,345,779; 6,896,959; 

7,016,137; and 7,115,331 (collectively, 

‘‘the patents-in-suit’’). The complaint 

further alleges that an industry in the 

United States exists as required by 

subsection (a)(2) of section 337. The 

notice of investigation names as 

respondents Fujifilm Holdings 

Corporation and Fujifilm Corporation 

both of Tokyo, Japan; Fujifilm Holdings 

America Corporation of Valhalla, New 

York; and Fujifilm Recording Media 

U.S.A., Inc. of Bedford, Massachusetts 

(collectively, ‘‘Fujifilm’’). Id. at 8210. 

The Office of Unfair Import 

Investigations is also named as a party. 

Id. 

On July 28, 2017, Sony filed a motion 

for leave to amend the complaint and 

notice of investigation to reflect a 

corporate reorganization of SSMD. 

Specifically, Sony seeks to replace the 

entity SSMD with two distinct entities: 

‘‘Sony Storage Media Solutions’’ and 

‘‘Sony Storage Media Manufacturing 

Corporation.’’ Sony submits that the 

reorganization did not affect the 

ownership of the patents-in-suit. Sony 

stated that its motion is unopposed by 

Fujifilm or OUII. 

On August 4, 2017, the ALJ issued the 

subject ID, granting Sony’s motion 

pursuant to Commission rule 

210.14(b)(1). The ID finds that Sony has 

shown good cause to amend the 

complaint and notice of investigation to 

reflect the corporate reorganization of 

SSMD. The ID further finds no evidence 

that these amendments would harm the 

public interest or prejudice any party to 

this investigation. 

No petitions for review were filed and 

the Commission has determined not to 

review the subject ID. 

The authority for the Commission’s 

determination is contained in section 

337 of the Tariff Act of 1930, as 

amended (19 U.S.C. 1337), and in Part 

210 of the Commission’s Rules of 

Practice and Procedure (19 CFR part 

210). 

By order of the Commission. 

Issued: August 22, 2017. 

William R. Bishop, 

Supervisory Hearings and Information 

Officer. 

[FR Doc. 2017–18044 Filed 8–24–17; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. DIRECTV Group 

Holdings, LLC, et al.; Public Comment 

and Response on Proposed Final 

Judgment 

Pursuant to the Antitrust Procedures 

and Penalties Act, 15 U.S.C. 16(b)–(h), 

the United States hereby publishes 

below the comment received on the 

proposed Final Judgment in United 

States v. DIRECTV Group Holdings, 

LLC, et al., Case No. 2:16–cv–08150– 

MWF–E (C.D. Cal.), together with the 

Response of the United States to Public 

Comment. 

Copies of the comment and the 

United States’ Response are available for 

inspection at the Department of Justice 

Antitrust Division, 450 Fifth Street NW., 

Suite 1010, Washington, DC 20530 

(telephone: 202–514–2481), on the 

Department of Justice’s Web site at 

https://www.justice.gov/atr/case/us-vdirectv-group-holdings-llc-and-att-inc, 

and at the Office of the Clerk of the 

United States District Court for the 

Central District of California (Western 

Division), 312 N. Spring Street, Los 

Angeles, CA 90012. Copies of any of 

these materials may also be obtained 

upon request and payment of a copying 

fee. 

Patricia A. Brink, 

Director of Civil Enforcement. 

FREDERICK S. YOUNG (DC Bar No. 

421285) 

frederick.young@usdoj.gov 

U.S. DEPARTMENT OF JUSTICE 

ANTITRUST DIVISION 

450 5th Street NW. 

Washington, DC 20530 

Telephone: 202–307–2869 

Facsimile: 202–514–6381 

Counsel for Plaintiff, 

UNITED STATES OF AMERICA 

United States District Court for the 

Central District of California Western 

Division 

United States of America, Plaintiff, v. 

DIRECTV Group Holdings, LLC, et al., 

Defendants. 

Case No. 2:16–cv–08150–MWF–E 

Plaintiff United States’ Response to Public 

Comment on the Proposed Final Judgment 

Judge: Hon. Michael W. Fitzgerald 

Pursuant to the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. § 16(b)–(h) (‘‘APPA’’ or 

‘‘Tunney Act’’), the United States 

hereby files the single public comment 

received concerning the proposed Final 

Judgment in this case and the United 

States’ response to the comment. After 

careful consideration of the submitted 

comment, the United States continues to 

believe that the proposed Final 

Judgment provides an effective and 

appropriate remedy for the antitrust 

violations alleged in the Complaint. The 

United States will move the Court for 

entry of the proposed Final Judgment 

after the public comment and this 

Response have been published in the 

Federal Register pursuant to 15 U.S.C. 

§ 16(d). 

I. PROCEDURAL HISTORY 

On November 2, 2016, the United 

States filed a civil antitrust Complaint 

alleging that DIRECTV acted as the 

ringleader of a series of unlawful 

information exchanges between 

DIRECTV and three of its competitors— 

Cox Communications, Inc., Charter 

Communications, Inc. and AT&T (prior 

to its acquisition of DIRECTV)—during 

the companies’ parallel negotiations to 

carry SportsNet LA, which holds the 

exclusive rights to telecast almost all 

live Dodgers games in the Los Angeles 

area. The Complaint alleges that 

DIRECTV unlawfully exchanged 

competitively sensitive information 

with Cox, Charter and AT&T during the 

companies’ negotiations for the right to 

telecast SportsNet LA (the ‘‘Dodgers 

Channel’’). In 2015, Defendant AT&T 

acquired DIRECTV, and AT&T was 

included as a defendant in this action as 

DIRECTV’s successor in interest. 

The United States and Defendants 

subsequently reached a settlement and, 

on March 23, 2017, the United States 

filed a Stipulation and Order and 

proposed Final Judgment (ECF Nos. 31 


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1MVPD is an industry acronym standing for 

multichannel video programming distributor, and it 

applies to a variety of providers of pay television 

services, including satellite companies (such as 

DIRECTV and DISH Network), cable companies 

(such as Cox and Charter), and telephone 

companies (such as AT&T and Verizon). 

and 31–1). The Court entered the 

Stipulation and Order on March 27, 

2017 (ECF No. 35). The proposed Final 

Judgment, if entered by the Court, 

would remedy the violation alleged in 

the Complaint by prohibiting 

Defendants from sharing or seeking to 

share competitively sensitive 

information with competing video 

distributors. Such information includes 

without limitation ‘‘non-public 

information relating to negotiating 

position, tactics or strategy, video 

programming carriage plans, pricing or 

pricing strategies, costs, revenues, 

profits, margins, output, marketing, 

advertising, promotion or research and 

development.’’ Proposed Final 

Judgment at 3 (ECF 31–1). At the same 

time, the United States filed a 

Competitive Impact Statement (‘‘CIS’’) 

(ECF No. 32), which explains how the 

proposed Final Judgment is designed to 

remedy the harm that resulted from 

Defendants’ conduct. 

As required by the Tunney Act, the 

United States published the proposed 

Final Judgment and CIS in the Federal 

Register on April 13, 2017. See 82 FR 

17859. In addition, a summary of the 

terms of the proposed Final Judgment 

and CIS, together with directions for the 

submission of written comments, was 

published in both The Los Angeles 

Times and The Washington Post for 

seven days between April 6 and April 

14, 2017. The 60-day period for public 

comment ended on June 13, 2016. The 

United States received one comment, 

which is described below and attached 

as Exhibit 1. 

II. THE INVESTIGATION AND THE 

PROPOSED SETTLEMENT 

The proposed Final Judgment is the 

culmination of almost two years of 

investigation and litigation by the 

Antitrust Division of the United States 

Department of Justice (‘‘Department’’). 

The Department conducted a 

comprehensive inquiry into the conduct 

of DIRECTV and the other companies 

involved to determine the facts of what 

occurred and the impact of that conduct 

on competition. The Department 

collected more than 100,000 business 

documents from DIRECTV and others, 

conducted numerous interviews of 

individuals and companies with 

potentially relevant information, 

obtained deposition testimony from a 

number of individuals, including those 

involved in the relevant 

communications, and required the 

Defendants to provide interrogatory 

responses explaining DIRECTV’s 

conduct and any potential justifications 

for that conduct. 

As a result of this detailed 

investigation, the United States alleged 

in the Complaint that DIRECTV was the 

ringleader of information-sharing 

agreements with three different rivals 

and that DIRECTV and these rivals 

agreed to and did exchange non-public 

information about each company’s 

ongoing negotiations to telecast the 

Dodgers Channel, as well as each 

company’s future plans to carry—or not 

carry—the channel. The Complaint also 

alleges that each company engaged in 

this conduct in order to obtain 

bargaining leverage and reduce the risk 

that a rival would choose to carry the 

Dodgers Channel (while the company 

did not), resulting in a loss of 

subscribers to that rival. The Complaint 

further alleges that the information 

learned through these unlawful 

agreements was a material factor in each 

company’s decision not to carry the 

Dodgers Channel, harming the 

competitive process for carriage of the 

Dodgers Channel and making it less 

likely that any of these companies 

would reach a deal because they no 

longer had to fear that a decision to 

refrain from carriage would result in 

subscribers switching to a competitor 

that offered the channel. 

The Complaint alleges that these 

agreements amounted to a restraint of 

trade in violation of Section 1 of the 

Sherman Act, which outlaws ‘‘[e]very 

contract, combination in the form of 

trust or otherwise, or conspiracy, in 

restraint of trade or commerce among 

the several States.’’ 15 U.S.C. 1. The 

Complaint seeks injunctive relief to 

prevent DIRECTV and AT&T from 

sharing non-public information with 

any other multichannel video 

programming distributor (‘‘MVPD’’) 1

about a variety of competitively 

sensitive topics concerning potential 

video programming distribution 

agreements. 

The proposed Final Judgment is 

designed to remedy the anticompetitive 

conduct identified in the Complaint. As 

explained in greater detail in the CIS, 

Section IV of the proposed Final 

Judgment provides that Defendants will 

not, directly or indirectly, communicate 

a broad array of competitively sensitive, 

non-public strategic information (such 

as negotiating strategy, carriage plans, or 

pricing) to any MVPD, will not request 

such information from any MVPD, and 

will not encourage or facilitate the 

communication of such information 

from any MVPD. At the same time, 

Section IV makes clear that the 

proposed Final Judgment does not 

prohibit Defendants from sharing or 

receiving competitively sensitive 

strategic information in certain specified 

circumstances. The Final Judgment also 

requires Defendants to designate an 

Antitrust Compliance Officer, who is 

responsible for implementing training 

and antitrust compliance programs and 

achieving full compliance with the 

Final Judgment. This compliance 

program is necessary considering the 

extensive communications among rival 

executives that facilitated Defendants’ 

agreements. The Defendants will be 

subject to these compliance obligations 

throughout the five-year term of the 

proposed Final Judgment. 

The terms of the proposed Final 

Judgment closely track the relief sought 

in the Complaint and are intended to 

provide a prompt, certain and effective 

remedy to ensure that Defendants and 

their executives will not impede 

competition by sharing competitively 

sensitive information with their 

counterparts at rival MVPDs. The 

requirements and prohibitions provided 

for in the proposed Final Judgment will 

terminate Defendants’ illegal conduct, 

prevent recurrence of the same or 

similar conduct in the future, and 

ensure that Defendants establish a 

robust antitrust compliance program. 

The proposed Final Judgment protects 

consumers by putting a stop to the 

anticompetitive information sharing 

alleged in the Complaint, while 

permitting certain potentially beneficial 

collaborations and transactions as 

described in detail in the CIS. 

III. SUMMARY OF PUBLIC COMMENT 

AND RESPONSE OF THE UNITED 

STATES 

During the 60-day public comment 

period, the United States received one 

comment, from Joe Macera. Mr. Macera 

stated that, in his opinion, the fact that 

this case was filed also shows that 

collusion has occurred between 

DIRECTV and the owner of the Dodgers 

Channel, Time Warner Cable. Mr. 

Macera called for a separate suit against 

Time Warner Cable for unfair business 

practices and stated that this settlement 

should include additional relief in the 

form of either a fine against DIRECTV or 

a requirement that DIRECTV telecast 

live Dodgers games. 

The United States appreciates 

receiving Mr. Macera’s comment. The 

United States conducted a 

comprehensive investigation of the 

companies involved in the 

communications detailed in the 


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2The 2004 amendments substituted ‘‘shall’’ for 

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

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

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

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

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

Complaint. Based on that investigation, 

and as recounted in the Complaint, the 

United States concluded that DIRECTV 

had agreed with its rival MVPDs to 

share competitively sensitive 

information about their plans to carry 

the Dodgers Channel. The Complaint 

did not allege that Time Warner Cable 

was involved in the alleged illegal 

information sharing agreements, and the 

Complaint does not draw any 

conclusions about Time Warner Cable’s 

conduct. 

It is well-settled that comments that 

are unrelated to the concerns identified 

in the Complaint are beyond the scope 

of this Court’s Tunney Act review. See, 

e.g., United States v. SBC Commc’ns, 

Inc., 489 F. Supp. 2d 1, 14 (D.D.C. 2007) 

(explaining that ‘‘a district court is not 

permitted to ‘reach beyond the 

complaint to evaluate claims that the 

government did not make and to inquire 

as to why they were not made’ ’’ 

(quoting United States v. Microsoft 

Corp., 56 F.3d 1448, 1459 (D.C. Cir. 

1995))); see also United States v. U.S. 

Airways Group, Inc., 38 F. Supp. 3d 69, 

76 (D.D.C. 2014) (‘‘A court may not 

‘construct its own hypothetical case and 

then evaluate the decree against that 

case.’ ’’ (quoting Microsoft, 56 F.3d at 

1459)). Accordingly, the portion of Mr. 

Macera’s comment addressed to Time 

Warner Cable’s conduct does not 

provide a basis for rejecting the 

proposed Final Judgment. 

Mr. Macera also called for additional 

relief beyond that included in the 

proposed Final Judgment, such as a 

financial penalty or a requirement that 

DIRECTV carry Dodgers telecasts. The 

Sherman Act, however, does not 

provide for civil penalties or civil fines. 

The injunctive relief sought by the 

Complaint has been obtained in the 

proposed Final Judgment, which fulfills 

the remedial goals of the Sherman Act 

to ‘‘prevent and restrain’’ antitrust 

violations. See 15 U.S.C. § 4 (investing 

district courts with equitable 

jurisdiction to ‘‘prevent and restrain’’ 

violations of the antitrust laws). No 

additional relief is needed to prevent 

and restrain DIRECTV from entering 

into information-sharing agreements 

such as those alleged in the Complaint. 

The United States’ Complaint in this 

action also did not seek a requirement 

that any MVPD carry the Dodgers 

telecasts. Similarly, and as explained in 

the CIS, the proposed Final Judgment is 

not intended to compel any MVPD to 

reach an agreement to carry any 

particular video programming, 

including the Dodgers Channel. 

Negotiations between video 

programmers and MVPDs are often 

contentious, high-stakes undertakings 

where one or both sides threaten to walk 

away, or even temporarily terminate the 

relationship in order to secure a better 

deal. The proposed Final Judgment is 

not intended to address such negotiating 

tactics, or to impose any agreement 

upon Time Warner Cable or any MVPD 

that is not the result of an unfettered 

negotiation in the marketplace. Rather, 

the Final Judgment is intended to 

protect the competitive process for 

acquiring video programming from 

being corrupted by improper 

information sharing among rivals and to 

prevent harm to consumers when such 

collusion taints that competitive process 

and makes carriage on competitive 

terms less likely. 

IV. STANDARD OF JUDICIAL REVIEW 

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). 

‘‘The APPA was enacted in 1974 to 

preserve the integrity of and public 

confidence in procedures relating to 

settlements via consent decree 

procedures.’’ United States v. BNS Inc., 

858 F.2d 456, 459 (9th Cir. 1988) (noting 

that the APPA ‘‘mandates public notice 

of a proposed consent decree, a 

competitive impact statement by the 

government, a sixty-day period for 

written public comments, and 

published responses to the comments’’ 

(citations omitted)). In making that 

‘‘public interest’’ determination, the 

Court, in accordance with the statute as 

amended in 2004, is required to 

consider: 

(A) the competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) the impact of entry of such 

judgment upon competition in the 

relevant market or markets, upon the 

public generally and individuals 

alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. § 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

Court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ Microsoft, 56 F.3d at 

1461; see generally SBC Commc’ns, 489 

F. Supp. 2d 1 (assessing public interest 

standard under the Tunney Act); U.S. 

Airways, 38 F. Supp. 3d at 75 

(explaining that the ‘‘court’s inquiry is 

limited’’ in Tunney Act settlements); 

United States v. InBev N.V./S.A., No. 

08–1965, 2009 U.S. Dist. LEXIS 84787, 

at *3 (D.D.C. Aug. 11, 2009) (noting that 

the court’s review of a consent judgment 

is limited and only inquires ‘‘into 

whether the government’s 

determination that the proposed 

remedies will cure the antitrust 

violations alleged in the complaint was 

reasonable, and whether the 

mechanisms to enforce the final 

judgment are clear and manageable’’).2

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; see also BNS, 858 F.2d 

at 462–63 (‘‘[T]he APPA does not 

authorize a district court to base its 

public interest determination on 

antitrust concerns in markets other than 

those alleged in the government’s 

complaint.’’); United States v. Nat’l 

Broad. Co., 449 F. Supp. 1127, 1144 

(C.D. Cal.1978) (‘‘[I]n evaluating a 

proposed consent decree, one highly 

significant factor is the degree to which 

the proposed decree advances and is 

consistent with the government’s 

original prayer for relief.’’ (citation 

omitted)). 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.’’ BNS, 858 

F.2d at 462 (quoting United States v. 

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

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

at 1458–62; United States v. Alcoa, Inc., 

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

InBev, 2009 U.S. Dist. LEXIS 84787, at 

*3. As the Ninth Circuit has explained: 

[t]he balancing of competing social 

and political interests affected by a 


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3Cf. 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’’); Nat’l Broad. Co., 449 F. Supp. at 1142 

(under the APPA, ‘‘a court’s power to do very much 

about the terms of a particular decree, even after it 

has given the decree maximum, rather that 

minimum, judicial scrutiny, is a decidedly limited 

power’’ (citation omitted)); 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’ ’’). 

4See also U.S. Airways, 38 F. Supp. 3d at 75 

(noting that ‘‘room must be made for the 

government to grant concessions in the negotiation 

process for settlements’’ (quoting SBC Commc’ns, 

489 F. Supp. 2d at 1461) (citing Microsoft, 56 F.3d 

at 1461)); United States v. Alcan Aluminum Ltd., 

605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving 

consent decree even though the court would have 

imposed a greater remedy). 

5See also United States v. Mid-Am. Dairymen, 

Inc., No. 73–CV–681–W–1, 1977 U.S. Dist. LEXIS 

15858, at *22 (W.D. Mo. May 17, 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, 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.’’). 

proposed antitrust consent decree must 

be left, in the first instance, to the 

discretion of the Attorney General. See 

United States v. Nat’l Broad. Co., 449 F. 

Supp. 1127 (C.D. Cal. 1978). 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) (additional citations omitted).3

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 U.S. Airways, 38 F. Supp. 3d at 75 

(noting that a court should not reject the 

proposed remedies because it believes 

others are preferable); 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-Daniels-Midland 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).4 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 (citation omitted). 

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; see also U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 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 15.5

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); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This is 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 Sen. 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. ‘‘A court can make its 

public interest determination based on 

the competitive impact statement and 

response to public comments alone.’’ 

U.S. Airways, 38 F. Supp. 3d at 76 

(citation omitted). 

CONCLUSION 

After reviewing the public comment, 

the United States continues to believe 

that the proposed Final Judgment, as 

drafted, provides an effective and 

appropriate remedy for the antitrust 

violations alleged in the Complaint, and 

is therefore in the public interest. The 

United States will move this Court to 

enter the proposed Final Judgment after 

the comment and this response are 

published in the Federal Register. 

Dated: August 10, 2017. 

Respectfully submitted, 

PLAINTIFF UNITED STATES OF AMERICA 

By: /s/FREDERICK S.YOUNG 

FREDERICK S. YOUNG, 

Attorney for the United States, U.S. 

Department of Justice, Antitrust Division, 450 

5th Street NW., Washington, DC 20530, 

Telephone: 202–307–2869, Facsimile: 202– 

514–6381, Email: frederick.young@usdoj.gov. 

Exhibit 1 

From: Joe Macera 

To: ATR-Antitrust—Internet 

Subject: AT&T and DirecTV Case 

Settlement 

Date: Friday, March 24, 2017 12:10:45 

p.m. 

I am very disappointed with the DOJ 

decision to settle the AT&T and DirecTV 

case without affirmative action to end 


sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40601 

the blackout of Dodger games. In my 

opinion collusion has occurred between 

DirecTV and Time Warner Cable (TWC) 

which was apparent in the filing of this 

case. The sharing of inside, confidential 

information between the parties has put 

TWC in the position to control their 

monopoly for the broadcast of Dodger 

games by knowing where all the 

competitors stand, giving them an unfair 

advantage in their negotiations. A 

settlement in favor of the public would 

be punishment of the parties either 

through a fine or requirement to carry 

the broadcasts and a separate suit 

against TWC for unfair business 

practices. 

Joe Macera 

Email: 

Work Cell: 

Personal Cell: 

[FR Doc. 2017–18091 Filed 8–24–17; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Binh M. Chung, M.D.; Decision and 

Order 

On June 29, 2017, the Acting 

Assistant Administrator, Diversion 

Control Division, issued an Order to 

Show Cause to Binh M. Chung, M.D. 

(hereinafter, Registrant), of Las Vegas, 

Nevada. The Show Cause Order 

proposed the revocation of Registrant’s 

Certificate of Registration and the denial 

of any pending application to renew his 

registration or for a new registration, on 

the grounds that: (1) He ‘‘ha[s] been 

convicted of a felony relating to a 

controlled substance’’; (2) he ‘‘do[es] not 

have authority to handle controlled 

substances in . . . Nevada, the [S]tate in 

which [he is] registered’’; and (3) he 

‘‘ha[s] committed acts which render 

[his] registration inconsistent with the 

public interest.’’ GX 2, at 1 (citing 21 

U.S.C. 824(a)(2), (3), & (4)). 

With respect to the Agency’s 

jurisdiction, the Show Cause Order 

alleged that Registrant holds Certificate 

of Registration No. BC9308936, which 

‘‘is valid for Drug Schedules II–V,’’ at 

the address of ‘‘8785 Warm Springs 

Rd.[,] Suite 109, Las Vegas, NV.’’ Id. The 

Order also alleged that his registration 

‘‘expires . . . on August 31, 2017.’’ Id. 

As to the substantive grounds for the 

proceeding, the Show Cause Order 

alleged that ‘‘[o]n May 22, 2017, 

[Registrant was] found guilty of 

engaging in a scheme related to [his] 

administering ketamine to sedate 

patients and then raping them in [his] 

medical office.’’ Id. The Order alleged 

that Registrant was found guilty in state 

court of ‘‘multiple sexual assault counts 

and multiple counts of the 

administering of a controlled substance 

to aid in the commission of a felony.’’ 

Id. The Order then asserted that ‘‘[t]his 

constitutes a conviction related to 

controlled substances under 21 U.S.C. 

824(a)(2)’’ and ‘‘acts which are 

inconsistent with the public interest.’’ 

Id. (citing 21 U.S.C. 824(a)(4) & 

823(f)(5)). 

The Show Cause Order further alleged 

that on June 23, 2015, Registrant’s 

medical license ‘‘was summarily 

suspended’’ by the Nevada Board of 

Medical Examiners and that he 

‘‘currently lack[s] authority to handle 

controlled substances in Nevada, the 

[S]tate in which [he is] registered with 

the’’ Agency. Id. The Order thus 

asserted that Registrant’s ‘‘lack of 

authority to handle controlled 

substances in Nevada is a separate and 

independent ground to revoke [his] 

registration.’’ Id. (citing 21 U.S.C. 

802(21) and 824(a)(3)). 

The Show Cause Order notified 

Registrant of his right to request a 

hearing on the allegations or to submit 

a written statement while waiving his 

right to a hearing, the procedure for 

electing either option, and the 

consequence of failing to elect either 

option. Id. at 2–3 (citing 21 CFR 

1301.43). Finally, the Show Cause Order 

notified Registrant of his right to submit 

a Corrective Action Plan. Id. at 3 (citing 

21 U.S.C. 824(c)(2)(C)). 

On June 29, 2017, a DEA Diversion 

Investigator personally served the Show 

Cause Order on Registrant who was then 

incarcerated at the Clark County 

Detention Center, Las Vegas, Nevada. 

GX 3, at 2. According to the 

Government, as of August 15, 2017, 

Registrant had not requested a hearing 

nor submitted a written statement in 

lieu of requesting a hearing. 

Supplemental Request for Final Agency 

Action, at 2; see also Supplemental 

Declaration of Diversion Investigator, at 

1. The Government further represents 

that Registrant has not submitted a 

Corrective Action Plan. See 

Supplemental Request for Final Agency 

Action, at 2; see also Supplemental 

Declaration of Diversion Investigator, at 

1–2. 

On July 31, 2017, the Government 

submitted a Request for Final Agency 

Action (RFAA) and an investigative 

record, and on August 16, 2017, it 

submitted a Supplemental Request for 

Final Agency Action. Therein, the 

Government seeks revocation of 

Registrant’s registration pursuant to 

each of the three grounds set forth 

above. 

Based on the Government’s 

submission, I find that more than 30 

days have now passed since the Show 

Cause Order was served on Registrant, 

and that neither Registrant, nor anyone 

purporting to represent him, has 

requested a hearing on the allegations or 

submitted a written statement in lieu of 

hearing. I therefore find that Registrant 

has waived his right to request a hearing 

or to submit a written statement and 

issue this Decision and Order based on 

relevant evidence in the investigative 

record. See 21 CFR 1301.43(d) & (e). 

Having reviewed the record, I conclude 

that the Government is entitled to relief 

only on the loss of state authority 

ground. I make the following factual 

findings. 

Findings 

Registrant is the holder of DEA 

Certificate of Registration No. 

BC9308936, pursuant to which he is 

authorized to dispense controlled 

substances in schedules II through V as 

a practitioner, at the registered address 

of 8785 W. Warmsprings Rd., Suite 109, 

Las Vegas, Nevada. GX 1. This 

Registration expires on August 31, 2017. 

Id. 

Registrant also holds a medical 

license issued by the Nevada State 

Board of Medical Examiners. GX 3B 

(Order of Summary Suspension & 

Notice of Hearing). However, on June 

23, 2015, the Board’s Investigative 

Committee immediately suspended his 

medical license based on ‘‘preliminary 

findings’’ that Registrant ‘‘injected a 

minor female [patient] with a 

medication that caused her to become 

groggy’’ and proceeded ‘‘to abuse her.’’ 

Id. at 2. While the Board’s Order set a 

hearing for July 27, 2015 ‘‘to determine 

whether [the] suspension may 

continue,’’ according to the Board’s Web 

site, of which I take official notice, see 

5 U.S.C. 556(e), the suspension remains 

in effect as of the date of this Order. I 

therefore find that Registrant is not 

currently authorized to dispense 

controlled substances under the laws of 

Nevada. 

On May 2, 2017, a Third Amended 

Indictment was issued in the criminal 

proceeding brought by the State of 

Nevada against Registrant. GX 3A, at 1. 

The indictment charged Registrant with, 

inter alia, four counts of sexual assault; 

one count of battery with intent to 

commit a sexual assault; one count of 

attempted sexual assault; and four 

counts of administering controlled 

substances including ketamine and/or 

midazolam, to aid in the commission of 

a felony (sexual assault and/or a 

kidnapping). Id. at 2–5. On May 22, 

2017, following a trial, a jury found 


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