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identification of the human remains as determined that, pursuant to 25 U.S.C. days from the date of publication of this Native American is consistent with 3001 (2), there is a relationship of Notice. Please address comments to observed burial practices, such as a shared group identity that can be Joshua M. Levin, Senior Trial Attorney, burial in a pit without evidence of a reasonably traced between the Native U.S. Department of Justice, Environment coffin, the lack of buttons or other American human remains and the Little and Natural Resources Division, artifacts indicative of Euro-American Traverse Bay Bands of Odawa Indians, Environmental Defense Section, P.O. clothing, and morphological Michigan. Box 23986, Washington, DC 20026– characteristics. Representatives of any other Indian 3986, and refer to United States of Mackinaw City is located on the south tribe that believes itself to be culturally America v. Mark and Amanda St. side of the Straits of Mackinac. During affiliated with the human remains Pierre, DJ # 90–5–1–1–17229/1. this period, the French had missions, should contact Barbara Mead, Michigan The proposed Consent Decree may be traders, and a military presence at the Historical Center, P.O. Box 30740, examined at the Clerk’s Office, United Straits. During the late 17th and early Lansing, MI 48909–8240, telephone States District Court for the District of 18th century, the Odawa were known to (517) 373–6416, before October 10, Vermont, Federal Bldg, 5th Floor, 11 inhabit both sides of the Straits, as 2008. Repatriation of the human Elmwood Avenue, Burlington, VT documented by French missionary and remains to the Little Traverse Bay Band 05401. In addition, the proposed military records. At this time, Huron/ of Odawa Indians, Michigan may Consent Decree may be viewed at Wyandotte refugees, fleeing attacks by proceed after that date if no additional http://www.usdoj.gov/enrd/ the Iroquois, also lived on the north side claimants come forward. Consent_Decrees.html. of the Straits, at present day St. Ignace. The Michigan Historical Center is The Sault Ste. Marie Tribe of Chippewa Scott A. Schachter, responsible for notifying the Little Assistant Section Chief, Environmental Indians resided on the north side of the Traverse Bay Bands of Odawa Indians, Straits as well. A band of Chippewa was Defense Section, Environment and Natural Michigan; Sault Ste. Marie Tribe of Resources Division. reported at times in the Cheboygan area. Chippewa Indians of Michigan; and Other tribes were known to pass [FR Doc. E8–20987 Filed 9–9–08; 8:45 am] Wyandotte Nation, Oklahoma that this BILLING CODE 4410–CW–P through the area, often stopping to notice has been published. trade. Although the tribal affiliation of the human remains found at Mackinaw Dated: August 20, 2008 DEPARTMENT OF JUSTICE City is not scientifically certain, the Sherry Hutt, remains are likely culturally affiliated Manager, National NAGPRA Program. Antitrust Division with the Odawa, as they were the tribe [FR Doc. E8–21009 Filed 9–9–08; 8:45 am] most commonly reported in the BILLING CODE 4312–50–S United States v. Raycom Media, Inc.; Mackinaw City area during the period in Proposed Final Judgment and question. The Odawa who lived at what Competitive Impact Statement is now Mackinaw City moved to Little DEPARTMENT OF JUSTICE Traverse Bay in the 1740s, and their Notice is hereby given pursuant to the descendants are members of the Little Notice of Lodging Proposed Consent Antitrust Procedures and Penalties Act, Traverse Bay Bands of Odawa Indians, Decree 15 U.S.C. 16(b)(h), that a proposed Final Michigan, based in what is now Emmet Judgment, Hold Separate Stipulation County. In accordance with Departmental and Order, and Competitive Impact The Village of Mackinaw City Policy, 28 CFR 50.7, notice is hereby Statement have been filed with the transferred the human remains found in given that a proposed Consent Decree in United States District Court for the the water main trench to the Michigan United States of America v. Mark and District of Columbia in United States of Historical Center with the Amanda St. Pierre, Civil Action No. America v. Raycom Media, Inc., Civil understanding that the Center would 1:08–cv–177 (D. Vt.), was lodged with Action No. 1:08–cv–01510. On August arrange for reburial after studies were the United States District Court for the 28, 2008, the United States filed a complete. The Center entered into District of Vermont on September 3, Complaint alleging that the acquisition consultation with the Little Traverse 2008. by Raycom Media, Inc. of WWBT–TV, a Bay Bands of Odawa Indians in the This proposed Consent Decree Richmond, Virginia, broadcast spring of 2008. The tribe has provided concerns a complaint filed by the television station, from Lincoln the Michigan Historical Center with United States against Mark and Amanda Financial Media Company violates documentation of their continuous St. Pierre, pursuant to sections 309(b), section 7 of the Clayton Act, 15 U.S.C. presence in the Straits of Mackinac area 309(d) and 404 of the Clean Water Act, 18. The proposed Final Judgment, filed for at least 350 years. The NAGPRA 33 U.S.C. 1319(b), 1319(d) and 1344, to the same time as the Complaint, coordinators of the Sault Ste. Marie obtain injunctive relief from and impose requires Raycom to divest its Richmond, Tribe of Chippewa Indians of Michigan civil penalties against the Defendants Virginia, broadcast television station and Wyandotte Nation, Oklahoma have for violating the Clean Water Act by WTVR–TV, along with certain related sent the Michigan Historical Center discharging pollutants without a permit assets. letters of support for repatriation of the into waters of the United States. The Copies of the Complaint, proposed human remains removed from proposed Consent Decree resolves these Final Judgment, and Competitive Impact Mackinaw City to the Little Traverse allegations by requiring the Defendants Statement are available for inspection at Bay Bands of Odawa Indians, Michigan. to restore the impacted areas and the Department of Justice, Antitrust Officials of the Michigan Historical perform mitigation and to pay a civil Division, Antitrust Documents Group, Center have determined that, pursuant penalty. The Consent Decree also 450 Fifth Street, NW., Suite 1010, to 25 U.S.C. 3001 (9–10), the human provides for the Defendants to perform Washington, DC 20530 (telephone: 202– remains described above represent the a supplemental environmental project. 514–2481), on the Department of physical remains of two individuals of The Department of Justice will accept Justice’s Web site (http:// Native American ancestry. Officials of written comments relating to this www.usdoj.gov/atr), and at the Office of the Michigan Historical Center also have proposed Consent Decree for thirty (30) the Clerk of the United States District

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Court for the District of Columbia. as an independent significant from network and syndicated television Copies of these materials may be competitor will substantially lessen advertising, which is sold by the major obtained from the Antitrust Division competition for the sale of broadcast television networks and producers of upon request and payment of the television spot advertising in the syndicated programs on a nationwide copying fee set by Department of Justice Richmond market, in violation of basis and broadcast in every market regulations. Section 7 of the Clayton Act, as where the network or syndicated Public comment is invited within 60 amended, 15 U.S.C. 18. program is aired. Spot advertising is days of the date of this notice. Such sold either directly by the station or I. Jurisdiction and Venue comments, and responses thereto, will through its national representative on a be published in the Federal Register 3. This Complaint is filed and this localized, market-by-market basis. and filed with the Court. Comments action is instituted under section 15 of 9. Broadcast television spot should be directed to John R. Read, the Clayton Act, as amended, 15 U.S.C. advertising possesses attributes that Chief, Litigation III, Antitrust Division, 25, to prevent and restrain Defendant collectively set it apart from advertising Department of Justice, Washington, DC from violating Section 7 of the Clayton using other types of media. Television 20530 (telephone: 202–307–0468). Act, 15 U.S.C. 18. combines sight, sound, and motion, 4. Raycom sells broadcast television thereby creating a memorable and Patricia Brink, spot advertising to advertisers, a effective advertisement. Moreover, of all Deputy Director, Office of Operations. commercial activity that substantially media, broadcast television spot United States District Court for the affects and is in the flow of interstate advertising reaches the largest District of Columbia commerce. This Court has jurisdiction percentage of all potential customers in over the subject matter of this action a particular desired target audience and United States of America, Department pursuant to sections 15 and 16 of the is therefore especially effective in of Justice, Antitrust Division, 450 5th Clayton Act, 15 U.S.C. 25, 26, and 28 introducing and establishing the image Street, NW., Suite 4000, Washington, DC U.S.C. 1331, 1337. of a product. A significant number of 20530, Plaintiff, 5. The Defendant has consented to advertisers view broadcast television v. personal jurisdiction and venue in this spot advertising as a necessary judicial district. advertising medium for which there is Raycom Media, Inc., RSA Tower, 20th no close substitute. Such customers Floor, 201 Monroe Street, Montgomery, II. The Defendant would not switch to another advertising AL 36104, Defendant. 6. Raycom Media, Inc. is a Delaware medium—such as radio, cable, internet, or newspaper—or some combination Civil Action No.: l:08–cv–01510 corporation with its headquarters in Montgomery, Alabama. thereof, if broadcast television spot Assigned To: Urbina, Ricardo M. 7. Raycom is one of the country’s advertising prices increased by a small Assign. Date: 08/28/2008 largest television broadcasters. It but significant amount. currently owns and/or operates forty-six 10. In the Richmond DMA, cable Description: Antitrust television stations in thirty-five markets television advertising is not a Complaint and eighteen states. Raycom also meaningful substitute for broadcast distributes syndicated television television spot advertising because the The United States of America, acting viewership of cable television networks, under the direction of the Attorney programming and provides event management, information system even when the networks are combined General of the United States, brings this and packaged together, is significantly civil action to obtain equitable relief support, and website design and hosting services. smaller than the viewership of broadcast against defendant Raycom Media, Inc. television stations and is more (‘‘Raycom’’), and complains and alleges III. Trade and Commerce demographically homogeneous. as follows: A. Relevant Product Market Additionally, unlike broadcast 1. The United States brings this suit television advertising, it is generally to prevent Raycom from continuing to 8. Broadcast television stations attract difficult for advertisers to place last own two of the top four broadcast viewers through their programming and minute advertisements on cable television stations in Richmond, then sell access to their viewers to television. Other media, such as radio, Virginia. On April 1, 2008, Raycom businesses and others that want to newspapers, internet or billboards, are consummated a transaction with advertise their products and services. even less desirable substitutes for Lincoln Financial Media Company Broadcast television programming is broadcast television advertising. (‘‘Lincoln’’), in which Raycom acquired transmitted by broadcast television Satellite television advertising is not a WWBT–TV, the Richmond, Virginia, stations, for free, over the air to substitute because satellite television affiliate of the National Broadcasting television receivers. Broadcast providers cannot limit the distribution Corporation (‘‘NBC’’) (the television programming is also of their advertisements to a particular ‘‘acquisition’’). Raycom at that time simultaneously retransmitted, as aired, DMA, and therefore do not sell already owned and continues to own by cable television systems (systems advertising in competition with local WTVR–TV, the Richmond, Virginia, that deliver programming, for a fee, broadcast television stations. affiliate of CBS Broadcasting Inc. through wires into homes), and satellite 11. Broadcast television stations (‘‘CBS’’). In 2007, WWBT–TV earned television systems (systems that deliver generally can identify advertisers with approximately 32 percent and WTVR– programming over the air, for a fee, to strong broadcast television advertising TV earned approximately 23 percent of home satellite receivers). Sales of ‘‘spot’’ preferences. Broadcast television the broadcast television spot advertising advertising generate the majority of a stations negotiate prices individually revenues in the Richmond market. broadcast television station’s revenues. with advertisers; consequently, 2. The acquisition eliminated Broadcast television spot advertising is broadcast television stations can charge substantial head-to-head competition purchased by advertisers that want to different advertisers different prices. In between WWBT–TV and WTVR–TV. target potential customers in specific the event of a price increase in Unless remedied, the loss of WWBT–TV localized geographic markets. It differs broadcast television spot advertising,

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some advertisers may shift some of their 17. Broadcast station ownership in the IV. Violation Alleged advertising to other media rather than Richmond DMA is highly concentrated. 20. Each and every allegation in absorb a price increase. However, the Unremedied, Raycom’s acquisition of paragraphs I through 19 of this existence of such advertisers would not WWBT–TV would give it control of two Complaint is here realleged with the prevent broadcast television stations of the top four broadcast stations in the same force and effect as though said from profitably raising prices by a small Richmond DMA and sales of over 50 paragraphs were here set forth in full. but significant amount for a substantial percent of the total broadcast television 21. The effect of Raycom’s acquisition number of advertisers that would not spot advertising revenues in the of WWBT–TV would be to substantially shift to other media or broadcast Richmond DMA. Using a measure of lessen competition in interstate trade television stations. concentration called the Herfindahl-F- and commerce, in violation of Section 7 12. Accordingly, the sale of broadcast lirschnian Index (‘‘HHI’’), defined and of the Clayton Act. television spot advertising is a relevant explained in Appendix A, combining 22. Raycom’s acquisition of WWBT– product market within the meaning of the ownership of WWBT–TV and TV will likely have the following section 7 of the Clayton Act. WTVR–TV substantially increases the effects, among others: B. Relevant Geographic Market HHI from approximately 2400 to approximately 3800, well above the a. Competition in the sale of broadcast 13. A Designated Marketing Area 1800 threshold at which the Division television spot advertising in the (‘‘DMA’’) is a non-overlapping normally considers a market to be Richmond DMA would be substantially geographic area defined by A. C. Nielsen highly concentrated. lessened; Company, a firm that surveys television b. Actual and potential competition viewers and furnishes television 18. Prior to the transaction, WWBT– between WWBT–TV and WTVR–TV in stations, advertisers, and advertising TV, the local NBC affiliate, and WTVR– the sale of broadcast television spot agencies with data to aid in evaluating TV, the local CBS affiliate, competed advertising in the Richmond DMA audience size and composition. The vigorously for advertisers because the would be eliminated; and demographic makeup of their viewers Richmond DMA encompasses the city of c. The prices for broadcast television makes them close substitutes for a Richmond. Virginia, and the spot advertising in the Richmond DMA significant number of advertisers. The surrounding counties in which stations would likely increase. two stations competed head-to-head for within the Richmond DMA receive the 23. Unless restrained, the acquisition a substantial number of advertisers largest share of viewers. will violate Section 7 of the Clayton Act, seeking a desired audience, forcing the 14. Advertisers use broadcast as amended, 15 U.S.C. 18. television stations within the Richmond stations to offer better terms to win an DMA to reach the largest possible advertiser’s business. These advertisers V. Requested Relief would find it difficult or impossible to number of viewers within the entire 24. Plaintiff requests: obtain competitive rates with the threat DMA. Advertising on television stations a. That Raycom’s acquisition of to ‘‘buy around’’ WWBT–TV and outside the Richmond DMA is not an WWBT–TV be adjudged to violate WTVR–TV, because they would be effective alternative for these advertisers Section 7 of the Clayton Act, as unable to as effectively reach their because such stations are not viewed by amended, 15 U.S.C. 18; desired audiences without purchasing a significant number of potential b. That Raycom be ordered to divest advertising from Raycom’s stations. customers within the Richmond DMA. WTVR–TV in accord with the attached Thus, without divestiture of one of its Thus, if there were a small but Hold Separate Stipulation and Order Richmond stations, Raycom’s significant price increase in broadcast and proposed Final Judgment; television spot advertising prices within acquisition of WWBT–TV substantially reduces competition for broadcast c. That a proposed Final Judgment the Richmond DMA, an insufficient giving effect to the divestiture be number of advertisers would switch television spot advertising in the Richmond DMA. entered by the Court after compliance their advertising time purchases to with the Antitrust Procedures and television stations outside the D. Entry Penalties Act, 15 U.S.C. 16; Richmond DMA to render the price 19. De novo entry into the Richmond d. That the United States be awarded increase unprofitable. the costs of this action; and 15. Accordingly, the Richmond DMA DMA is unlikely, because the Federal Communications Commission (‘‘FCC’’) e. That the United States be granted is a relevant geographic market for the such other and further relief as the sale of broadcast television spot regulates entry through the issuance of licenses. These licenses are difficult to Court may deem just and proper. advertising within the meaning of Dated: August 28, 2008. section 7 of the Clayton Act. obtain because the availability of Respectfully submitted, spectrum is limited, and the regulatory For Plaintiff United States: C. Anticompetitive Effects process associated with obtaining a 16. Broadcast television stations license is lengthy. Even if a new signal Deborah A. Garza, Acting Assistant Attorney General. compete for advertisers by providing became available, commercial success advertisers access to their viewers. A would come, at best, over a period of Ann Marie Blaylock (D.C. Bar No. 967825), Trial Attorney, Litigation III Section, station attracts viewers by selecting many years, because all major broadcast Antitrust Division, United States shows that appeal to the greatest networks are already affiliated with a Department of Justice, 450 Fifth Street, number of viewers, and also tries to licensee in the Richmond DMA, the NW., Suite 4000, Washington, DC 20530, differentiate itself from other stations by contracts last for many years, and the (202) 616–5932, Facsimile: (202) 514–7308, appealing to specific demographic broadcast networks rarely switch [email protected]. groups. Advertisers, in turn, are licensees when the contracts expire. Patricia A. Brink, interested in using broadcast television Thus, entry into the Richmond DMA Deputy Director, Office of Operations. spot advertising to reach a large broadcast television spot advertising John R. Read (D.C. Bar No. 419373), audience, as well as to reach a high market would not be timely, likely, or Chief, Litigation III Section, proportion of the type of viewers that sufficient to deter Raycom from Nina B. Hale, are most likely to buy their products. unilaterally raising prices. Assistant Chief, Litigation III Section.

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Certificate of Service United States District Court for the liability company with its headquarters District of Columbia in Montgomery, Alabama, its successors I hereby certify that on August 28, and assigns, and its subsidiaries, United States of America, Plaintiff, 2008, I caused a copy of the foregoing divisions, groups, affiliates, Complaint to be served on the defendant v. partnerships and joint ventures, and in this matter in the manner set forth their directors, officers, managers, below: Raycom Media, Inc., Defendant. agents, and employees. By facsimile and U.S. mail: Civil Action No.: l:08–cv–01510 C. ‘‘DMA’’ means designated market area as defined by A.C. Nielsen Counsel for Defendant Raycom Media, Inc., Assigned To: Urbina, Ricardo M. Everett J. Bowman, Esq., Company based upon viewing patterns Robinson Bradshaw & Hinson, 101 North Assign. Date: 08/28/2008 and used by the Investing In Television Tryon St., Suite 1900, Charlotte, NC 28246, Filed: 8/28/08. BIA Market Report 2007 (2nd edition). Telephone: (704) 377–8329, Facsimile: DMAs are ranked according to the (704) 373–3929, E-mail: Final Judgment number of households therein and are [email protected]. Whereas, plaintiff, United States of used by broadcasters, advertisers and advertising agencies to aid in evaluating Ann Marie Blaylock (D.C. Bar. No. 967825), America, filed its Complaint on August television audience size and Litigation III Section, Antitrust Division, 28, 2008, the United States and composition. United States Department of Justice, 450 defendant, Raycom Media, Inc. D. ‘‘Richmond market’’ means the Fifth Street, NW., Suite 4000, Washington, (‘‘Raycom’’), by their respective Richmond, Virginia, DMA broadcast DC 20530, (202) 616–5932, Facsimile: (202) attorneys, have consented to the entry of this Final Judgment without trial or television market. 514–7308, ann.blaylockusdoj.gov. E. ‘‘WTVR–TV’’ means the broadcast adjudication of any issue of fact or law, television station WTVR–TV located in Appendix A and without this Final Judgment the Richmond market owned by constituting any evidence against or Definition of HHI defendant. admission by any party regarding any F. ‘‘Divestiture Assets’’ means all of The term HH1 means the Herfindahl- issue of fact or law; the assets, tangible or intangible, used in And whereas, defendant agrees to be Hirschman Index, a commonly accepted the operation of WTVR–TV, including, bound by the provisions of this Final measure of market concentration. The but not limited to, all real property Judgment pending its approval by the HHI is calculated by squaring the (owned or leased), broadcast equipment, Court; market share of each firm competing in office equipment, office furniture, the market and then summing the And whereas, the essence of this Final Judgment is the prompt and certain fixtures, materials, supplies, and other resulting numbers. For example, for a tangible property used in the operation market consisting of four firms with divestiture of certain rights or assets by defendant to assure that competition is of the station; all licenses, permits, shares of 30, 30, 20, and 20 percent, the authorizations, and applications 2 2 2 2 not substantially lessened; HHI is 2,600 (30 + 30 + 20 + 20 = And whereas, the United States therefor issued by the Federal 2,600). The HHI takes into account the requires defendant to make a certain Communications Commission (‘‘FCC’’) relative size and distribution of the divestiture for the purpose of remedying and other government agencies relating firms in a market. It approaches zero the loss of competition alleged in the to the station; all contracts (including when a market is occupied by a large Complaint; programming contracts and rights), number of firms of relatively equal size And whereas, defendant has agreements, network affiliation and reaches its maximum of 10,000 represented to the United States that the agreements, leases, and commitments when a market is controlled by a single divestiture required below can and will and understandings of defendant firm. The HHI increases both as the be made and that it will later raise no relating to the operation of WTVR–TV; number of firms in the market decreases claim of hardship or difficulty as all trademarks, service marks, trade and as the disparity in size between grounds for asking the Court to modify names, copyrights, patents, slogans, those firms increases. any of the divestiture provisions programming materials, and promotional materials relating to Markets in which the HHI is between contained below; Now therefore, before any testimony WTVR–TV; all customer lists, contracts, 1000 and 1800 are considered to be is taken, without trial or adjudication of accounts, and credit records; and all moderately concentrated, and markets any issue of fact or law, and upon logs and other records maintained by in which the HHI is in excess of 1800 consent of the parties, it is ordered, defendant in connection with WTVR– points are considered to be highly adjudged, and decreed: TV. concentrated. Transactions that increase the HHI by more than 100 points in I. Jurisdiction III. Applicability highly concentrated markets This Court has jurisdiction over the A. This Final Judgment applies to presumptively raise significant antitrust subject matter of and each of the parties Raycom, as defined above, and all other concerns under the Department of to this action. The Complaint states a persons in active concert or Justice and Federal Trade Commission claim upon which relief may be granted participation with Raycom who receive 1992 Horizontal Merger Guidelines. against defendant under section 7 of the actual notice of this Final Judgment by Clayton Act, as amended (15 U.S.C. 18). personal service or otherwise. B. If, prior to complying with section II. Definitions IV and V of this Final Judgment, As used in this Final Judgment: Defendant sells or otherwise disposes of A. ‘‘Acquirer’’ means the entity to all or substantially all of its assets or of which defendant divests the Divestiture lesser business units that include the Assets. Divestiture Assets, defendant shall B. ‘‘Raycom’’ means defendant require the purchaser to be bound by the Raycom Media, Inc., a Delaware limited provisions of this Final Judgment.

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Defendant need not obtain such an or work-product doctrine. Defendant the intent and capability (including the agreement from the acquirer of the shall make available such information to necessary managerial, technical, assets divested pursuant to this Final the United States at the same time that operational, and financial capability) of Judgment. such information is made available to competing effectively in the commercial any other person. broadcast television business in the IV. Divestiture C. Defendant shall provide the Richmond market; and A. Defendant is ordered and directed, Acquirer and the United States (2) Shall be accomplished so as to within thirty (30) calendar days after the information relating to the personnel satisfy the United States, in its sole filing of the Complaint in this matter or involved in the operation of the discretion, that none of the terms of any five (5) days after notice of the entry of Divestiture Assets to enable the agreement(s) between an Acquirer and this Final Judgment by the Court, Acquirer to make offers of employment. defendant gives them the ability whichever is later, to divest the Defendant will not interfere with any unreasonably to raise the Acquirer’s Divestiture Assets in a manner negotiations by the Acquirer to employ costs, to lower the Acquirer’s efficiency, consistent with this Final Judgment to any defendant employee whose primary or otherwise to interfere in the ability of an Acquirer acceptable to the United responsibility is the operation of the the Acquirer to compete effectively. States in its sole discretion. The United Divestiture Assets. States, in its sole discretion, may agree D. Defendant shall permit prospective V. Appointment of Trustee to one or more extensions of this time Acquirers of the Divestiture Assets to A. If defendant has not divested the period, not to exceed 60 calendar days have reasonable access to personnel and Divestiture Assets within the time in total, and shall notify the Court in to make inspections of the physical period specified in section IV(A), such circumstances. With respect to facilities of the business to be divested; defendant shall notify the United States divestiture of the Divestiture Assets by access to any and all environmental, of that fact in writing. Upon application defendant or the trustee appointed zoning, and other permit documents of the United States, the Court shall pursuant to section V of this Final and information; and access to any and appoint a trustee selected by the United Judgment, if applications have been all financial, operational, or other States and approved by the Court to filed with the FCC within the period documents and information customarily effect the divestiture of the Divestiture permitted for divestiture seeking provided as part of a due diligence Assets. approval to assign or transfer licenses to process. B. After the appointment of a trustee the Acquirer of the Divestiture Assets, E. Defendant shall warrant to the becomes effective, only the trustee shall but an order or other dispositive action Acquirer that each asset will be have the right to sell the Divestiture by the FCC on such applications has not operational on the date of sale. Assets. The trustee shall have the power been issued before the end of the period F. Defendant shall not take any action and authority to accomplish the permitted for divestiture, the period that will impede in any way the divestiture to an Acquirer acceptable to shall be extended with respect to permitting, operation, or divestiture of the United States at such price and on divestiture of the Divestiture Assets for the Divestiture Assets. such terms as are then obtainable upon which FCC approval has not been G. Defendant shall warrant to the reasonable effort by the trustee, subject issued until five (5) days after such Acquirer that there are no material to the provisions of sections IV, V, and approval is received. Defendants agree defects in the environmental, zoning, or VI of this Final Judgment, and shall to use their best efforts to accomplish other permits pertaining to the have such other powers as this Court the divestitures set forth in this Final operation of each asset, and that deems appropriate. Subject to section Judgment and to seek all necessary following the sale of the Divestiture V(D) of this Final Judgment, the trustee regulatory approvals as expeditiously as Assets, defendant will not undertake, may hire at the cost and expense of possible. This Final Judgment does not directly or indirectly, any challenges to defendant any investment bankers, limit the FCC’s exercise of its regulatory the environmental, zoning or other attorneys, or other agents, who shall be powers and process with respect to the permits relating to the operation of the solely accountable to the trustee, Divestiture Assets. Authorization by the Divestiture Assets. reasonably necessary in the trustee’s FCC to conduct the divestiture of a H. Unless the United States otherwise judgment to assist in the divestiture. Divestiture Asset in a particular manner consents in writing, the divestiture C. Defendant shall not object to a sale will not modify any of the requirements pursuant to section IV, or by trustee by the trustee on any ground other than of this decree. appointed pursuant to section V, of this the trustee’s malfeasance. Any such B. In accomplishing the divestiture Final Judgment, shall include the entire objections by defendant must be ordered by this Final Judgment, Divestiture Assets, and shall be conveyed in writing to the United States defendant promptly shall make known, accomplished in such a way as to satisfy and the trustee within ten (10) calendar by usual and customary means, the the United States, in its sole discretion, days after the trustee has provided the availability of the Divestiture Assets. that the Divestiture Assets can and will notice required under section VI. Defendant shall inform any person be used by the Acquirer as part of a D. The trustee shall serve at the cost making inquiry regarding a possible viable, ongoing commercial broadcast and expense of defendant, on such purchase of the Divestiture Assets that television business. Divestiture of the terms and conditions as the United they are being divested pursuant to this Divestiture Assets must be made to a States approves, and shall account for Final Judgment and provide that person single Acquirer that can demonstrate to all monies derived from the sale of the with a copy of this Final Judgment. the sole satisfaction of the United States assets sold by the trustee and all costs Defendant shall offer to furnish to all that the Divestiture Assets will remain and expenses so incurred. After prospective Acquirers, subject to viable and the divestiture of such assets approval by the Court of the trustee’s customary confidentiality assurances, will remedy the competitive harm accounting. including fees for its all information and documents relating alleged in the Complaint. The services and those of any professionals to the Divestiture Assets customarily divestiture, whether pursuant to section and agents retained by the trustee, all provided in a due diligence process IV or section V of this Final Judgment, remaining money shall be paid to except such information or documents (1) Shall be made to an Acquirer that, defendant and the trust shall then be subject to the attorney-client privileges in the United States sole judgment, has terminated. The compensation of the

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trustee and any professionals and agents thereafter shall enter such orders as it VII. Financing retained by the trustee shall be shall deem appropriate to carry out the Defendant shall not finance all or any reasonable in light of the value of the purpose of the Final Judgment, which part of any purchase made pursuant to Divestiture Assets and based on a fee may, if necessary, include extending the section IV or V of this Final Judgment. arrangement providing the trustee with trust and the term of the trustee’s an incentive based on the price and appointment by a period requested by VIII. Hold Separate terms of the divestiture and the speed the United States. Until the divestiture required by this with which it is accomplished, but VI. Notice of Proposed Divestiture Final Judgment has been accomplished, timeliness is paramount. defendant shall take all steps necessary E. Defendant shall use its best efforts A. Within two (2) business days to comply with the Hold Separate to assist the trustee in accomplishing following execution of a definitive Stipulation and Order entered by this the required divestiture. The trustee and divestiture agreement, defendant or the Court. Defendant shall take no action any consultants, accountants, attorneys, trustee, whichever is then responsible that would jeopardize the divestiture and other persons retained by the for effecting the divestiture required ordered by this Court. trustee shall have full and complete herein, shall notify the United States of access to the personnel, books, records, any proposed divestiture required by IX. Affidavits section IV or V of this Final Judgment. and facilities related to the Divestiture A. Within twenty (20) calendar days If the trustee is responsible, it shall Assets and defendant shall develop of the filing of the Complaint in this similarly notify defendant. The notice financial and other information relevant matter, and every thirty (30) calendar to such business as the trustee may shall set forth the details of the days thereafter until the divestiture has reasonably request, subject to reasonable proposed divestiture and list the name, been completed under section IV or V, protection for trade secret or other address, and telephone number of each defendant shall deliver to the United confidential research, development, or person not previously identified who States an affidavit as to the fact and commercial information. Defendant offered or expressed an interest in or manner of its compliance with section shall take no action to interfere with or desire to acquire any ownership interest IV or V of this Final Judgment. Each to impede the trustee’s accomplishment in the Divestiture Assets, together with such affidavit shall include the name, of the divestiture. full details of the same. F. After its appointment, the trustee B. Within fifteen (15) calendar days of address, and telephone number of each shall file monthly reports with the receipt by the United States of such person who, during the preceding thirty United States and the Court, setting notice, the United States may request (30) calendar days, made an offer to forth the trustee’s efforts to accomplish from defendant, the proposed acquire, expressed an interest in the divestiture ordered under this Final Acquirer(s), any other third party, or the acquiring, entered into negotiations to Judgment. To the extent such reports trustee if applicable, additional acquire, or was contacted or made an contain information that the trustee information concerning the proposed inquiry about acquiring, any interest in deems confidential, such reports shall divestiture, the proposed Acquirer(s) the Divestiture Assets, and shall not be filed in the public docket of the and any other potential Acquirer. describe in detail each contact with any Court. Such reports shall include the Defendant and the trustee shall furnish such person during that period. Each name, address, and telephone number of any additional information requested such affidavit shall also include a each person who, during the preceding within fifteen (15) calendar days of the description of the efforts defendant has month, made an offer to acquire, receipt of the request, unless the parties taken to solicit buyers for the expressed an interest in acquiring, shall otherwise agree. Divestiture Assets and to provide entered into negotiations to acquire, or C. Within thirty (30) calendar days required information to prospective was contacted or made an inquiry about after receipt of the notice or within Acquirers. including the limitations, if acquiring, any interest in the Divestiture twenty (20) calendar days after the any, on such information. Assuming the Assets, and shall describe in detail each United States has been provided the information set forth in the affidavit is contact with any such person. The additional information requested from true and complete, any objection by the trustee shall maintain full records of all defendant, the proposed Acquirer(s), United States to information provided efforts made to divest the Divestiture any third party and the trustee, by defendant, including limitation on Assets. whichever is later, the United States information, shall be made within G. If the trustee has not accomplished shall provide written notice to fourteen (14) calendar days of receipt of the divestiture ordered under this Final defendant and the trustee, if there is such affidavit. Judgment within six (6) months after its one, stating whether or not it objects to B. Within twenty (20) calendar days appointment, the trustee shall promptly the proposed divestiture. If the United of the filing of the Complaint in this file with the Court a report setting forth: States provides written notice that it matter, defendant shall deliver to the (1) The trustee’s efforts to accomplish does not object, the divestiture may be United States an affidavit that describes the required divestiture, (2) the reasons, consummated, subject only to in reasonable detail all actions in the trustee’s judgment. why the defendant’s limited right to object to the defendant has taken and all steps required divestiture has not been sale under section V(C) of this Final defendant has implemented on an accomplished, and (3) the trustee’s Judgment. Without prior written notice ongoing basis to comply with section recommendations. To the extent such that the United States does not object to VIII of this Final Judgment. Defendant reports contain information that the the proposed Acquirer or upon shall deliver to the United States an trustee deems confidential, such report objection by the United States, a affidavit describing any changes to the shall not be filed in the public docket divestiture proposed under section IV or efforts and actions outlined in its earlier of the Court. The trustee shall at the section V shall not be consummated. affidavits filed pursuant to this section same time furnish such report to the Upon objection by defendant under within fifteen (15) calendar days after United States, which shall have the section V(C), a divestiture proposed the change is implemented. right to make additional under Section V shall not be C. Defendant shall keep all records of recommendations consistent with the consummated unless approved by the all efforts made to preserve and divest purpose of the trust. The Court Court. the Divestiture Assets until one year

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after such divestiture has been Procedure, and defendant marks each United States District Judge completed. pertinent page of such material, United States District Court for the X. Compliance Inspection ‘‘Subject to claim of protection under District of Columbia Rule 26(c)(7) of the Federal Rules of A. For the purposes of determining or Civil Procedure,’’ then the United States United States of America, Department securing compliance with this Final shall give defendant ten (10) calendar of Justice, Antitrust Division, 450 5th Judgment, or of determining whether days notice prior to divulging such Street, NW., Suite 4000, Washington, DC the Final Judgment should be modified material in any legal proceeding (other 20530, Plaintiff, or vacated, and subject to any legally recognized privilege, from time to time than a grand jury proceeding). v. authorized representatives of the United XI. No Reacquisition Raycom Media, Inc., RSA Tower, 20th States Department of Justice, including Floor, 201 Monroe Street, Montgomery, consultants and other persons retained Defendant may not reacquire any part AL 36104, Defendant. by the United States, shall, upon written of the Divestiture Assets or enter into request of an authorized representative any local marketing agreement, joint Civil Action No.: l:08–cv–01510 of the Assistant Attorney General in sales agreement, or any other Assigned To: Urbina, Ricardo M. charge of the Antitrust Division, and on cooperative selling arrangement with Assign. Date: 08/28/2008 reasonable notice to defendant, be respect to the Divestiture Assets during permitted: the term of this Final Judgment. Description: Antitrust (1) Access during defendant’s office Competitive Impact Statement hours to inspect and copy, or at the XII. Retention of Jurisdiction option of the United States, to require Plaintiff United States of America defendant to provide hard copy or This Court retains jurisdiction to (‘‘United States’’), pursuant to section electronic copies of, all books, ledgers, enable any party to this Final Judgment 2(b) of the Antitrust Procedures and accounts, records, data, and documents to apply to this Court at any time for Penalties Act (‘‘APPA’’ or ‘‘Tunney in the possession, custody, or control of further orders and directions as may be Act’’), 15 U.S.C. 16(b)–(h), files this defendant, relating to any matters necessary or appropriate to carry out or Competitive Impact Statement relating contained in this Final Judgment; and construe this Final Judgment, to modify to the proposed Final Judgment (2) To interview, either informally or any of its provisions, to enforce submitted for entry in this civil antitrust on the record, defendant’s officers, compliance, and to punish violations of proceeding. employees, or agents, who may have its provisions. I. Nature and Purpose of the Proceeding their individual counsel present, regarding such matters. The interviews XIII. Expiration of Final Judgment Defendant Raycom Media, Inc. (‘‘Raycom’’) and Lincoln Financial shall be subject to the reasonable Unless this Court grants an extension, Media Company 1 (‘‘Lincoln’’) entered convenience of the interviewee and this Final Judgment shall expire ten into a Stock Purchase Agreement, dated without restraint or interference by years from the date of its entry. defendant. November 12, 2007, pursuant to which B. Upon the written request of an XIV. Public Interest Determination Raycom acquired three broadcast authorized representative of the television stations from Lincoln. The Assistant Attorney General in charge of Entry of this Final Judgment is in the transaction closed on April 1, 2008. The the Antitrust Division, defendant shall public interest. The parties have United States filed a cMl antitrust submit written reports or response to complied with the requirements of the Complaint on August 28, 2008, alleging written interrogatories, under oath if Antitrust Procedures and Penalties Act, that Raycom’s acquisition of one of the requested, relating to any of the matters 15 U.S.C. 16, including making copies stations, WWBT–TV, the Richmond, contained in this Final Judgment as may available to the public of this Final Virginia, affiliate of the National be requested. Judgment, the Competitive Impact Broadcasting Corporation, when it C. No information or documents Statement, and any comments thereon already owned WTVR–TV, the obtained by the means provided in this and the United States’ responses to Richmond, Virginia, affiliate of CBS section shall be divulged by the United comments. Based upon the record Broadcasting Inc., violates section 7 of States to any person other than an before the Court, which includes the the Clayton Act, 15 U.S.C. 18. The authorized representative of the Competitive Impact Statement and any Complaint alleges that Raycom, as a executive branch of the United States or, comments and response to comments result of the acquisition, owns two of pursuant to a customary protective filed with the Court, entry of this Final the top four broadcast television stations order or waiver of confidentiality by Judgment is in the public interest. in the Richmond market accounting for defendant, the FCC, except in the course more than half of all broadcast of legal proceedings to which the United Date: television spot advertising revenue in States is a party (including grand jury Court approval subject to procedures 2008. Raycom’s continued ownership of proceedings), or for the purpose of of the Antitrust Procedures and both WWBT–TV and WTVR–TV would securing compliance with this Final Penalties Act, 15 U.S.C. 16: substantially lessen competition in the Judgment, or as otherwise required by sale of broadcast television spot law. advertising in Richmond, Virginia, and D. If at the time information or the surrounding area. documents are furnished by defendant At the same time the Complaint was to the United States, defendant filed, the United States also filed a Hold represents and identifies in writing the Separate Stipulation and Order (‘‘Hold material in any such information or Separate’’) and proposed Final documents to which a claim of Judgment, which are designed to protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil 1 Lincoln is not a party to this lawsuit.

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eliminate the anticompetitive effects of transaction for a period of ninety days absorb a price increase. However, the Raycom’s common ownership of following the closing of the Raycom- existence of such advertisers would not WWBT–TV and WTVR–TV. Under the Lincoln transaction, during which prevent broadcast television stations proposed Final Judgment, which is period Raycom was to sell WTVR–TV; from profitably raising prices by a small explained more fully below, Raycom Raycom agreed that the United States but significant amount for a substantial agrees to divest WTVR–TV. Under the could tile the executed Hold Separate number of advertisers that would not terms of the Hold Separate Stipulation Stipulation and Order and a proposed shift. and Order, Raycom agrees to take Final Judgment compelling the sale of The Complaint alleges that the certain steps during the pendency of the WTVR–TV in the event that Raycom did Richmond. Virginia, DMA is the proposed divestiture to ensure that not sell WTVR–TV within that period; relevant geographic market. The WTVR–TV is operated as a and Raycom agreed to comply by the Richmond DMA 2 encompasses the city competitively independent, terms of the Hold Separate Stipulation of Richmond, Virginia, and the economically viable and ongoing and Order requiring Raycom to preserve surrounding counties in which stations business concern, that will remain and hold separate WTVR–TV, so that within the Richmond DMA receive the independent and uninfluenced by competition in the Richmond broadcast largest share of viewers. Advertisers use Raycom’s other broadcast operations, television advertising market would be broadcast television stations within the and that competition is maintained maintained. Richmond DMA to reach the largest between WWBT–TV and WTVR–TV. Raycom closed its transaction with possible number of viewers within the The United States and Defendant have Lincoln on April 1, 2008, but the entire DMA. Advertising on television stipulated that the proposed Final agreed-upon divestiture has not yet stations outside the Richmond DMA is Judgment may be entered after taken place. Therefore, in accordance not an effective alternative for compliance with the APPA. Entry of the with the terms of the January 9, 2008 advertisers wishing to target viewers proposed Final Judgment would agreement, the United States instituted within the Richmond DMA, because terminate this action, except that the this action. such stations are not viewed by a Court would retain jurisdiction to significant number of potential C. The Competitive Effects of the construe, modify, or enforce the customers within the Richmond DMA. Transaction provisions of the proposed Final 2. Anticompetitive Effects of the Judgment and to punish violations 1. The Relevant Product and Geographic Transaction thereof. Markets Raycom’s acquisition of WWBT–TV II. Description of the Events Giving Rise The Complaint alleges that the substantially lessens competition in the to the Alleged Violation provision of broadcast television spot provision of broadcast television spot advertising in the Richmond Designated advertising time in the Richmond DMA. A. The Defendant and the Transaction Marketing Area (‘‘Richmond DMA’’) Raycom’s ownership of WWBT–TV and Defendant Raycom is a Delaware constitutes a line of commerce and WTVR–TV gives it control over two of limited liability company with its section of the country, or relevant the top four broadcast stations in the headquarters in Montgomery, Alabama. market, for antitrust purposes. Broadcast Richmond DMA and over 50 percent of Raycom, through its subsidiaries, owns television spot advertising comprises the broadcast television spot advertising approximately 46 television stations in the majority of a broadcast television revenue in the Richmond DMA. the United States, including WWBT–TV station’s revenues. It is purchased by Combining the ownership of WWBT–TV and WTVR–TV in Richmond, Virginia. advertisers who want to target potential and WTVR–TV substantially increases customers in specific geographic the already high concentration in the B. The Transaction markets and differs from network and market, which will reduce competition On November 12, 2007, Raycom syndicated television advertising, both and lead to higher prices. agreed to acquire three broadcast of which are sold by the major Advertisers select broadcast television television stations in three different television networks and producers of stations to reach a large percentage of markets from entities controlled by syndicated programs on a nationwide their target audience based upon a Lincoln. In one of those markets— basis and broadcast in every market number of factors, including the size Richmond, Virginia—the acquisition where the network or syndicated and demographic characteristics of the would result in Raycom owning program is aired. Spot advertising is station’s audience. Many advertisers WWBT–TV and WTVR–TV, two of the sold either directly by the station, or seek to reach a large percentage of their top four broadcast television stations through its national representative, on a target audience by selecting those that combined account for more than 50 localized, market-by-market basis. broadcast television stations whose percent of the broadcast television spot The Complaint alleges that broadcast audience best correlates to their target advertising revenues in that market. television spot advertising possesses audience. If multiple broadcast Although a Federal Communications specific characteristics, such as its television stations efficiently reach that Commission (‘‘FCC’’) rule against combination of sight, sound, and target audience, advertisers benefit from duopolies in local markets (‘‘the FCC motion, and broad reach, that the competition among such stations to duopoly rule’’) prohibited Raycom from collectively differentiate it from other offer better prices or services. Today, owning both stations, prior to closing media. Broadcast television stations are WWBT–TV and WTVR–TV compete Raycom planned to seek a temporary able to identify advertisers with strong waiver of the FCC duopoly rule to allow preferences for broadcast television 2 A Designated Marketing Area (‘‘DMA’’) is a non- the transaction to be completed, and advertising, and can charge different overlapping geographic unit defined by A.C. Nielsen Company, a firm that surveys television then to divest WTVR–TV to cure the advertisers different prices. The viewers and furnishes television stations, overlap. Complaint alleges that if broadcast advertisers, and advertising agencies in a particular On January 9, 2008, the United States, television stations were to raise the area with data to aid in evaluating audience size and composition. A DMA is used to identify Raycom, and Lincoln entered into an price of spot advertising, some broadcast television stations whose broadcast agreement by which: The United States advertisers might shift some of their signals reach a specific area and attract the most agreed to defer filing suit to enjoin the advertising to other media rather than viewers.

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head-to-head to reach the same accomplish the divestiture quickly and with the purpose of the trust. In such a audiences and, for many advertisers that shall cooperate with prospective situation, the Court may enter any buy broadcast television time in acquirers. The divestiture will establish order(s) it deems appropriate to carry Richmond, they are close substitutes for a new, independent, and economically out the purpose of the Final Judgment. each other based on their specific viable competitor. The proposed Final Judgment requires audience characteristics. Because Unless the United States grants an that Raycom maintain and operate advertisers seeking to reach a target extension of time, Raycom must divest WTVR–TV separate and apart from audience would have fewer and more WTVR–TV either within thirty (30) Raycom’s other operations, pending expensive alternatives to the merged calendar days after the Complaint has divestiture. The Final Judgment also entity as a result of the merger, the been filed or within five (5) days after contains provisions to ensure that acquisition would give Raycom the notice of entry of the Final Judgment, WTVR–TV will be preserved, so that ability to raise its rates. whichever is later. The United States after divestiture it will remain a viable, The Complaint alleges that new entry may, in its sole discretion, grant one or aggressive competitor. into the Richmond broadcast television more extensions of time, which in total IV. Remedies Available to Potential spot advertising market is highly may not exceed sixty (60) calendar days. Private Litigants unlikely in response to a Raycom price Until the divestiture takes place, increase. The FCC regulates entry Raycom will maintain WTVR–TV as an Section 4 of the Clayton Act, 15 through the issuance of licenses. These independent competitor to the other U.S.C. 15, provides that any person who licenses are difficult to obtain because broadcast television stations in the has been injured as a result of conduct the availability of spectrum is limited, Richmond DMA, including WWBT–TV. prohibited by the antitrust laws may and the regulatory process associated WTVR–TV must be divested in such a bring suit in federal court to recover with obtaining a license is lengthy. Even way as to satisfy the United States in its three times the damages the person has if a new signal became available, sole discretion that it can and will be suffered, as well as costs and reasonable commercial success would come, at operated by the purchaser as a viable, attorneys’ fees. Entry of the proposed best, over a period of many years, ongoing business that can compete Final Judgment will neither impair nor because all major broadcast networks effectively in the relevant market. assist the bringing of any private are already affiliated with a station in Raycom must take all reasonable steps antitrust damage action. Under the the Richmond-DMA, the contracts last necessary to accomplish the divestiture provisions of section 5(a) of the Clayton for many years, and the broadcast quickly and shall cooperate with Act, 15 U.S.C. 16(a), the proposed Final networks rarely switch licensees when prospective purchasers. Judgment has no prima facie effect in the contracts expire. Thus, entry into If Raycom fails to divest WTVR–TV any subsequent private lawsuit that may the Richmond DMA broadcast television within the time periods specified in the be brought against Defendants. spot advertising market would not be Final Judgment, the Court, upon V. Procedures Available for timely, likely, or sufficient to deter application of the United States, shall Modification of the Proposed Final Raycom from unilaterally raising prices. appoint a trustee nominated by the Judgment For these reasons, the Division United States and approved by the concluded that Raycoms acquisition of Court to effect the divestiture. If a The United States and Defendants WWBT–TV, when it already owned trustee is appointed, the proposed Final have stipulated that the proposed Final WTVR–TV, would substantially lessen Judgment provides that Raycom will Judgment may be entered by the Court competition in the sale of broadcast pay all costs and expenses of the trustee after compliance with the provisions of television spot advertising time in the and any professionals and agents the APPA, provided that the United Richmond DMA, eliminate actual retained by the trustee. The States has not withdrawn its consent. competition between WWBT–TV and compensation paid to the trustee and The APPA conditions entry upon the WTVR–TV, and result in increased rates any persons retained by the trustee shall Court’s determination that the proposed for broadcast television spot advertising be both reasonable in light of the value Final Judgment is in the public interest. time in the Richmond DMA, all in of WTVR–TV and based on a fee The APPA provides a period of at violation of section 7 of the Clayton Act. arrangement providing the trustee with least sixty (60) days preceding the an incentive based on the price and effective date of the proposed Final III. Explanation of the Proposed Final terms of the divestiture and the speed Judgment within which any person may Judgment with which it is accomplished. After submit to the United States written The proposed Final Judgment requires appointment, the trustee will file comments regarding the proposed Final that Defendant divest all of the tangible monthly reports with the United States Judgment. Any person who wishes to and intangible assets used in the and the Court, setting forth the trustee’s comment should do so within sixty (60) operation of WTVR–TV, defined in the efforts to accomplish the divestiture days of the date of publication of this Final Judgment as the ‘‘Divestiture ordered under the proposed Final Competitive Impact Statement in the Assets.’’ The sale of the Divestiture Judgment. If the trustee has not Federal Register, or the last date of Assets according to the terms of the accomplished the divestiture within six publication in a newspaper of the proposed Final Judgment will eliminate (6) months after its appointment, the summary of this Competitive Impact the anticompetitive effects of the trustee shall promptly file with the Statement, whichever is later. All acquisition in the Richmond market for Court a report setting forth (1) the comments received during this period broadcast television spot advertising trustee’s efforts to accomplish the will be considered by the United States time. The Divestiture Assets must be required divestiture, (2) the reasons, in Department of Justice, which remains divested in such a way as to satisfy the the trustee’s judgment, why the required free to withdraw its consent to the United States in its sole discretion that divestiture has not been accomplished, proposed Final Judgment at any time WTVR–TV can and will be operated by and (3) the trustee’s recommendations. prior to the Court’s entry of judgment. the acquirer as a viable, ongoing At the same time, the trustee will The comments and the response of the commercial broadcast television furnish such report to the United States, United States will be filed with the business; and Defendant must take all who will have the right to make Court and published in the Federal reasonable steps necessary to additional recommendations consistent Register.

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Written comments should be violations set forth in the complaint determining whether a proposed submitted to: John Read, Chief, including consideration of the public settlement is in the public interest, a Litigation III Section, Antitrust Division, benefit, if any, to be derived from a district court ‘‘must accord deference to United States Department of Justice, 450 determination of the issues at trial. the government’s predictions about the 5th St., NW., Suite 4000, Washington, 15 U.S.C. 16(e)(l)(A) & (B). In efficacy of its remedies, and may not DC 20530. considering these statutory factors, the require that the remedies perfectly The proposed Final Judgment court’s inquiry is necessarily a limited match the alleged violations.’’ SBC provides that the Court retains one as the government is entitled to Commc’ns, 489 F. Supp. 2d at 17; see jurisdiction over this action, and the ‘‘broad discretion to settle with the also Microsoft, 56 F.3d at 1461 (noting parties may apply to the Court for any defendant within the reaches of the the need for courts to be ‘‘deferential to order necessary or appropriate for the public interest.’’ United States v. the government’s predictions as to the modification, interpretation, or Microsoft Corp., 56 F.3d 1448, 1461 effect of the proposed remedies’’); enforcement of the Final Judgment. (D.C. Cir. 1995); see generally United United States v. Archer-Daniels- VI. Alternatives to the Proposed Final States SBC Commc’ns, Inc., 489 F. Midland Co., 272 F. Supp. 2d 1, 6 Judgment Supp. 2d I (D.D.C. 2007) (assessing (D.D.C. 2003) (noting that the court public interest standard under the should grant due respect to the United The United States considered, as an Tunney Act).3 States’ prediction as to the effect of alternative to the proposed Final As the United States Court of Appeals proposed remedies, its perception of the Judgment, a full trial on the merits for the District of Columbia Circuit has market structure, and its views of the against Defendant. The United States held, under the APPA a court considers, nature of the case). could have continued the litigation and among other things, the relationship Courts have greater flexibility in sought preliminary and permanent between the remedy secured and the approving proposed consent decrees injunctions against Defendant’s specific allegations set forth in the than in crafting their own decrees acquisition of WWBT–TV. The United government’s complaint, whether the following a finding of liability in a States is satisfied, however, that the decree is sufficiently clear, whether litigated matter. ‘‘[A] proposed decree divestiture of assets described in the enforcement mechanisms are sufficient, must be approved even if it falls short proposed Final Judgment will preserve and whether the decree may positively of the remedy the court would impose competition for the provision of harm third parties. See Microsoft, 56 on its own, as long as it falls within the broadcast television spot advertising in F.3d at 1458–62. With respect to the range of acceptability or is ‘within the the relevant market identified by the adequacy of the relief secured by the reaches of public interest.’’’ United United States. Thus, the proposed Final decree, a court may not ‘‘engage in an States v. Am. Tel. & Tel. Co., 552 F. Judgment would achieve all or unrestricted evaluation of what relief Supp. 131, 151 (D.D.C. 1982) (citations substantially all of the relief the United would best serve the public.’’ United omitted) (quoting United States v. States would have obtained through States v. BNS, Inc., 858 F.2d 456, 462 Gillette Co., 406 F. Supp. 713, 716 (D. litigation, but avoids the time, expense, (9th Cir. 1988) (citing United States v. Mass. 1975)), aff’d sub nom. Maryland and uncertainty of a full trial on the Bechtel Corp., 648 F.2d 660, 666 (9th v. United States, 460 U.S. 1001 (1983); merits of the Complaint. Cir. 1981)); see also Microsoft, 56 F.3d see also United States v. Alcan VII. Standard of Review Under the at 1460–62; United States v. Alcoa, Inc., Aluminum Ltd., 605 F. Supp. 619, 622 APPA for the Proposed Final Judgment 152 F. Supp. 2d 37, 40 (D.D.C. 2001). (W.D. Ky. 1985) (approving the consent Courts have held that: decree even though the court would The Clayton Act, as amended by the [t]he balancing of competing social and have imposed a greater remedy). To APPA, requires that proposed consent meet this standard, the United States judgments in antitrust cases brought by political interests affected by a proposed antitrust consent decree must be left, in the ‘‘need only provide a factual basis for the United States be subject to a sixty- first instance, to the discretion of the concluding that the settlements are day comment period, after which the Attorney General. The court’s role in reasonably adequate remedies for the court shall determine whether entry of protecting the public interest is one of alleged harms.’’ SBC Commc’ns, 489 F. the proposed Final Judgment ‘‘is in the insuring that the government has not Supp. 2d at 17. public interest. 15 U.S.C.16(e)(1). In breached its duty to the public in consenting Moreover, the court’s role under the to the decree. The court is required to making that determination, the court, in APPA is limited to reviewing the accordance with the statute as amended determine not whether a particular decree is the one that will best serve society, but remedy in relationship to the violations in 2004, is required to consider: whether the settlement is ‘‘within the reaches that the United States has alleged in its (A) The competitive impact of such of the public interest.’’ More elaborate Complaint, and does not authorize the judgment, including termination of requirements might undermine the court to ‘‘construct [its] own alleged violations, provisions for effectiveness of antitrust enforcement by hypothetical case and then evaluate the enforcement and modification, duration consent decree. decree against that case.’’ Microsoft, 56 of relief sought, anticipated effects of Bechtel, 648 F.2d at 666 (emphasis F.3d at 1459. Because the ‘‘court’s alternative remedies actually added) (citations omitted).4 In authority to review the decree depends considered, whether its terms are entirely on the government’s exercising ambiguous, and any other competitive 3 The 2004 amendments substituted ‘‘shall’’ for its prosecutorial discretion by bringing considerations bearing upon the ‘‘may’’ in directing relevant factors for court to a case in the first place,’’ it follows that consider and amended the list of factors to focus on adequacy of such judgment that the ‘‘the court is only authorized to review court deems necessary to a competitive considerations and to address potentially ambiguous judgment terms. Compare 15 determination of whether the consent U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(l) (2006); (D. Mass. 1975) (noting that, in this way, the court judgment is in the public interest; and see also SBC Commc’ns, 489 F. Supp. 2d at 11 is constrained to ‘‘look at the overall picture not (B) The impact of entry of such (concluding that the 2004 amendments ‘‘effected hypercritically, nor with a microscope, but with an judgment upon competition in the minimal changes’’ to Tunney Act review). artist’s reducing glass’’). See generally Microsoft, 56 4 Cf BNS, 858 F.2d at 464 (holding that the court’s F.3d at 1461 (discussing whether ‘‘the remedies relevant market or markets, upon the ‘‘ultimate authority under the [APPA] is limited to [obtained in the decree are] so inconsonant with the public generally and individuals approving or disapproving the consent decree’’); allegations charged as to fall outside of the ‘reaches alleging specific injury from the United States v. Gillette Co., 406 F. Supp. 713, 716 of the public interest’’).

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the decree itself,’’ and not to ‘‘effectively Facsimile: (202) 514–7308, Order thus alleged that the ‘‘listed redraft the complaint’’ to inquire into [email protected]. chemical products distributed by other matters that the United States did Certificate of Service [Respondent] in large quantities have not pursue. id. at 1459–60. As this Court been, and are likely to continue being, recently confirmed in SBC I hereby certify that on August 28, diverted to the clandestine manufacture Communications, courts ‘‘cannot look 2008, I caused a copy of the foregoing of methamphetamine.’’ Id. (citing cases). beyond the complaint in making the Competitive Impact Statement to be Relatedly, the Show Cause Order public interest determination unless the served on the defendant in this matter alleged that some ‘‘[s]mall retail outlets complaint is drafted so narrowly as to in the manner set forth below: that receive large quantities of * * * make a mockery of judicial power.’’ SBC By facsimile and U.S. mail: listed chemical products from Commc’ns, 489 F. Supp. 2d at 15. Counsel for Defendant Raycom Media, Inc. [Respondent] sell such products to In its 2004 amendments, Congress individuals in amounts that cannot be Everett J. Bowman, Esq., made clear its intent to preserve the Robinson Bradshaw & Hinson, 101 North attributed to legitimate individual practical benefits of utilizing consent Tryon St., Suite 1900, Charlotte, NC 28246, needs,’’ that ‘‘some of the retail outlets decrees in antitrust enforcement, adding Telephone: (704) 377–8329, Facsimile: allow customers to make multiple the unambiguous instruction that (704) 373–3929, E-mail: purchases of scheduled listed chemical ‘‘[n]othing in this section shall be [email protected]. products within a single week, and in construed to require the court to Ann Marie Blaylock (D.C. Bar. No. 967825), some cases, within a single day,’’ and conduct an evidentiary hearing or to Litigation III Section, Antitrust Division, that ‘‘[s]ome customers of these retail require the court to permit anyone to United States Department of Justice, 450 outlets purchased more than 9 grams of intervene.’’ 15 U.S.C. 16(e)(2). The Fifth Street, NW., Suite 4000, Washington, ephedrine or pseudoephedrine base language wrote into the statute what DC 20530, (202) 616–5932, Facsimile: (202) within 30 days in violation of 21 U.S.C. Congress intended when it enacted the 514–7308, [email protected]. 844(a).’’ Id.1 Tunney Act in 1974, as Senator Tunney [FR Doc. E8–20878 Filed 9–9–08; 8:45 am] The Show Cause Order further alleged explained: ‘‘[t]he court is nowhere BILLING CODE 4410–11–M that between January 1, 2007, and July compelled to go to trial or to engage in 9, 2007, Respondent distributed listed extended proceedings which might have chemical products ‘‘on at least 284 DEPARTMENT OF JUSTICE the effect of vitiating the benefits of occasions to 35 retail outlets,’’ which prompt and less costly settlement Drug Enforcement Administration had not self-certified as required under through the consent decree process.’’ Federal law. Id. (citing 21 U.S.C. 119 Cong. Rec. 24,598 (1973) (statement [Docket No. 08–33] 830(e)(1)(A)(vii)). Id. Moreover, on three of Senator Tunney). Rather, the occasions subsequent to February 1, procedure for the public interest Novelty Distributors, Inc.; Revocation 2007, Respondent allegedly distributed determination is left to the discretion of of Registration 24-count bottles of listed chemical the court, with the recognition that the On January 17, 2008, I, the Deputy products to retailers in violation of court’s ‘‘scope of review remains Administrator of the Drug Enforcement Federal law, which effective April 9, sharply proscribed by precedent and the Administration, issued an Order to 2006, required that non-liquid form nature of Tunney Act proceedings.’’ Show Cause and Immediate Suspension products be sold only in blister packs. SBC Commc’ns, 489 F. Supp. 2d at 11.5 of Registration to Novelty Distributors, Id. at 2–3 (citing 21 U.S.C. 830(d)(2)). Relatedly, the Show Cause Order VIII. Determinative Documents Inc. (Respondent), of Greenfield, Indiana. The Order immediately alleged that Respondent had distributed There are no determinative materials suspended and proposed the revocation tablet-form products to retailers in or documents within the meaning of the of Respondent’s DEA Certificate of Kentucky and North Carolina in APPA that were considered by the Registration, 003563NSY, as a violation of the laws of these States United States in formulating the distributor of the list I chemicals which ‘‘prohibit the sale of non-liquid proposed Final Judgment. ephedrine and pseudoephedrine, on the ephedrine and pseudoephedrine except Dated: August 28, 2008. grounds that its ‘‘continued registration in a gel-cap product.’’ Id. at 3. Respectfully submitted, is inconsistent with the public interest,’’ Finally, the Show Cause Order alleged Ann Marie Blaylock (D.C. Bar No. 967825), and ‘‘constitute[d] an imminent danger that in July 2007, DEA had audited Trial Attorney, United States Department of to public health and safety.’’ Show twenty listed chemical products which Justice, Antitrust Division, Liberty Square Cause Order at 1 (ALJ EX. 1) (citing 21 Respondent distributed. Id. at 2. The Building, 450 Fifth Street, NW., Suite 4000, Show Cause Order alleged that Washington, DC 20530, (202) 616–5932, U.S.C. 823(h), 824(a)(4), and 824(d)). More specifically, the Show Cause Respondent ‘‘could not account for more than 60,000 dosage units of two 5 See 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting Order alleged that Respondent was that the ‘‘Tunney Act expressly allows the court to storing listed chemical products at, and ephedrine products’’ and that it also had make its public interest determination on the basis distributing them from, over 100 ‘‘overages for 16 different * * * listed of the competitive impact statement and response unregistered locations throughout the chemical products.’’ Id. The Order thus to comments alone’’); United States v. Mid-Am. alleged that Respondent ‘‘failed to Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, United States, in violation of Federal at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of law and regulations. Id. (citing 21 U.S.C. maintain accurate records of its corrupt failure of the government to discharge its 822(e), 21 CFR 1309.21 and 1309.23(a)). distributions and receipts of * * * duty, the Court, in making its public interest Next, the Show Cause Order alleged listed chemical products in violation of finding, should * * * carefully consider the 21 U.S.C. 830(a) and 21 CFR 1310.04.’’ explanations of the government in the competitive that Respondent was distributing impact statement and its responses to comments in quantities of listed chemical products Id. order to determine whether those explanations are ‘‘to small retail outlets such as reasonable under the circumstances.’’); S. Rep. No. convenience stores’’ in amounts ‘‘far 1 The Show Cause Order also alleged that ‘‘[i]n 93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where November 2002, 22 bottles of ephedrine products the public interest can be meaningfully evaluated exceed[ing] what those retail outlets distributed by Novelty were found at an illicit simply on the basis of briefs and oral arguments, could be expected to sell for legitimate, methamphetamine laboratory in Connecticut.’’ that is the approach that should be utilized.’’). therapeutic purposes.’’ Id. at 2. The Show Cause Order at 2.

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