Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices 1207

DEPARTMENT OF JUSTICE NW, Suite 4000, Washington, DC 20530 owns and operates broadcast television (telephone: 202–616–5935). stations in multiple states or in DMAs that Antitrust Division cross state lines. Sales Rep Firms represent Patricia A. Brink, broadcast stations throughout the United United States v. Sinclair Broadcast Director of Civil Enforcement. States, including each of the Defendants, in Group, Inc., et al.; Proposed Final the sale of spot advertising to advertisers UNITED STATES DISTRICT COURT throughout the United States. Such activities, Judgment and Competitive Impact FOR THE DISTRICT OF COLUMBIA including the exchanges of competitively Statement United States of America, 450 Fifth Street sensitive information featured in this NW, Washington, DC 20530; Plaintiff, v. Complaint, are in the flow of and Notice is hereby given pursuant to the Sinclair Broadcast Group, Inc., 10706 Beaver substantially affect interstate commerce. The Antitrust Procedures and Penalties Act, Dam Road, Hunt Valley, Maryland 21030; Court has subject matter jurisdiction under 15 U.S.C. 16(b)–(h), that a proposed Raycom Media, Inc., 201 Monroe Street, Section 4 of the Sherman Act, 15 U.S.C. § 4, Montgomery, AL 36104; Tribune Media Final Judgment, Stipulation, and a and under 28 U.S.C. §§ 1331 and 1337, to Company, 435 North Michigan Avenue, prevent and restrain the Defendants from Competitive Impact Statement as to Chicago, IL 60611; Meredith Corporation, violating Section 1 of the Sherman Act, 15 Nexstar Media Group, Inc. (‘‘Nexstar’’) 1716 Locust Street, Des Moines, IA 50309; U.S.C. § 1. have been filed with the United States Griffin Communications, LLC, 7401 N Kelley 5. Defendants have consented to venue and District Court for the District of Avenue, Oklahoma City, OK 73111; personal jurisdiction in this District. Venue Columbia in United States of America v. Dreamcatcher Broadcasting, LLC, 2016 is proper in this judicial district under Sinclair Broadcast Group, Inc., et al., Broadway, Santa Monica, CA 90404; and Section 12 of the Clayton Act, 15 U.S.C. § 22, Nexstar Media Group, Inc., 545 E John and 28 U.S.C. § 1391. Civil Action No. 1:18–cv–2609. On Carpenter Freeway, Suite 700, Irving, TX December 13, 2018, the United States 75062, Defendants. III. DEFENDANTS filed an Amended Complaint alleging Case No. 1:18–cv–2609–TSC 6. Defendant Sinclair is a Maryland that Nexstar, Sinclair Broadcast Group, corporation with its principal place of Inc., Raycom Media, Inc., Tribune AMENDED COMPLAINT business in Hunt Valley, Maryland. Sinclair Media Company, Meredith Corporation, The United States of America, acting under owns or operates 130 television stations in 87 DMAs and had over $2.7 billion in revenues Griffin Communications, LLC, and the direction of the Acting Attorney General of the United States, brings this civil antitrust in 2017. Dreamcatcher Broadcasting, LLC action to obtain equitable relief against 7. Defendant Raycom is a Delaware violated Section 1 of the Sherman Act, Defendants Sinclair Broadcast Group, Inc. corporation with its principal place of 15 U.S.C. 1, by agreeing to unlawfully (‘‘Sinclair’’), Raycom Media, Inc. business in Montgomery, Alabama. Raycom exchange station-specific, competitively (‘‘Raycom’’), Tribune Media Company owns or operates 55 television stations in 43 sensitive information regarding spot (‘‘Tribune’’), Meredith Corporation DMAs and had over $670 million in revenues in 2017. advertising revenues. The proposed (‘‘Meredith’’), Griffin Communications, LLC (‘‘Griffin’’), Dreamcatcher Broadcasting, LLC 8. Defendant Tribune is a Delaware Final Judgment as to Nexstar, filed at (‘‘Dreamcatcher’’), and Nexstar Media Group, corporation with its principal place of the same time as the Complaint, Inc. (‘‘Nexstar’’) alleging as follows: business in Chicago, Illinois. Tribune owns prohibits sharing of competitively or operates 41 television stations in 31 DMAs sensitive information, require Nexstar to I. NATURE OF THE ACTION and had over $1.8 billion in revenues in implement antitrust compliance training 1. This action challenges under Section 1 2017. programs, and impose cooperation and of the Sherman Act Defendants’ agreements 9. Defendant Meredith is an Iowa to unlawfully exchange competitively corporation with its principal place of reporting requirements on Nexstar. sensitive information among broadcast business in Des Moines, Iowa. Meredith Copies of the Amended Complaint, television stations. owns or operates 17 television stations in 12 proposed Final Judgment, Stipulation 2. Sinclair, Raycom, Tribune, Meredith, DMAs and had over $1.7 billion in revenues and Competitive Impact Statement as to Griffin, Dreamcatcher, and Nexstar in 2017. (‘‘Defendants’’) and certain other television 10. Defendant Griffin is an Oklahoma Nexstar are available for inspection on broadcast station groups (‘‘Other corporation with its principal place of the Antitrust Division’s website at Broadcasters’’) compete in various business in Oklahoma City, Oklahoma. http://www.justice.gov/atr and at the configurations in a number of designated Griffin owns or operates four television Office of the Clerk of the United States marketing areas (‘‘DMAs’’) in the market for stations in two DMAs and had over $60 District Court for the District of broadcast television spot advertising. Certain million in revenues in 2017. Columbia. Copies of these materials may national sales representation firms (‘‘Sales 11. Defendant Dreamcatcher is a Delaware be obtained from the Antitrust Division Rep Firms’’) represent broadcast station corporation with its principal place of groups, including the Defendants, in their business in Santa Monica, California. upon request and payment of the sales of spot advertising to advertisers. Dreamcatcher owns or operates three copying fee set by Department of Justice Defendants’, Other Broadcasters’, and Sales television stations in two DMAs and had over regulations. Rep Firms’ concerted behavior in exchanging $50 million in revenues in 2017. Public comment is invited within 60 competitively sensitive information has 12. Defendant Nexstar is a Delaware enabled the Defendants and Other corporation with its principal place of days of the date of this notice. Such Broadcasters to reduce competition in the business in Irving, Texas. Nexstar owns or comments, including the name of the sale of broadcast television spot advertising operates 105 television stations in 93 DMAs submitter, and responses thereto, will be where they purport to compete head to head. and had over $1.2 billion in revenues in posted on the Antitrust Division’s 3. Defendants’ agreements are restraints of 2017. trade that are unlawful under Section 1 of the website, filed with the Court, and, under IV. INDUSTRY BACKGROUND certain circumstances, published in the Sherman Act, 15 U.S.C. § 1. The Court should therefore enjoin Defendants from exchanging 13. Broadcast television is important to Federal Register. Comments should be competitively sensitive information with and both viewers and advertisers. For viewers, directed to Owen Kendler, Chief, Media, among competing broadcast television broadcast stations, including local affiliates Entertainment, and Professional stations. of ABC, CBS, FOX, and NBC (collectively, Services Section, Antitrust Division, the ‘‘Big 4’’ stations), offer not only highly II. JURISDICTION AND VENUE Department of Justice, 450 Fifth Street rated entertainment and sports programming, 4. Each Defendant sells spot advertising to but also local reporting of the news and advertisers throughout the United States, or events in their own communities and

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regions. The wide popularity of broadcast the stations’ sales managers and other and recur unless the requested relief is station programming—and the concomitant individuals with authority over pricing and granted. opportunity to reach a large local audience— sales for the broadcast stations. These also make broadcast television critical to exchanges occurred with Defendants’ VII. REQUESTED RELIEF advertisers, including local businesses that knowledge and frequently at Defendants’ 28. The United States requests that the seek to reach potential customers in their instruction, and occurred in DMAs across the Court: own communities. United States. a. adjudge that the information sharing 14. Broadcast stations sell advertising 20. Second, in some DMAs, Defendants agreements unreasonably restrain trade and ‘‘spots’’ during breaks in their programming. and Other Broadcasters exchanged are unlawful under Section 1 of the Sherman An advertiser purchases spots from a competitively sensitive information, Act, 15 U.S.C. § 1; broadcast station to communicate its message including real-time pacing information for b. permanently enjoin and restrain to viewers within the DMA in which the booked sales for current and future months, Defendants from sharing pacing or other broadcast television station is located. directly between broadcast station competitively sensitive information or 15. Broadcast stations typically divide their employees. These exchanges predominantly agreeing to share such information with any sale of spot advertising into two categories: concerned local sales, but sometimes other broadcast station or broadcast station local sales and national sales. Local sales are pertained to all sales or national sales. group, directly or indirectly, and requiring sales a broadcast station makes through its 21. These exchanges of pacing information Defendants to take such internal measures as own local sales staff, typically to advertisers allowed stations to better understand, in real are necessary to ensure compliance with that located within the DMA. National sales are time, the availability of inventory on injunction; sales a broadcast station makes through competitors’ stations, which is often a key c. award the United States the costs of this either a Sales Rep Firm or through a centrally factor affecting negotiations with buyers over action; and located broadcast group staff, typically to spot advertising prices. The exchanges also d. award such other relief to the United regional or national advertisers. helped stations to anticipate whether States as the Court may deem just and 16. Sales Rep Firms represent broadcast competitors were likely to raise, maintain, or proper. stations in negotiations with advertisers’ or lower spot advertising prices. Understanding Dated: December 13, 2018 competitors’ pacing can help stations gauge advertisers’ agents regarding the sale of Respectfully submitted, broadcast stations’ spot advertising. There are competitors’ and advertisers’ negotiation two primary Sales Rep Firms in the United strategies, inform their own pricing FOR PLAINTIFF UNITED STATES OF States. Often a Sales Rep Firm represents two strategies, and help them resist more AMERICA, or more competing stations in the same effectively advertisers’ attempts to obtain Makan Delrahim (D.C. Bar #457795), lll DMA. In those cases, the Sales Rep Firms lower prices by playing stations off of one Assistant Attorney General for Antitrust. another. Defendants’ information exchanges purportedly erect firewalls to prevent llllllllllll therefore distorted the normal price-setting William J. Rinner, coordination and information sharing Acting Chief of Staff and Senior Counsel. between sales teams representing competing mechanism in the spot advertising market stations. and harmed the competitive process. Patricia A. Brink, llllllllllll 22. Defendants’ and Other Broadcasters’ Director of Civil Enforcement. V. THE UNLAWFUL AGREEMENTS regular information exchanges, directly and Owen M. Kendler, llllllllllll 17. Defendants and Other Broadcasters through the Sales Rep Firms, reflect Chief, Media, Entertainment & Professional have agreed in many DMAs across the United concerted action between horizontal Services Section competitors in the broadcast television spot States to reciprocally exchange revenue Yvette Tarlov (D.C. Bar #442452), lllll advertising market. pacing information. Certain Defendants also Assistant Chief, Media, Entertainment & engaged in the exchange of other forms of VI. VIOLATION ALLEGED Professional Services Section. competitively sensitive sales information in Lee F. Berger (D.C. Bar #482435), Richard A. certain DMAs. Pacing compares a broadcast (Violation of Section 1 of the Sherman Act) Hellings, Jr., Gregg Malawer (D.C. Bar # station’s revenues booked for a certain time 23. The United States repeats and realleges 481685), Bennett J. Matelson (D.C. Bar period to the revenues booked for the same paragraphs 1 through 22 as if fully set forth #454551), llllllllllllllll point in time in the previous year. Pacing herein. Monsura A. Sirajee, indicates how each station is performing 24. Defendants violated Section 1 of the versus the rest of the market and provides Sherman Act, 15 U.S.C. § 1, by agreeing to United States Department of Justice, insight into each station’s remaining spot exchange competitively sensitive Antitrust Division, Media, Entertainment & advertising inventory for the period. information, either directly or through Sales Professional Services Section, 450 Fifth 18. Defendants’ exchange of competitively Rep Firms. Defendants’ exchange of pacing Street NW, Suite 4000, Washington, DC sensitive information has taken at least two information resulted in anticompetitive 20530, Telephone: (202) 514–0230, forms. effects in the broadcast television spot Facsimile: (202) 514–7308. 19. First, Defendants and Other advertising markets in many DMAs UNITED STATES DISTRICT COURT Broadcasters regularly exchanged pacing throughout the United States. FOR THE DISTRICT OF COLUMBIA information through the Sales Rep Firms. At 25. The scheme consists of exchanges least once per quarter, but frequently more between Defendants and Other Broadcasters, United States of America; Plaintiff, v. often, the Sales Rep Firms representing the either directly or through the Sales Rep Sinclair Broadcast Group, Inc., et al., Big 4 stations in a DMA exchanged real-time Firms, in many DMAs, of their stations’ Defendants. pacing information regarding each station’s revenue pacing information or, for certain Case No. 1:18–cv–2609 revenues, and reported the information to the Defendants in certain DMAs, other Judge: Tanya S. Chutkan Defendants and the other Big 4 station competitively sensitive information owners in the DMA. Typically, the exchanges concerning spot advertising sales. [PROPOSED] FINAL JUDGMENT included data on individual stations’ booked 26. These unlawful information sharing WHEREAS, Plaintiff, United States of sales for current and future months as well agreements between Defendants, Other America, filed its Amended Complaint on as a comparison to past periods. To the Broadcasters, and Sales Rep Firms have had, December ___, 2018, alleging that Defendant extent a Sales Rep Firm represents more than and likely will continue to have, Nexstar Media Group, Inc., among others, one Big 4 station in a DMA through sales anticompetitive effects in spot advertising violated Section 1 of the Sherman Act, 15 teams separated by a supposed firewall, the markets by disrupting the normal U.S.C. § 1, the United States and Defendant, exchange of pacing and other competitively mechanisms for negotiating and setting by their respective attorneys, have consented sensitive information occurred between the prices and harming the competitive process. to the entry of this Final Judgment without sales teams and through those firewalls. Once 27. Defendants’ agreements to exchange trial or adjudication of any issue of fact or given to the Defendants and Other competitively sensitive information are law; Broadcasters in the DMA, the competitors’ unreasonable restraints of interstate trade and AND WHEREAS, this Final Judgment does pacing information was then disseminated to commerce. This offense is likely to continue not constitute any evidence against or

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admission by any party regarding any issue used by the Investing in Television BIA 2. Knowingly use Competitively Sensitive of fact or law; Market Report 2018. Information from or regarding any Station in AND WHEREAS, the United States and H. ‘‘Management’’ means all directors and the same DMA it does not own or operate; Defendant agree to be bound by the officers of Defendant, or any other employee 3. Encourage or facilitate the provisions of this Final Judgment pending its with management or supervisory Communication of Competitively Sensitive approval by this Court; responsibilities for Defendant’s business or Information to or from any Station in the AND WHEREAS, the Defendant agrees to operations related to the sale of spot same DMA it does not own or operate; or undertake certain actions and to refrain from advertising on any Station. 4. Attempt to enter into, enter into, engaging in certain forms of information I. ‘‘Non-Public Information’’ means maintain, or enforce any agreement to sharing with its competitors; information that is not available from public Communicate Competitively Sensitive NOW THEREFORE, before any testimony sources or generally available to the public. Information with any Station in the same is taken, without trial or adjudication of any Measurement or quantification of a Station’s DMA it does not own or operate. issue of fact or law, and upon consent of the future holding capacity is Non-Public B. The prohibitions under Paragraph IV(A) parties, it is ORDERED, ADJUDGED, AND Information, but measurement or apply to Defendant’s Communicating or agreeing to Communicate through a Sales DECREED: quantification of a Station’s past holding Representative Firm or a third-party agent at capacity is not Non-Public Information. For I. JURISDICTION Defendant’s instruction or request. the avoidance of doubt, the fact that This Court has jurisdiction over the subject C. Defendant shall not sell any Station information is available by paid subscription matter and each of the parties to this action. owned by the Defendant as of October 1, does not on its own render the information The allegations in the Complaint arise under 2018 to any Person unless that Person has public. Section 1 of the Sherman Act, as amended, first executed the Acknowledgment of J. ‘‘Person’’ means any natural person, 15 U.S.C. § 1. See 28 U.S.C. § 1331. Applicability, attached as Exhibit 2. corporation, company, partnership, joint Defendant shall submit any II. DEFINITIONS venture, firm, association, proprietorship, Acknowledgement of Applicability to the As used in this Final Judgment: agency, board, authority, commission, office, United States within 15 days of A. ‘‘Advertiser’’ means an advertiser, an or other business or legal entity, whether consummating the sale of such Station. The advertiser’s buying agent, or an advertiser’s private or governmental. United States, in its sole discretion, may representative. K. ‘‘Sales Representative Firm’’ means any waive the prohibition in this Paragraph IV(C) B. ‘‘Agreement’’ means any agreement, organization, including without limitation on a Station-by-Station basis. Alternatively, understanding, pact, contract, or Katz Media Group, Inc. and Cox Reps, Inc., the United States and the Person signing the arrangement, formal or informal, oral or and their respective subsidiaries and Acknowledgement of Applicability may written, between two or more Persons. divisions, that represents a Station or its agree to void the Acknowledgement of C. ‘‘Communicate,’’ ‘‘Communicating,’’ and owner in the sale of spot advertising. Applicability at any time. The first sentence ‘‘Communication(s)’’ means to provide, send, L. ‘‘Sales Representative Firm Manager’’ of this paragraph shall not apply to the sale discuss, circulate, exchange, request, or means, for each of Defendant’s Sales of any Station to a Person already bound to solicit information, whether directly or Representative Firms, the employee of the a final judgment entered by a court regarding indirectly, and regardless of the means by Sales Representative Firm with primary the Communication of Competitively which it is accomplished, including orally or responsibility for the relationship with Sensitive Information. by written means of any kind, such as Defendant. electronic communications, e-mails, M. ‘‘Sales Staff’’ means Defendant’s V. CONDUCT NOT PROHIBITED facsimiles, telephone communications, employees with responsibility for the sale of A. Nothing in Section IV shall prohibit voicemails, text messages, audio recordings, spot advertising on any Station. Defendant from Communicating, using, or meetings, interviews, correspondence, N. ‘‘Station’’ means any broadcast encouraging or facilitating the exchange of written or recorded information, television station, its successors and assigns, Communication of, Competitively Sensitive or face-to-face meetings. and its subsidiaries, divisions, groups, and its Information with an actual or prospective D. ‘‘Competitively Sensitive Information’’ owner or operator and its directors, officers, Advertiser, except that, if the Advertiser is means any of the following information, less managers, and employees, unless a Station another Station, Defendant’s Communicating, than eighteen months old, of Defendant or owns, is owned by, or is under common using, or encouraging or facilitating the any broadcast television station regarding the ownership with a Sales Representative Firm, Communication of, Competitively Sensitive sale of spot advertising on broadcast in which case that Sales Representative Firm Information is excluded from the terms of television stations: Non-Public Information will not be considered a Station. Section IV only insofar as is reasonably relating to pricing or pricing strategies, necessary to negotiate the sale of spot III. APPLICABILITY pacing, holding capacity, revenues, or market advertising on broadcast television stations. shares. Reports containing only aggregated This Final Judgment applies to Defendant, For the avoidance of doubt, Defendant is not market-level or national data are not other Persons in active concert or prohibited from internally using Competitively Sensitive Information, but participation with Defendant who receive Competitively Sensitive Information received reports (including by paid subscription) that actual notice of this Final Judgment by from an Advertiser that is a Station under the are customized or confidential to a particular personal service or otherwise, and any preceding sentence, but Defendant is Station or broadcast television station group Person that signs an Acknowledgment of prohibited from Communicating that are Competitively Sensitive Information. Applicability, attached as Exhibit 2, to the Competitively Sensitive Information to a E. ‘‘Cooperative Agreement’’ means (1) extent set forth therein, as a condition of the Station in the same DMA that it does not own joint sales agreements, joint operating purchase of a Station owned by Defendant as or operate. agreements, local marketing agreements, of October 1, 2018. This Final Judgment B. Nothing in Section IV shall prohibit news share agreements, or shared services applies to Defendant’s actions performed Defendant from, after securing advice of agreements, or (2) any agreement through under any Cooperative Agreement, even if counsel and in consultation with the which a Person exercises control over any those actions are taken on behalf of a third Antitrust Compliance Officer, broadcast television station not owned by the party. This Final Judgment is fully Communicating, using, encouraging or Person. enforceable, including by penalty of facilitating the Communication of, or F. ‘‘Defendant’’ means Nexstar Media contempt, against all of the foregoing. attempting to enter into, entering into, Group, Inc., a Delaware corporation with its maintaining, or enforcing any agreement to headquarters in Irving, Texas, its successors IV. PROHIBITED CONDUCT Communicate Competitively Sensitive and assigns, and its subsidiaries, divisions, A. Defendant’s Management and Sales Staff Information with any Station when such and Stations, and their directors, officers, and shall not, directly or indirectly: Communication or use is (a) for the purpose employees. 1. Communicate Competitively Sensitive of evaluating or effectuating a bona fide G. ‘‘DMA’’ means Designated Market Area Information to any Station in the same DMA acquisition, disposition, or exchange of as defined by A.C. Nielsen Company and it does not own or operate; Stations or related assets, or (b) reasonably

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necessary for achieving the efficiencies of accordance with the doctrine established in Court, and a cover letter in a form attached any other legitimate competitor Eastern Railroad Presidents Conference v. as Exhibit 1; collaboration. With respect to any such Noerr Motor Freight, Inc., 365 U.S. 127 2. within fourteen days of entry of the agreement: (1961), United Mine Workers v. Pennington, Final Judgment, in a manner to be devised by 1. For all agreements under Part V(B)(a) 381 U.S. 657 (1965), and their progeny. Defendant and approved by the United with any other Station to Communicate D. Nothing in Section IV prohibits States, provide Defendant’s Management and Competitively Sensitive Information that Defendant from (1) Communicating, Sales Staff reasonable notice of the meaning Defendant enters into, renews, or encouraging or facilitating the and requirements of this Final Judgment; affirmatively extends after the date of entry Communication of, or attempting to enter 3. annually brief Defendant’s Management of this Final Judgment, Defendant shall into, entering into, maintaining, or enforcing and Sales Staff on the meaning and maintain documents sufficient to show: any agreement to Communicate requirements of this Final Judgment and the i. the specific transaction or proposed Competitively Sensitive Information for the U.S. antitrust laws; transaction to which the sharing of purpose of aggregation if (a) Competitively 4. brief any person who succeeds a person Competitively Sensitive Information relates; Sensitive Information is sent to or received in any position identified in Paragraph ii. the employees, identified with from, and the aggregation is managed by, a VI(C)(3), within sixty days of such reasonable specificity, who are involved in third party not owned or operated by any succession; the sharing of Competitively Sensitive Station; (b) the information disseminated by 5. obtain from each person designated in Information; and the aggregator is limited to historical total Paragraph VI(C)(3) or VI(C)(4), within thirty iii. the termination date or event of the broadcast television station revenue or other days of that person’s receipt of the Final sharing of Competitively Sensitive geographic or characteristic categorization Judgment, a certification that the person (i) Information. (e.g., national, local, or political sales has read and understands and agrees to abide 2. All agreements under Part V(B)(b) with revenue); and (c) any information by the terms of this Final Judgment; (ii) is not any other Station to Communicate disseminated is sufficiently aggregated such aware of any violation of the Final Judgment Competitively Sensitive Information that that it would not allow a recipient to that has not been reported to Defendant; and Defendant enters into, renews, or identify, deduce, or estimate the prices or (iii) understands that failure to comply with affirmatively extends after the date of entry pacing of any individual broadcast television this Final Judgment may result in an of this Final Judgment shall be in writing, station not owned or operated by that enforcement action for civil or criminal and shall: recipient; or (2) using information that meets contempt of court; i. identify and describe, with specificity, the requirements of Parts V(D)(1)(a)–(c). 6. annually communicate to Defendant’s the collaboration to which it is ancillary; Management and Sales Staff that they may ii. be narrowly tailored to permit the VI. REQUIRED CONDUCT disclose to the Antitrust Compliance Officer, Communication of Competitively Sensitive A. Within ten days of entry of this Final without reprisal for such disclosure, Information only when reasonably necessary Judgment, Defendant shall appoint an information concerning any violation or and only to the employees reasonably Antitrust Compliance Officer who is an potential violation of this Final Judgment or necessary to effectuate the collaboration; internal employee or Officer of the the U.S. antitrust laws by Defendant; iii. identify with reasonable specificity the Defendant, and identify to the United States 7. within thirty days of the latest filing of Competitively Sensitive Information the Antitrust Compliance Officer’s name, the Complaint, Proposed Final Judgment, or Communicated pursuant to the agreement business address, telephone number, and Competitive Impact Statement in this action, and identify the employees to receive the email address. Within forty-five days of a Defendant shall provide notice, in each DMA Competitively Sensitive Information; vacancy in the Antitrust Compliance Officer in which Defendant owns or operates a iv. contain a specific termination date or position, Defendant shall appoint a Station, to (i) every full power Station in that event; and replacement, and shall identify to the United DMA that sells broadcast television spot v. be signed by all parties to the agreement, States the Antitrust Compliance Officer’s advertising that Defendant does not own or including any modifications to the name, business address, telephone number, operate and (ii) any Sales Representative agreement. and email address. Defendant’s initial or Firm selling advertising in that DMA on 3. For Communications under Part V(B)(a) replacement appointment of an Antitrust behalf of Defendant, of the Complaint, above, Defendant shall maintain copies of all Compliance Officer is subject to the approval Proposed Final Judgment, and Competitive materials required under Paragraph V(B)(1) of the United States, in its sole discretion. Impact Statement in a form and manner to be for five years or the duration of the Final B. The Antitrust Compliance Officer shall proposed by Defendant and approved by the Judgment, whichever is shorter, following have, or shall retain outside counsel who has, United States in its sole discretion. entry into any agreement to Communicate or the following minimum qualifications: Defendant shall provide the United States receive Competitively Sensitive Information, 1. be an active member in good standing with its proposal, including the list of and Defendant shall make such documents of the bar in any U.S. jurisdiction; and recipients, within ten days of the filing of the available to the United States upon request, 2. have at least five years’ experience in Complaint; and if such request is made during the legal practice, including experience with 8. maintain for five years or until preservation period. antitrust matters, unless finding an Antitrust expiration of the Final Judgement, whichever 4. For Communications under Part V(B)(b) Compliance Officer or outside counsel is shorter, a copy of all materials required to above, Defendant shall furnish a copy of all meeting this experience requirement is a be issued under Paragraph VI(C), and furnish materials required under Paragraph V(B)(2) to hardship on or is not reasonably available to them to the United States within ten days if the United States within thirty days of the the Defendant, under which circumstances requested to do so, except documents entry, renewal, or extension of the agreement. the Defendant may select an Antitrust protected under the attorney-client privilege 5. For purposes of this Section V(B) only, Compliance Officer or shall retain outside or the attorney work-product doctrine. For all a Joint Sales Agreement, Local Marketing counsel who has at least five years’ materials required to be furnished under Agreement, or similar agreement pursuant to experience in legal practice, including Paragraph VI(C) which Defendant claims are which the Defendant Communicates, uses, experience with regulatory or compliance protected under the attorney-client privilege encourages or facilitates the Communication matters. or the attorney work-product doctrine, of, or attempts to enter into, enters into, C. The Antitrust Compliance Officer shall, Defendant shall furnish to the United States maintains, or enforces any agreement to directly or through the employees or counsel a privilege log. Communicate Competitively Sensitive working at the Antitrust Compliance Officer’s D. Defendant shall: Information related solely to the sale of spot responsibility and direction: 1. upon Management or the Antitrust advertising for which Defendant is 1. within fourteen days of entry of the Compliance Officer learning of any violation responsible on a Station, shall be considered Final Judgment, furnish to all of Defendant’s or potential violation of any of the terms and a ‘‘legitimate competitor collaboration’’ Management and Sales Staff and Sales conditions contained in this Final Judgment, under Part V(B)(b). Representative Firm Managers a copy of this (i) promptly take appropriate action to C. Nothing in Section IV shall prohibit Final Judgment, the Competitive Impact investigate, and in the event of a violation, Defendant from engaging in conduct in Statement filed by the United States with the terminate or modify the activity so as to

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comply with this Final Judgment, (ii) VII. DEFENDANT’S COOPERATION C. Subject to the full, truthful, and maintain all documents related to any A. Defendant shall cooperate fully and continuing cooperation of Defendant, as violation or potential violation of this Final truthfully with the United States in any defined in Paragraph VII(A), the United Judgment for a period of five years or the investigation or litigation examining whether States will not bring any further civil action duration of this Final Judgement, whichever or alleging that Defendant, any Station that or any criminal charges against Defendant is shorter, and (iii) maintain, and furnish to Defendant does not own or operate, or any related to any Communication of the United States at the United States’ Sales Representative Firm Communicated Competitively Sensitive Information or any request, a log of (a) all such documents and Competitively Sensitive Information with or agreement to Communicate Competitively documents for which Defendant claims among Defendant or any other Station or any Sensitive Information with any other Station protection under the attorney-client privilege Sales Representative Firm in violation of it does not own or operate or such other or the attorney work product doctrine, and Section 1 of the Sherman Act, as amended, Station’s Sales Representative Firm when (b) all potential and actual violations, even if 15 U.S.C. § 1. Defendant shall use its best that agreement: no documentary evidence regarding the efforts to ensure that all current and former 1. was Communicated, entered into and violations exist; officers, directors, employees, and agents also terminated on or before the date of the filing 2. within thirty days of Management or the fully and promptly cooperate with the United of the Complaint in this action (or in the case Antitrust Compliance Officer learning of any States. The full, truthful, and continuing of a Station that is acquired by Defendant such violation or potential violation of any of cooperation of Defendant shall include, but after entry of this Final Judgment, was the terms and conditions contained in this not be limited to: Communicated or entered into before the Final Judgment, file with the United States a 1. providing sworn testimony, that is not acquisition and terminated within 120 days statement describing any violation or protected by the attorney-client privilege or after the closing of the acquisition); and potential violation of any of the terms and the attorney work product doctrine, to the 2. does not constitute or include an conditions contained in this Final Judgment, United States regarding the Communicating agreement to fix prices or divide markets. which shall include a description of any of Competitively Sensitive Information or D. The United States’ agreement set forth Communications constituting the violation or any agreement with any other Station it does in Paragraph VII(C) does not apply to any potential violation, including the date and not own or such other Station’s Sales acts of perjury or subornation of perjury (18 place of the Communication, the Persons Representative Firm to Communicate U.S.C. §§ 1621–22), making a false statement involved, and the subject matter of the Competitively Sensitive Information while an or declaration (18 U.S.C. §§ 1001, 1623), Communication; employee of the Defendant; contempt (18 U.S.C. §§ 401–402), or 3. establish a whistleblower protection 2. producing, upon request of the United obstruction of justice (18 U.S.C. § 1503, et policy, which provides that any employee States, all documents, data, and other seq.) by the Defendant or its officers, may disclose, without reprisal for such materials, wherever located, to the extent not directors, and employees. The United States’ disclosure, to the Antitrust Compliance protected under the attorney-client privilege agreement set forth in Paragraph VII(C) does Officer information concerning any violation or the attorney work-product doctrine, in the or potential violation by the Defendant of this not release any claims against any Sales possession, custody, or control of Defendant, Representative Firm. Final Judgment or U.S. antitrust laws; that relate to the Communication of 4. have its CEO, General Counsel or Chief Competitively Sensitive Information or any VIII. COMPLIANCE INSPECTION Legal Officer certify in writing to the United agreement with any other Station or such A. For the purposes of determining or States annually on the anniversary date of the other Station’s Sales Representative Firm to securing compliance with this Final entry of this Final Judgment that Defendant Communicate Competitively Sensitive has complied with the provisions of this Judgment or of any related orders, or of Information, and a log of documents determining whether the Final Judgment Final Judgment; protected by the attorney-client privilege or 5. maintain and produce to the United should be modified, and subject to any the attorney work product doctrine; legally recognized privilege, from time to States upon request: (i) a list identifying all 3. making available for interview any employees having received the annual time authorized representatives of the United officers, directors, employees, and agents of States Department of Justice, including antitrust briefing required under Paragraphs Defendant if so requested on reasonable VI(C)(3) and VI(C)(4); and (ii) copies of all consultants and other persons retained by the notice by the United States; and United States, shall, upon written request of materials distributed as part of the annual 4. testifying at trial and other judicial an authorized representative of the Assistant antitrust briefing required under Paragraphs proceedings fully, truthfully, and under oath, Attorney General in charge of the Antitrust VI(C)(3) and V(C)(4). For all materials when called upon to do so by the United Division, and on reasonable notice to requested to be produced under this States; Defendant, be permitted: Paragraph VI(D)(5) for which Defendant 5. provided however, that the obligations claims is protected under the attorney-client of Defendant to cooperate fully with the 1. to access during Defendant’s office hours privilege or the attorney work-product United States as described in this Section VII to inspect and copy, or at the option of the doctrine, Defendant shall furnish to the shall cease upon the conclusion of all of the United States, to require Defendant to United States a privilege log; and United States’ investigations and the United provide electronic or hard copies of all 6. instruct each Sales Representative Firm States’ litigations examining whether or books, ledgers, accounts, records, data, and Manager that the Sales Representative Firm alleging that Defendant, any Station that documents in the possession, custody, or shall not Communicate any of Defendant’s Defendant does not own or operate or such control of Defendant, relating to any matters Competitively Sensitive Information in a way other Station’s Sales Representative Firm that are the subject of this Final Judgment, that would violate Sections IV and V of this Communicated Competitively Sensitive not protected by the attorney-client privilege Final Judgment if the Sales Representative Information or with or among Defendant or or the attorney work product doctrine; and Firm were included in the definition of any other Station or any Sales Representative 2. to interview, either informally or on the ‘‘Defendant’’ in Paragraph II(F), in a form and Firm in violation of Section 1 of the Sherman record, Defendant’s officers, employees, or manner to be proposed by Defendant and Act, as amended, 15 U.S.C. § 1, including agents, who may have their individual approved by the United States in its sole exhaustion of all appeals or expiration of counsel present, regarding such matters. The discretion, maintained and produced to the time for all appeals of any Court ruling in interviews shall be subject to the reasonable United States upon request. each such matter, at which point the United convenience of the interviewee and without E. For the avoidance of doubt, the term States will provide written notice to restraint or interference by Defendant; and ‘‘potential violation’’ as used in Paragraph Defendant that its obligations under this 3. to obtain from Defendant written reports VI(D) does not include the discussion of Section VII have expired. or responses to written interrogatories, of future conduct. B. Defendant is obligated to impose a information not protected by the attorney- F. If Defendant acquires a Station after litigation hold until the United States client privilege or attorney work product entry of this Final Judgment, this Section VI provides written notice to the Defendant that doctrine, under oath if requested, relating to will not apply to that acquired Station or the its obligations under this Section VII have any matters that are the subject of this Final employees of that acquired Station until 120 expired. This Paragraph VII(B) does not Judgment as may be requested. days after closing of the acquisition of that apply to documents created after entry of this B. No information or documents obtained acquired Station. Final Judgment. by the means provided in this Section VIII

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shall be divulged by the United States to any to reimburse the United States for the fees firm), competitively sensitive information Person other than an authorized and expenses of its attorneys, as well as any with or from any employee, agent, or representative of the executive branch of the other costs including experts’ fees, incurred representative of another broadcast television United States, except in the course of legal in connection with that enforcement effort, station in the same DMA it does not own or proceedings to which the United States is a including in the investigation of the potential operate. Competitively sensitive information party (including grand jury proceedings), or violation. means any non-public information regarding for the purpose of securing compliance with the sale of spot advertising on broadcast XI. EXPIRATION OF FINAL JUDGMENT this Final Judgment, or for law enforcement television stations, including information purposes, or as otherwise required by law. Unless this Court grants an extension, this relating to any pricing or pricing strategies, C. If at the time information or documents Final Judgment shall expire seven years from pacing, holding capacity, revenues, or market are furnished by Defendant to the United the date of its entry, except that after five shares. There are limited exceptions to this States, Defendant represents and identifies in years from the date of its entry, this Final restriction, which are listed in the judgment. writing the material in any such information Judgment may be terminated upon notice by The company will provide briefing on the or documents to which a claim of protection the United States to the Court and Defendant legitimate or illegitimate exchange of may be asserted under Rule 26(c)(1)(G) of the that the continuation of the Final Judgment information. You must consult with me if Federal Rules of Civil Procedure, and no longer is necessary or in the public you have any questions on whether a Defendant marks each pertinent page of such interest. particular circumstance is subject to an exception under the judgment. material, ‘‘Subject to claim of protection XII. NOTICE under Rule 26(c)(1)(G) of the Federal Rules A copy of the judgment is attached. Please of Civil Procedure,’’ then the United States For purposes of this Final Judgment, any read it carefully and familiarize yourself with shall give Defendant ten calendar days’ notice or other communication required to be its terms. The judgment, rather than the notice prior to divulging such material in any provided to the United States shall be sent above description, is controlling. If you have to the person at the address set forth below legal proceeding (other than a grand jury any questions about the judgment or how it (or such other addresses as the United States proceeding). affects your sale of spot advertising, please may specify in writing to Defendant): contact me as soon as possible. IX. RETENTION OF JURISDICTION Chief, Media, Entertainment, and Please sign and return the attached This Court retains jurisdiction to enable Professional Services Section, U.S. Employee Certification to [Defendant’s any party to this Final Judgment to apply to Department of Justice, Antitrust Division, Antitrust Compliance Officer] within thirty this Court at any time for further orders and 450 Fifth Street NW, Suite 4000, days of your receipt of this letter. Thank you directions as may be necessary or appropriate Washington, DC 20530 for your cooperation. to carry out or construe this Final Judgment, XIII. PUBLIC INTEREST DETERMINATION Sincerely, to modify any of its provisions, to enforce [Defendant’s Antitrust Compliance Officer] compliance, and to punish violations of its Entry of this Final Judgment is in the provisions. public interest. The parties have complied Employee Certification with the requirements of the Antitrust I, lll [name], lll [position] at lll X. ENFORCEMENT OF FINAL JUDGMENT Procedures and Penalties Act, 15 U.S.C. § 16, [station or location] do hereby certify that I including making copies available to the A. The United States retains and reserves (i) have read and understand, and agree to public of this Final Judgment, the all rights to enforce the provisions of this abide by, the terms of the Final Judgment; (ii) Competitive Impact Statement, and any Final Judgment, including its right to seek an am not aware of any violation of the Final comments thereon and the United States’ order of contempt from this Court. Defendant Judgment that has not been reported to responses to comments. Based upon the agrees that in any civil contempt action, any [Defendant]; and (iii) understand that my record before the Court, which includes the motion to show cause, or any similar civil failure to comply with this Final Judgment Competitive Impact Statement and any action brought by the United States regarding may result in an enforcement action for civil comments and response to comments filed an alleged violation of this Final Judgment, or criminal contempt of court. with the Court, entry of this Final Judgment the United States may establish a violation of Name: the decree and the appropriateness of any is in the public interest. ll Date: remedy therefor by a preponderance of the IT IS SO ORDERED by the Court, this llll ll evidence, and Defendant waives any day of , 201 . EXHIBIT 2 argument that a different standard of proof Court approval subject to procedures of UNITED STATES DISTRICT COURT should apply. Antitrust Procedures and Penalties Act, 15 FOR THE DISTRICT OF COLUMBIA B. The Final Judgment should be U.S.C. § 16 interpreted to give full effect to the lllllllllllllllllllll United States of America; Plaintiff, v. procompetitive purposes of the antitrust laws United States District Judge Sinclair Broadcast Group, Inc., et al., Defendants. and to restore all competition the United EXHIBIT 1 States alleged was harmed by the challenged Case No. 1:18–cv–2609 conduct. Defendant agrees that it may be held [Company Letterhead] Judge: Tanya S. Chutkan in contempt of, and that the Court may [Name and Address of Antitrust Compliance enforce, any provision of this Final Judgment Officer] ACKNOWLEDGEMENT OF APPLICABILITY that, as interpreted by the Court in light of Re: Prohibitions Against Sharing of The undersigned acknowledges that [Full these procompetitive principles and applying Competitively Sensitive Information Buyer Name], including its successors and ordinary tools of interpretation, is stated Dear [XX]: assigns, and its subsidiaries, divisions, and specifically and in reasonable detail, whether I provide you this notice regarding a broadcast television stations, and their or not it is clear and unambiguous on its face. judgment recently entered by a federal judge directors, officers, and employees In any such interpretation, the terms of this in Washington, D.C. prohibiting the sharing (‘‘Acquirer’’), following consummation of the Final Judgment should not be construed of certain information with other broadcast Acquirer’s acquisition of [insert names of against either party as the drafter. television station(s). station or stations acquired] (each, an C. In any enforcement proceeding in which The judgment applies to our company and ‘‘Acquired Station’’), is bound by the Final the Court finds that Defendant has violated all of its employees, including you, so it is Judgment entered by this Court on [date] this Final Judgment, the United States may important that you understand the (‘‘Final Judgment’’), as if the Acquirer were apply to the Court for a one-time extension obligations it imposes on us. [CEO Name] has a Defendant under the Final Judgment, as of this Final Judgment, together with such asked me to let each of you know that [s/he] follows: other relief as may be appropriate. In expects you to take these obligations 1. The Acquirer shall be bound in full by connection with any successful effort by the seriously and abide by them. all Sections of the Consent Decree not United States to enforce this Final Judgment The judgment prohibits us from sharing or specifically discussed below. against Defendant, whether litigated or receiving, directly or indirectly (including 2. As to Sections IV, V, and VII of the Final resolved prior to litigation, Defendant agrees through our national sales representative Judgment, the Acquirer is bound to the Final

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Judgment only as to (i) each Acquired I. Nature and Purpose of the Proceeding staff or by a national sales representative firm Station, each Acquired Station’s successors On November 13, 2018, the United States (‘‘Sales Rep Firm’’) to regional or national and assigns, and each Acquired Station’s filed a civil antitrust complaint alleging that advertisers. subsidiaries and divisions, and each six Defendants agreed among themselves and Nexstar owns or operates 105 broadcast Acquired Station’s directors, officers, and other broadcast television stations in many television stations in 93 DMAs. employees, (ii) Acquirer’s officers and local markets to reciprocally exchange Nexstar, along with certain other television directors only with respect to any station-specific, competitively sensitive broadcast station groups, compete in various responsibilities or actions regarding any information regarding spot advertising configurations in multiple DMAs across the Acquired Stations, and (iii) employees with revenues. The Complaint alleges those United States. Nexstar sells spot advertising management or supervisory responsibilities Defendants’ agreements are unreasonable time to advertisers that seek to target viewers in the DMAs in which Nexstar operates. for Acquirer’s business or operations related restraints of trade that are unlawful under Prices are individually negotiated with to the sale of spot advertising on any Section 1 of the Sherman Act, 15 U.S.C. § 1. advertisers, and advertisers are able to ‘‘play Acquired Station, only with respect to those The Complaint seeks injunctive relief to off’’ the stations against each other to obtain responsibilities. prevent those Defendants from exchanging competitively sensitive information with and competitive rates. 3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), There are two primary Sales Rep Firms in VI(C)(8), VI(D), VI(E), and VIII of the Final among competing broadcast television stations. On December 13, 2018, the United the United States today, and each represents Judgment, the Acquirer is bound to the Final hundreds of television stations throughout Judgment only as to (i) each Acquired States filed an Amended Complaint, adding Nexstar as a Defendant. Besides this addition, the country in the sale of national advertising Station, each Acquired Station’s successors the Amended Complaint is the same as the time. It is common for one Sales Rep Firm and assigns, and each Acquired Station’s Complaint in all material respects. to represent multiple competing stations in subsidiaries and divisions, and each Along with the Amended Complaint, the the same DMA. In such cases, the stations Acquired Station’s directors, officers, and United States filed a proposed Final and the Sales Rep Firms purportedly create employees, (ii) Acquirer’s officers and Judgment for Nexstar. The proposed Final firewalls to prevent coordination and directors, and (iii) employees with Judgment prohibits sharing of competitively information sharing between the sales teams management or supervisory responsibilities sensitive information, requires Nexstar to representing competing stations. for Acquirer’s business or operations related implement antitrust compliance training to the sale of spot advertising on any B. The Exchanges of Competitively Sensitive programs, and imposes cooperation and Information Acquired Station. reporting requirements. 4. The release contained in Sections VII(C) The United States and Nexstar have The Amended Complaint alleges that and (D) applies to the Acquirer, but only to stipulated that the proposed Final Judgment Nexstar and other broadcasters have agreed civil actions or criminal charges arising from may be entered after compliance with the in many DMAs to reciprocally exchange actions taken by any Acquired Station. APPA, unless the United States withdraws its station-specific revenue pacing data. Revenue 5. The Acquirer shall not be bound by consent. Entry of the proposed Final pacing data compares a station’s revenues Sections VI(C)(1), VI(C)(2),VI(C)(5), VI(C)(7), Judgment would terminate this action, except booked for a certain time period to the and VI(F) of the Final Judgment at all. that the Court would retain jurisdiction to revenues booked for the same point in time 6. Section VI(A) applies to the Acquirer, construe, modify, or enforce the provisions of in the previous year, indicating how each but is modified to make the initial period for the proposed Final Judgment and to punish station is performing versus the rest of the market and providing insight into each appointing an Antitrust Compliance Officer violations thereof. station’s remaining spot advertising in the first sentence 120 days from II. Description of the Events Giving Rise to inventory for the current period or future consummation of the Acquirer’s acquisition the Alleged Violation periods. The exchanges were systematic and of the Acquired Station or Acquired Stations. A. Industry Background typically included non-public pacing data on This Acknowledgement of Applicability Broadcast television stations sell national revenues, local revenues, or both, may be voided by a joint written agreement depending on the DMA. The Amended between the United States and the Acquirer. advertising time to businesses that want to advertise their products to television viewers. Complaint further alleges that Nexstar Dated: [ ] Broadcast television ‘‘spot’’ advertising,1 engaged in the exchange of other forms of Respectfully submitted, which typically comprises the majority of a competitively sensitive information relating lllllllllllllllllllll station’s revenues, is sold directly by the to spot advertising in certain DMAs. The Amended Complaint alleges that [Counsel for Acquirer] station itself or through its sales representatives to advertisers who want to Nexstar exchanged pacing information in at UNITED STATES DISTRICT COURT target viewers in specific geographic areas least two ways. First, Nexstar and other FOR THE DISTRICT OF COLUMBIA called Designated Market Areas (‘‘DMAs’’).2 television broadcast stations exchanged United States of America, Plaintiff, v. Broadcast stations typically make their information through the Sales Rep Firms. The information was passed both within and Sinclair Broadcast Group, Inc., Raycom spot advertising sales through two channels: between Sales Rep Firms representing Media, Inc., Tribune Media Company, (1) local sales, which are sales made by the competing stations, and was done with Meredith Corporation, Griffin station’s own local sales staff to advertisers who are usually located within the DMA; and Nexstar’s knowledge and frequently at Communications, LLC, Dreamcatcher Nexstar’s instruction. Second, in some Broadcasting, LLC, and Nexstar Media (2) national sales, which are sales made either by the broadcast group’s national sales DMAs, Nexstar and other broadcasters Group, Inc., Defendants. exchanged pacing information directly Case No. 1:18–cv–2609–TSC 1 between local station employees. Judge: Tanya S. Chutkan Spot advertising differs from other types of The Amended Complaint alleges that these television advertising, such as network and exchanges of pacing information allowed COMPETITIVE IMPACT STATEMENT AS syndicated television advertising, which are sold by stations to better understand, in real time, the TO DEFENDANT NEXSTAR MEDIA television networks and producers of syndicated availability of inventory on competitors’ GROUP, INC. programs on a nationwide basis and broadcast in every market where the network or syndicated stations, which is often a key factor affecting Plaintiff United States of America (‘‘United program is aired. negotiations with buyers over spot States’’), pursuant to Section 2(b) of the 2 A DMA is a geographical unit designated by the advertising prices. The exchanges also Antitrust Procedures and Penalties Act, 15 A.C. Nielsen Company, a company that surveys helped stations to anticipate whether U.S.C. § 16(b)–(h) (‘‘APPA’’ or ‘‘Tunney television viewers and furnishes data to aid in competitors were likely to raise, maintain, or Act’’), files this Competitive Impact evaluating television audiences. There are 210 lower spot advertising prices. Understanding DMAs in the United States. DMAs are widely Statement relating to the proposed Final accepted by television stations, advertisers, and competitors’ pacing can help stations gauge Judgment against Defendant Nexstar Media advertising agencies as the standard geographic area competitors’ and advertisers’ negotiation Group, Inc. (‘‘Nexstar’’), submitted for entry to use in evaluating television audience size and strategies, inform their own pricing in this civil antitrust proceeding. demographic composition. strategies, and help them resist more

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effectively advertisers’ attempts to obtain when reasonably necessary for achieving the E. Enforcement of Final Judgment lower prices by playing stations off of one efficiencies of a legitimate collaboration The proposed Final Judgment contains another. Nexstar’s information exchanges among competitors, such as a lawful joint provisions designed to promote compliance 3 therefore distorted the normal price-setting venture. Paragraph V(C) confirms that the and make the enforcement of Division mechanism in the spot advertising market proposed Final Judgment does not prohibit consent decrees as effective as possible. and harmed the competitive process within petitioning conduct protected by the Noerr- Paragraph X(A) provides that the United the affected DMAs. Pennington doctrine. Paragraph V(D) permits States retains and reserves all rights to the exchange of competitively sensitive enforce the provisions of the proposed Final III. Explanation of the Proposed Final information through certain third-party Judgment Judgment, including its rights to seek an aggregation services under the conditions order of contempt from the Court. Nexstar The provisions of the proposed Final listed in that paragraph, including that the has agreed that in any civil contempt action, Judgment closely track the relief sought in aggregated data does not permit individual any motion to show cause, or any similar stations to identify, deduce, or estimate the the Amended Complaint and are intended to action brought by the United States regarding prices or pacing of their competitors. provide prompt, certain, and effective an alleged violation of the Final Judgment, remedies that will ensure that Nexstar and its C. Antitrust Compliance Obligations the United States may establish the violation employees and sales representatives will not and the appropriateness of any remedy by a impede competition by sharing competitively Under Section VI of the proposed Final Judgment, Nexstar must designate an preponderance of the evidence and that sensitive information, directly or indirectly, Nexstar has waived any argument that a including through Sales Rep Firms, with its Antitrust Compliance Officer who is responsible for implementing training and different standard of proof should apply. rival broadcast television stations. The This provision aligns the standard for requirements and prohibitions in the antitrust compliance programs and ensuring compliance with the Final Judgment. Among compliance obligations with the standard of proposed Final Judgment will terminate other duties, the Antitrust Compliance proof that applies to the underlying offense Nexstar’s illegal conduct, prevent recurrence Officer will be required to distribute copies that the compliance commitments address. of the same or similar conduct, ensure that of the Final Judgment and ensure that Paragraph X(B) provides additional Nexstar establishes an antitrust compliance training on the Final Judgment and the clarification regarding the interpretation of program, and provides the United States with antitrust laws is provided to Nexstar’s the provisions of the proposed Final cooperation in its ongoing investigation. The management and sales staff. Section VI also Judgment. The proposed Final Judgment was proposed Final Judgment protects requires Nexstar to establish an antitrust drafted to restore all competition the United competition and consumers by putting a stop whistleblower policy and remedy and report States alleged was harmed by Nexstar’s to the anticompetitive information sharing violations of the Final Judgment. Under challenged conduct. Nexstar agrees that it alleged in the Amended Complaint. Paragraph VI(D)(4), Nexstar, through its CEO, will abide by the proposed Final Judgment, A. Prohibited Conduct General Counsel, or Chief Legal Officer, must and that it may be held in contempt of this The proposed Final Judgment broadly certify annual compliance with the Final Court for failing to comply with any prohibits Nexstar from sharing competitively Judgment. This compliance program is provision of the proposed Final Judgment sensitive information with rival broadcast necessary in light of the extensive history of that is stated specifically and in reasonable television stations in the same DMA. communications among rival stations that detail, whether or not it is clear and Specifically, Section IV ensures that Nexstar facilitated Nexstar’s agreements. unambiguous on its face, and as interpreted will not, directly or indirectly, communicate D. Defendants’ Cooperation in light of this procompetitive purpose. competitively sensitive information, Paragraph X(C) further provides that, As outlined in Section VII, Nexstar must should the Court find in an enforcement including pricing or pricing strategies, cooperate fully and truthfully with the pacing, holding capacity, revenues, or market proceeding that Nexstar has violated the United States in any investigation or Final Judgment, the United States may apply shares, to broadcast television stations in the litigation relating to the sharing of same DMA or to those stations’ sales to the Court for a one-time extension of the competitively sensitive information in the Final Judgment, together with such other representatives and agents. broadcast television industry. The required The proposed Final Judgment provides that relief as may be appropriate. In addition, in cooperation may include providing sworn order to compensate American taxpayers for its provisions will apply to stations owned by testimony, employee interviews, and/or Nexstar even if Nexstar sells those stations to any costs associated with the investigation documents and data. and enforcement of violations of a proposed new buyers. In particular, Paragraph IV(C) Paragraph VII(C) provides that, subject to Final Judgment, Paragraph X(C) provides that provides that Nexstar may not sell any Nexstar’s truthful and continuing in any successful effort by the United States stations it owns as of October 1, 2018, unless cooperation as defined in Paragraphs VII(A) to enforce the Final Judgment against the buyer has executed an Acknowledgement and (B), the United States will not bring Nexstar, whether litigated or resolved before that each station will continue to be bound further civil actions or criminal charges litigation, Nexstar agrees to reimburse the by the terms of the proposed Final Judgment. against Nexstar for any agreement to share United States for any attorneys’ fees, experts’ The United States, in its discretion, may competitively sensitive information with any fees, or costs incurred in connection with any waive this requirement on a station-by- other station or Sales Rep Firm when the enforcement effort, including the station basis, or alternatively the buyer and agreement: (1) was entered into and the United States may agree to void the terminated before the date of the filing of the investigation of the potential violation. Acknowledgement after the sale has been Complaint and (2) does not constitute or Finally, Section XI of the proposed Final consummated. include an agreement to fix prices or divide Judgment provides that the Final Judgment markets. shall expire seven years from the date of its B. Conduct Not Prohibited entry, except that after five years from the Section V makes clear that the proposed date of its entry, the Final Judgment may be 3 Final Judgment does not prohibit Nexstar Paragraph V(B)(5) states that, for purposes of terminated upon notice by the United States from sharing or receiving competitively Paragraph V(B) only, certain types of Joint Sales Agreements, Local Marketing Agreements, and to the Court and Nexstar that the sensitive information in certain specified similar agreements qualify as a ‘‘legitimate continuation of the Final Judgments is no circumstances where the information sharing competitor collaboration’’ under Paragraph V(B)(b). longer necessary or in the public interest. appears unlikely to cause harm to Paragraph V(B)(5) was included in recognition of competition. Paragraph V(A) allows Nexstar the fact that some broadcasters have entered into a IV. Remedies Available to Potential Private to communicate competitively sensitive number of these agreements in various DMAs. The Litigants information to advertising customers or question of whether these agreements have any Section 4 of the Clayton Act, 15 U.S.C. prospective customers. Paragraph V(B) effect on competition was outside the scope of the § 15, provides that any person who has been allows for the communication of United States’ investigation in this matter. injured as a result of conduct prohibited by Accordingly, Paragraph V(B)(5) should not be read competitively sensitive information with as an admission that such agreements otherwise the antitrust laws may bring suit in federal other broadcasters (i) for purposes of comply with the antitrust laws, and the United court to recover three times the damages the evaluating or effectuating a transaction, such States takes no position on that question for person has suffered, as well as costs and as the purchase or sale of a station; or (ii) purposes of this proceeding. reasonable attorneys’ fees. Entry of the

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proposed Final Judgment will neither impair antitrust cases brought by the United States first instance, to the discretion of the nor assist the bringing of any private antitrust be subject to a 60-day comment period, after Attorney General. The court’s role in damage action. Under the provisions of which the court shall determine whether protecting the public interest is one of Section 5(a) of the Clayton Act, 15 U.S.C. entry of the proposed Final Judgment ‘‘is in insuring that the government has not § 16(a), the proposed Final Judgment has no the public interest.’’ 15 U.S.C. § 16(e)(1). In breached its duty to the public in consenting prima facie effect in any subsequent private making that determination, the court, in to the decree. The court is required to lawsuit that may be brought against Nexstar. accordance with the statute as amended in determine not whether a particular decree is 2004, is required to consider: the one that will best serve society, but V. Procedures Available for Modification of whether the settlement is ‘‘within the reaches the Proposed Final Judgments (A) the competitive impact of such judgment, including termination of alleged violations, of the public interest.’’ More elaborate The United States and Nexstar have provisions for enforcement and modification, requirements might undermine the stipulated that the Court may enter the duration of relief sought, anticipated effects effectiveness of antitrust enforcement by proposed Final Judgment after compliance of alternative remedies actually considered, consent decree. with the provisions of the APPA, provided whether its terms are ambiguous, and any Bechtel, 648 F.2d at 666 (emphasis added) that the United States has not withdrawn its other competitive considerations bearing (citations omitted).4 consent. The APPA conditions entry upon upon the adequacy of such judgment that the In determining whether a proposed the Court’s determination that the proposed court deems necessary to a determination of settlement is in the public interest, a district Final Judgment is in the public interest. whether the consent judgment is in the court ‘‘must accord deference to the The APPA provides a period of at least public interest; and government’s predictions about the efficacy sixty days preceding the effective date of the (B) the impact of entry of such judgment of its remedies, and may not require that the proposed Final Judgment within which any upon competition in the relevant market or remedies perfectly match the alleged person may submit to the United States markets, upon the public generally and violations.’’ SBC Commc’ns, 489 F. Supp. 2d written comments regarding the proposed individuals alleging specific injury from the at 17; see also U.S. Airways, 38 F. Supp. 3d Final Judgment. Any person who wishes to violations set forth in the complaint at 74–75 (noting that a court should not reject comment should do so within sixty days of the proposed remedies because it believes the date of publication of this Competitive including consideration of the public benefit, if any, to be derived from a determination of others are preferable and that room must be Impact Statement in the Federal Register, or made for the government to grant the last date of publication in a newspaper the issues at trial. 15 U.S.C. § 16(e)(1)(A) & (B). In considering concessions in the negotiation process for of the summary of this Competitive Impact settlements); Microsoft, 56 F.3d at 1461 Statement, whichever is later. All comments these statutory factors, the court’s inquiry is necessarily a limited one as the government (noting the need for courts to be ‘‘deferential received during this period will be to the government’s predictions as to the considered by the United States Department is entitled to ‘‘broad discretion to settle with the defendant within the reaches of the effect of the proposed remedies’’); United of Justice, which remains free to withdraw its States v. Archer-Daniels-Midland Co., 272 F. consent to the proposed Final Judgment at public interest.’’ United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); Supp. 2d 1, 6 (D.D.C. 2003) (noting that the any time before the Court’s entry of court should grant ‘‘due respect to the judgment. The comments and the response of see generally United States v. SBC government’s prediction as to the effect of the United States will be filed with the Court. Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. proposed remedies, its perception of the In addition, comments will be posted on the 2007) (assessing public interest standard market structure, and its views of the nature U.S. Department of Justice, Antitrust under the Tunney Act); United States v. U.S. of the case’’). The ultimate question is Division’s website and, under certain Airways Group, Inc., 38 F. Supp. 3d 69, 75 whether ‘‘the remedies [obtained in the circumstances, published in the Federal (D.D.C. 2014) (explaining that the ‘‘court’s decree are] so inconsonant with the Register. inquiry is limited’’ in Tunney Act allegations charged as to fall outside of the Written comments should be submitted to: settlements); United States v. InBev N.V./ S.A., No. 08–1965 (JR), 2009 U.S. Dist. LEXIS ‘reaches of the public interest.’ ’’ Microsoft, Owen M. Kendler, Chief, Media, 84787, at *3 (D.D.C. Aug. 11, 2009) (noting 56 F.3d at 1461 (quoting United States v. Entertainment, & Professional Services that the court’s review of a consent judgment Western Elec. Co., 900 F.2d 283, 309 (D.C. Section, Antitrust Division, United States is limited and only inquires ‘‘into whether Cir. 1990)). To meet this standard, the United Department of Justice, 450 5th Street NW, States ‘‘need only provide a factual basis for Suite 4000, Washington, DC 20530 the government’s determination that the proposed remedies will cure the antitrust concluding that the settlements are Under Section IX, the proposed Final violations alleged in the complaint was reasonably adequate remedies for the alleged Judgment provides that the Court retains reasonable, and whether the mechanism to harms.’’ SBC Commc’ns, 489 F. Supp. 2d at jurisdiction over this action, and the parties enforce the final judgment are clear and 17. may apply to the Court for any order manageable’’). Moreover, the court’s role under the APPA necessary or appropriate for the modification, As the United States Court of Appeals for is limited to reviewing the remedy in interpretation, or enforcement of the Final the District of Columbia Circuit has held, relationship to the violations that the United Judgment. under the APPA a court considers, among States has alleged in its complaint, and does VI. Alternatives to the Proposed Final other things, the relationship between the not authorize the court to ‘‘construct [its] Judgment remedy secured and the specific allegations own hypothetical case and then evaluate the in the government’s complaint, whether the decree against that case.’’ Microsoft, 56 F.3d The United States considered, as an decree is sufficiently clear, whether its at 1459; see also U.S. Airways, 38 F. Supp. alternative to the proposed Final Judgment, enforcement mechanisms are sufficient, and 3d at 75 (noting that the court must simply seeking injunctive relief against Nexstar’s whether the decree may positively harm determine whether there is a factual conduct through a full trial on the merits. third parties. See Microsoft, 56 F.3d at 1458– foundation for the government’s decisions The United States is satisfied, however, that 62. With respect to the adequacy of the relief such that its conclusions regarding the the relief sought in the proposed Final secured by the decree, a court may not proposed settlements are reasonable); InBev, Judgment will terminate the anticompetitive ‘‘engage in an unrestricted evaluation of what 2009 U.S. Dist. LEXIS 84787, at *20 (‘‘the conduct alleged in the Complaint and more relief would best serve the public.’’ United ‘public interest’ is not to be measured by quickly restore the benefits of competition to States v. BNS, Inc., 858 F.2d 456, 462 (9th comparing the violations alleged in the advertisers. Thus, the proposed Final complaint against those the court believes Judgment would achieve the relief the United Cir. 1988) (quoting United States v. Bechtel States might have obtained through litigation, Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 4 but avoids the time, expense, and uncertainty also Microsoft, 56 F.3d at 1460–62; United See also BNS, 858 F.2d at 464 (holding that the court’s ‘‘ultimate authority under the [APPA] is of a full trial on the merits. States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS limited to approving or disapproving the consent VII. Standard of Review Under the APPA for 84787, at *3. Instead: decree’’); United States v. Gillette Co., 406 F. Supp. the Proposed Final Judgments 713, 716 (D. Mass. 1975) (noting that, in this way, [t]he balancing of competing social and the court is constrained to ‘‘look at the overall The Clayton Act, as amended by the APPA, political interests affected by a proposed picture not hypercritically, nor with a microscope, requires that proposed consent judgments in antitrust consent decree must be left, in the but with an artist’s reducing glass’’).

VerDate Sep<11>2014 21:23 Jan 31, 2019 Jkt 247001 PO 00000 Frm 00169 Fmt 4703 Sfmt 4703 E:\FR\FM\01FEN1.SGM 01FEN1 1216 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices

could have, or even should have, been U.S. Department of Justice, Antitrust Washington, DC 20530 (telephone: 202– alleged’’). Because the ‘‘court’s authority to Division, Media, Entertainment, and 305–8376). review the decree depends entirely on the Professional Services Section, 450 Fifth government’s exercising its prosecutorial Street NW, Suite 4000, Washington, DC Patricia A. Brink, discretion by bringing a case in the first 20530, Phone: 202–598–2698, Facsimile: Director of Civil Enforcement. place,’’ it follows that ‘‘the court is only 202–514–7308, Email: [email protected]. United States District Court authorized to review the decree itself,’’ and * Attorney of Record not to ‘‘effectively redraft the complaint’’ to for the District of Columbia inquire into other matters that the United [FR Doc. 2019–00555 Filed 1–31–19; 8:45 am] United States of America, 450 Fifth Street States did not pursue. Microsoft, 56 F.3d at BILLING CODE 4410–11–P NW, Washington, DC 20530. Plaintiff, v. 1459–60. GRAY TELEVISION, INC. 4370 Peachtree In its 2004 amendments,5 Congress made Road NE Atlanta, Georgia 30319; and clear its intent to preserve the practical DEPARTMENT OF JUSTICE RAYCOM MEDIA, INC. RSA Tower 20th benefits of utilizing consent decrees in Floor 201 Monroe Street Montgomery, antitrust enforcement, adding the Antitrust Division Alabama 36104 Defendants. unambiguous instruction that ‘‘[n]othing in Case No. 1:18–cv–2951 this section shall be construed to require the United States v. Gray Television, Inc., Judge Christopher R. Cooper court to conduct an evidentiary hearing or to et al.; Proposed Final Judgment and require the court to permit anyone to Competitive Impact Statement COMPLAINT intervene.’’ 15 U.S.C. § 16(e)(2); see also U.S. The United States of America, acting under Airways, 38 F. Supp. 3d at 76 (indicating that Notice is hereby given pursuant to the the direction of the Acting Attorney General a court is not required to hold an evidentiary Antitrust Procedures and Penalties Act, of the United States, brings this civil action hearing or to permit intervenors as part of its 15 U.S.C. 16(b)–(h), that a proposed against Gray Television, Inc. (‘‘Gray’’) and review under the Tunney Act). This language Final Judgment, Stipulation, and Raycom Media, Inc. (‘‘Raycom’’) to enjoin Gray’s proposed merger with Raycom. The explicitly wrote into the statute what Competitive Impact Statement have Congress intended when it first enacted the United States complains and alleges as Tunney Act in 1974. As Senator Tunney been filed with the United States follows: District Court for the District of explained: ‘‘[t]he court is nowhere compelled I. NATURE OF THE ACTION to go to trial or to engage in extended Columbia in United States of America v. proceedings which might have the effect of Gray Television, Inc., et al., Civil Action 1. Pursuant to an Agreement and Plan of vitiating the benefits of prompt and less No. 1:18–cv–2951 (CRC). On December Merger dated June 23, 2018, Gray plans to costly settlement through the consent decree 14, 2018, the United States filed a acquire Raycom through a merger transaction process.’’ 119 Cong. Rec. 24,598 (1973) Complaint alleging that the proposed for approximately $3.6 billion in cash and (statement of Sen. Tunney). Rather, the stock. merger between Gray Television, Inc., 2. The proposed merger would combine procedure for the public interest and Raycom Media, Inc., would violate determination is left to the discretion of the two of the largest independent local court, with the recognition that the court’s Section 7 of the Clayton Act, 15 U.S.C. television station owners in the United States ‘‘scope of review remains sharply proscribed 18. The proposed Final Judgment, filed and would combine many popular local by precedent and the nature of Tunney Act at the same time as the Complaint, television stations that compete against each proceedings.’’ SBC Commc’ns, 489 F. Supp. requires Gray and Raycom to divest other today in several markets, likely 2d at 11. A court can make its public interest certain broadcast television stations in resulting in significant harm to competition. determination based on the competitive Waco-Temple-Bryan, Texas; 3. In nine Designated Market Areas impact statement and response to public Tallahassee, Florida-Thomasville, (‘‘DMAs’’), Gray and Raycom each own at comments alone. U.S. Airways, 38 F. Supp. least one broadcast television station that is Georgia; Toledo, Ohio; Odessa-Midland, an affiliate of one of the ‘‘Big 4’’ television 3d at 76. See also United States v. Enova Texas; Knoxville, Tennessee; Augusta, Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) networks: NBC, CBS, ABC, or FOX. (noting that the ‘‘Tunney Act expressly Georgia; Panama City, Florida; Dothan, 4. These nine ‘‘Overlap DMAs’’ are: (i) allows the court to make its public interest Alabama; and Albany, Georgia. Waco-Temple-Bryan, Texas; (ii) Tallahassee, determination on the basis of the competitive Copies of the Complaint, proposed Florida-Thomasville, Georgia; (iii) Toledo, impact statement and response to comments Final Judgment, and Competitive Impact Ohio; (iv) Odessa-Midland, Texas; (v) alone’’); S. Rep. No. 93–298 93d Cong., 1st Statement are available for inspection Knoxville, Tennessee; (vi) Augusta, Georgia; Sess., at 6 (1973) (‘‘Where the public interest (vii) Panama City, Florida; (viii) Dothan, on the Antitrust Division’s website at Alabama; and (ix) Albany, Georgia. can be meaningfully evaluated simply on the https://www.justice.gov/atr and at the basis of briefs and oral arguments, that is the 5. In each Overlap DMA, the proposed approach that should be utilized.’’). Office of the Clerk of the United States merger would eliminate competition between District Court for the District of Gray and Raycom in (i) the licensing of Big VIII. Determinative Documents Columbia. Copies of these materials may 4 network content (‘‘retransmission consent’’) There are no determinative materials or be obtained from the Antitrust Division to cable, satellite, and fiber optic television documents within the meaning of the APPA upon request and payment of the providers (referred to collectively as that were considered by the United States in copying fee set by Department of Justice multichannel video programming formulating the proposed Final Judgment. regulations. distributors, or ‘‘MVPDs’’), for distribution to Dated: December 13, 2018 their subscribers; and (ii) the sale of spot Public comment is invited within advertising to advertisers interested in Respectfully submitted, sixty (60) days of the date of this notice. reaching viewers in the DMA. lllllllllllllllllllll Such comments, including the name of 6. By eliminating a major competitor, the Lee F. Berger * (D.C. Bar #482435), the submitter, and responses thereto, merger would likely give Gray the power to Trial Attorney. will be posted on the Antitrust charge MVPDs higher fees for its Division’s website, filed with the Court, programming—fees that those companies 5 The 2004 amendments substituted ‘‘shall’’ for would likely pass on, in large measure, to ‘‘may’’ in directing relevant factors for a court to and, under certain circumstances, published in the Federal Register. their subscribers. Additionally, the merger consider and amended the list of factors to focus on would likely allow Gray to charge local competitive considerations and to address Comments should be directed to Owen businesses and other advertisers higher potentially ambiguous judgment terms. Compare 15 Kendler, Chief, Media, Entertainment, U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) prices to reach audiences in the Overlap (2006); see also SBC Commc’ns, 489 F. Supp. 2d at and Professional Services Section, DMAs. 11 (concluding that the 2004 amendments ‘‘effected Antitrust Division, Department of 7. As a result, the proposed merger of Gray minimal changes’’ to Tunney Act review). Justice, 450 Fifth Street NW, Suite 4000, and Raycom likely would substantially

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