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would affect the public health and available for public inspection at the Columbia. Copies of these materials may welfare in the United States, Office of the Secretary and on EDIS. be obtained from the Antitrust Division competitive conditions in the United The authority for the Commission’s upon request and payment of the States economy, the production of like determination is contained in section copying fee set by Department of Justice or directly competitive articles in the 337 of the Tariff Act of 1930, as regulations. United States, or United States amended (19 U.S.C. 1337), and in part Public comment is invited within 60 consumers. 210 of the Commission’s Rules of days of the date of this notice. Such In particular, the Commission is Practice and Procedure (19 CFR part comments, including the name of the interested in comments that: 210). submitter, and responses thereto, will be (i) Explain how the articles By order of the Commission. posted on the Antitrust Division’s potentially subject to the recommended Issued: August 12, 2019. website, filed with the Court, and, under orders are used in the United States; certain circumstances, published in the Lisa Barton, (ii) Identify any public health, safety, Federal Register. Comments should be Secretary to the Commission. or welfare concerns in the United States directed to Owen Kendler, Chief, Media relating to the recommended orders; [FR Doc. 2019–17562 Filed 8–14–19; 8:45 am] Entertainment and Professional Services (iii) Identify like or directly BILLING CODE 7020–02–P Section, Antitrust Division, Department competitive articles that complainants, of Justice, 450 Fifth Street NW, Suite their licensees, or third parties make in 4000, Washington, DC 20530 the United States which could replace DEPARTMENT OF JUSTICE (telephone: 202–305–8376). the subject articles if they were to be Amy R. Fitzpatrick, excluded; Antitrust Division Counsel to the Director of Civil Enforcement. (iv) Indicate whether complainants, United States, et al. v. Nexstar Media UNITED STATES DISTRICT COURT complainants’ licensees, and/or third Group, Inc., et al.: Proposed Final FOR THE DISTRICT OF COLUMBIA party suppliers have the capacity to Judgment and Competitive Impact replace the volume of articles Statement UNITED STATES OF AMERICA, 450 Fifth potentially subject to the recommended Street NW, Washington, DC 20530; STATE exclusion order and/or a cease and Notice is hereby given pursuant to the OF ILLINOIS, 100 West Randolph Street, desist order within a commercially Antitrust Procedures and Penalties Act, Chicago, IL 60601; COMMONWEALTH OF reasonable time; and 15 U.S.C. 16(b)–(h), that a proposed PENNSYLVANIA, 14th Floor, Strawberry (v) Explain how the LEO would Final Judgment, Stipulation, and Square, Harrisburg, PA 17120; and, impact consumers in the United States. Competitive Impact Statement have COMMONWEALTH OF VIRGINIA, 202 Written submissions from the public been filed with the United States North 9th Street, Richmond, VA 23219, must be filed no later than by close of Plaintiffs, v. NEXSTAR MEDIA GROUP, District Court for the District of INC., 545 E. John Carpenter Freeway, Suite business on Thursday, September 12, Columbia in United States of America, 700, Irving, TX 75062; and TRIBUNE MEDIA 2019. et al. v. Nexstar Media Group, Inc., et COMPANY, 515 North State Street, Chicago, Persons filing written submissions al., Civil Action No. 1:19–cv–2295. On IL 60654, Defendants. must file the original document July 31, 2019, the United States, along Civil Action No. 1:19-cv-2295 (DLF) electronically on or before the deadlines with the offices of three states Attorneys stated above and submit 8 true paper General, filed a Complaint alleging that COMPLAINT copies to the Office of the Secretary by Nexstar Media Group, Inc.’s (‘‘Nexstar’’) The United States of America, acting noon the next day pursuant to section proposed acquisition of Tribune Media under the direction of the Attorney 210.4(f) of the Commission’s Rules of Company (‘‘Tribune’’) would violate General of the United States, and the Practice and Procedure (19 CFR Section 7 of the Clayton Act, 15 U.S.C. State of Illinois and the 210.4(f)). Submissions should refer to 18. The proposed Final Judgment, filed Commonwealths of Pennsylvania and the investigation number (‘‘Inv. No. at the same time as the Complaint, Virginia (‘‘Plaintiff States’’), bring this 337–TA–1110’’) in a prominent place on requires Nexstar to divest certain civil action against Nexstar Media the cover page and/or the first page. (See broadcast television stations in Group, Inc. (‘‘Nexstar’’) and Tribune Handbook for Electronic Filing Davenport, Iowa-Rock Island-Moline, Media Company (‘‘Tribune’’) to enjoin Procedures, https://www.usitc.gov/ Illinois; Des Moines-Ames, Iowa; Ft. Nexstar’s proposed merger with documents/handbook_on_filing_ Smith-Fayetteville-Springdale-Rogers, Tribune. The Plaintiffs allege as follows: procedures.pdf.). Persons with Arkansas; Grand Rapids-Kalamazoo- questions regarding filing should Battle Creek, Michigan; Harrisburg- I. NATURE OF THE ACTION contact the Secretary (202–205–2000). Lancaster-Lebanon-York, Pennsylvania; 1. Pursuant to an Agreement and Plan Any person desiring to submit a Hartford-New Haven, Connecticut; of Merger dated November 30, 2018, document to the Commission in Huntsville-Decatur-Florence, Alabama; Nexstar plans to acquire Tribune for confidence must request confidential Indianapolis, Indiana; Memphis, approximately $6.4 billion. treatment unless the information has Tennessee; Norfolk-Portsmouth- 2. The proposed merger would already been granted such treatment Newport News, Virginia; Richmond- combine two of the largest independent during the proceedings. All such Petersburg, Virginia; Salt Lake City, local television station owners in the requests should be directed to the Utah; and Wilkes-Barre-Scranton, United States and would combine many Secretary of the Commission and must Pennsylvania. popular local television stations that include a full statement of the reasons Copies of the Complaint, proposed compete against each other in several why the Commission should grant such Final Judgment, and Competitive Impact markets, likely resulting in significant treatment. See 19 CFR part 210.6. Statement are available for inspection harm to competition. Documents for which confidential on the Antitrust Division’s website at 3. In twelve Designated Market Areas treatment by the Commission is sought http://www.justice.gov/atr and at the (‘‘DMAs’’), Nexstar and Tribune each will be treated accordingly. All non- Office of the Clerk of the United States own at least one broadcast television confidential written submissions will be District Court for the District of station that is an affiliate of one of the

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‘‘Big 4’’ television networks: NBC, CBS, II. THE DEFENDANTS permitted to distribute a station’s ABC, or FOX. These twelve DMAs, 8. Nexstar is a Delaware corporation content to its subscribers are set forth in collectively referred to in this with its headquarters in Irving, Texas. a retransmission agreement. A Complaint as the ‘‘Big 4 Overlap Nexstar owns 171 television stations in retransmission agreement is negotiated DMAs,’’ are: (i) Davenport, Iowa-Rock 100 DMAs, of which 136 stations are Big directly between a broadcast station Island-Moline, Illinois; (ii) Des Moines- 4 affiliates. In 2018, Nexstar reported group, such as Nexstar or Tribune, and Ames, Iowa; (iii) Ft. Smith-Fayetteville- revenues of $2.8 billion. a given MVPD, and this agreement Springdale-Rogers, Arkansas; (iv) Grand 9. Tribune is a Delaware corporation typically covers all of the station group’s Rapids-Kalamazoo-Battle Creek, with its headquarters in Chicago, stations located in the MVPD’s service Michigan; (v) Harrisburg-Lancaster- Illinois. Tribune owns 44 television area, or ‘‘footprint.’’ Lebanon-York, Pennsylvania; (vi) stations in 33 DMAs, of which 27 16. Each broadcast station group Hartford-New Haven, Connecticut; (vii) stations are Big 4 affiliates. In 2018, typically renegotiates retransmission Huntsville-Decatur-Florence, Alabama; Tribune earned revenues of more than agreements with the MVPDs every few (viii) Memphis, Tennessee; (ix) Norfolk- $2.0 billion. years. If an MVPD and a broadcast Portsmouth-Newport News, Virginia; (x) station group cannot agree on a Richmond-Petersburg, Virginia; (xi) Salt III. JURISDICTION AND VENUE retransmission consent fee at the Lake City, Utah; and (xii) Wilkes-Barre- 10. The United States brings this expiration of a retransmission Scranton, Pennsylvania. action under Section 15 of the Clayton agreement, the result may be a 4. Additionally, in the Indianapolis, Act, 15 U.S.C. § 25, as amended, to ‘‘blackout’’ of the broadcast group’s Indiana DMA (‘‘Indianapolis DMA’’), prevent and restrain Defendants from stations from the particular MVPD—i.e., Tribune owns two Big 4 stations and violating Section 7 of the Clayton Act, an open-ended period during which the Nexstar owns the CW and 15 U.S.C. § 18. MVPD may not distribute those stations MyNetworkTV affiliates. Nexstar’s CW 11. The Plaintiff States bring this to its subscribers until a new contract is station has a higher than usual market action under Section 16 of the Clayton successfully negotiated. share for a CW affiliate because of its Act, 15 U.S.C. § 26, to prevent and B. Relevant Markets strong local news programming; until restrain Defendants from violating 2014, the station had been the CBS Section 7 of the Clayton Act, 15 U.S.C. 1. Product Market affiliate in the Indianapolis DMA. The § 18. The Plaintiff States, by and 17. Big 4 broadcast content has Big 4 Overlap DMAs and the through their respective Attorneys special appeal to television viewers in Indianapolis DMA together are referred General, bring this action as parens comparison to the content that is to in this Complaint as ‘‘Overlap patriae on behalf of and to protect the available through other broadcast DMAs.’’ health and welfare of their citizens and stations and cable channels. Big 4 5. In each Big 4 Overlap DMA, the the general economy in each of their stations usually are the highest ranked proposed merger would eliminate states. in terms of audience share and ratings competition between Nexstar and 12. The Court has subject matter in each DMA, largely because of unique Tribune in the licensing of Big 4 jurisdiction over this action pursuant to offerings such as local news, sports, and network content (‘‘retransmission Section 15 of the Clayton Act, 15 U.S.C. highly ranked primetime programs. consent’’) to cable, satellite, fiber optic § 25, and 28 U.S.C. §§ 1331, 1337(a), Viewers typically consider the Big 4 television, and over-the-top providers and 1345. stations to be close substitutes for one (referred to collectively as multichannel 13. Defendants license Big 4 another. video programming distributors or television retransmission consent to 18. Because of Big 4 stations’ popular ‘‘MVPDs’’), for distribution to their MVPDs, and sell broadcast television national content and valued local subscribers. Additionally, in each spot advertising to businesses (either coverage, MVPDs regard Big 4 Overlap DMA, the proposed merger directly or through advertising programming as highly desirable for would substantially lessen competition agencies), in the flow of interstate inclusion in the packages they offer in the sale of broadcast television spot commerce, and such activities subscribers. advertising to advertisers interested in substantially affect interstate commerce. 19. Non-Big 4 broadcast stations are reaching viewers in the DMA. 14. Nexstar and Tribune have typically not close substitutes for 6. By eliminating a major competitor, consented to venue and personal viewers of Big 4 stations. Stations that the merger would likely give Nexstar the jurisdiction in this judicial district. Both are affiliates of networks other than the power to charge MVPDs higher fees for companies transact business in this Big 4, such as the CW Network, its programming—fees that those district. Venue is therefore proper in MyNetworkTV, or Telemundo, typically companies would likely pass on, in this district under Section 12 of the feature niche programming without large measure, to their subscribers. Clayton Act, 15 U.S.C. § 22, and under local news or sports—or, in the case of Additionally, the merger would likely 28 U.S.C. § 1391(b)(1) and (c). Telemundo, aimed at a Spanish- allow Nexstar to charge local businesses IV. BIG 4 TELEVISION speaking audience. Stations that are and other advertisers higher prices to RETRANSMISSION CONSENT unaffiliated with any network are reach audiences in the Overlap DMAs. MARKETS similarly unlikely to carry programming 7. As a result, the proposed merger of with broad popular appeal. Nexstar and Tribune likely would A. Background 20. If an MVPD suffers a blackout of substantially lessen competition in the 15. MVPDs, such as Comcast, a Big 4 station in a given DMA, many markets for licensing Big 4 television DirecTV, and Charter, typically pay the of the MVPD’s subscribers in that DMA retransmission consent in each of the owner of each local Big 4 broadcast are likely to turn to other Big 4 stations Big 4 Overlap DMAs, and in the markets station in a given DMA a per-subscriber in the DMA to watch similar content, for selling broadcast television spot fee for the right to retransmit the such as sports, primetime shows, and advertising in each of the Overlap station’s content to the MVPD’s local news and weather. This DMAs, in violation of Section 7 of the subscribers. The per-subscriber fee and willingness of viewers to switch Clayton Act, 15 U.S.C. § 18. other terms under which an MVPD is between competing Big 4 broadcast

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stations limits an MVPD’s expected discipline an increase in the fees cannot switch to Big 4 programming in losses in the case of a blackout, and thus charged for Big 4 television another DMA in the face of a blackout. limits a broadcaster’s ability to extract retransmission consent. Accordingly, a Therefore, substitution to stations higher fees from that MVPD—since an hypothetical monopolist of Big 4 outside the DMA cannot discipline an MVPD’s willingness to pay higher television stations would likely increase increase in the fees charged for retransmission consent fees for content the retransmission consent fees it retransmission consent for broadcast rises or falls with the harm it would charges to MVPDs for those stations by stations in the DMA. Each DMA thus suffer if that content were lost. at least a small but significant amount. constitutes a relevant geographic market 21. Due to the limited programming 24. The licensing of Big 4 television for the licensing of Big 4 television typically offered by non-Big 4 stations, retransmission consent therefore retransmission consent within the viewers are much less likely to switch constitutes a relevant product market meaning of Section 7 of the Clayton Act, to a non-Big 4 station than to switch to and line of commerce under Section 7 15 U.S.C. § 18. other Big 4 stations in the event of a of the Clayton Act, 15 U.S.C. § 18. blackout of a Big 4 station. Accordingly, C. Likely Anticompetitive Effects competition from non-Big 4 stations 2. Geographic Markets 27. The more concentrated a market does not typically impose a significant 25. A DMA is a geographic unit for would be as a result of a proposed competitive constraint on the which A.C. Nielsen Company—a firm merger, the more likely it is that the retransmission consent fees charged by that surveys television viewers— proposed merger would substantially the owners of Big 4 stations. furnishes broadcast television stations, 22. For the same reasons, MVPDs, cable and satellite television lessen competition. Concentration can be measured by the widely used subscribers—and therefore MVPDs— networks, advertisers, and advertising 1 generally do not view cable network agencies in a particular area with data Herfindahl-Hirschman Index (‘‘HHI’’). programming as a close substitute for to aid in evaluating audience size and Under the Horizontal Merger Guidelines Big 4 network content. This is primarily composition. DMAs are widely accepted issued by the Department of Justice and because cable channels offer different by industry participants as the standard the Federal Trade Commission, mergers content. For example, cable channels geographic areas to use in evaluating that result in highly concentrated generally do not offer local news, which television audience size and markets (i.e., with an HHI over 2,500) provides a valuable connection to the demographic composition. The Federal and that increase the HHI by more than local community that is important to Communications Commission (‘‘FCC’’) 200 points are presumed likely to viewers of Big 4 stations. also uses DMAs as geographic units enhance market power. 23. Because viewers do not regard with respect to its MVPD regulations. 28. The chart below summarizes non-Big 4 broadcast stations or cable 26. In the event of a blackout of a Big Defendants’ approximate Big 4 networks as close substitutes for the 4 network station, FCC rules generally television retransmission consent programming they receive from Big 4 prohibit an MVPD from importing the market shares, based on revenue, and stations, these other sources of same network’s content from another the effect of the transaction on the HHI programming are not sufficient to DMA. Thus, Big 4 viewers in one DMA in each Big 4 Overlap DMA.2

Nexstar share Tribune share Merged share Pre-merger Post-merger Big 4 overlap DMA (%) (%) (%) HHI HHI HHI increase

Wilkes Barre, PA ...... 54.0 24.7 78.7 3981 6645 2664 Ft. Smith, AR ...... 63.4 15.0 78.4 4708 6613 1906 Norfolk, VA ...... 56.0 21.1 77.1 4104 6465 2361 Grand Rapids, MI ...... 43.4 16.3 59.7 2974 4391 1417 Hartford, CT ...... 33.5 25.4 58.9 2636 4338 1702 Memphis, TN ...... 38.4 17.6 56.1 2762 4118 1356 Davenport, IA ...... 36.8 14.9 51.6 2744 3838 1094 Des Moines, IA ...... 34.5 13.9 48.4 2798 3756 958 Huntsville, AL ...... 32.5 16.6 49.1 2630 3710 1080 Salt Lake City, UT ...... 32.1 15.5 47.5 2691 3683 992 Harrisburg, PA ...... 25.3 22.1 47.4 2553 3670 1117 Richmond, VA ...... 28.0 16.9 44.9 2672 3617 945

29. As indicated by the preceding 30. The proposed merger would 31. Retransmission consent fees chart, the post-merger HHI in each Big enable Nexstar to black out more Big 4 generally are passed through to an 4 Overlap DMA is well above 2,500, and stations simultaneously in each of the MVPD’s subscribers in the form of the HHI increase in each Big 4 Overlap Big 4 Overlap DMAs than either Nexstar higher subscription fees or as a line item DMA far exceeds the 200-point or Tribune could black out on their bills. threshold. Thus, the proposed merger independently today, likely leading to 32. For these reasons, the proposed presumptively violates Section 7 of the increased retransmission consent fees merger of Nexstar and Tribune likely Clayton Act in each Big 4 Overlap DMA. charged to such MVPDs. would substantially lessen competition

1 The HHI is calculated by squaring the market account the relative size distribution of the firms in the market decreases and as the disparity in size share of each firm competing in the market and a market. It approaches zero when a market is between those firms increases. then summing the resulting numbers. For example, occupied by a large number of firms of relatively 2 In this chart and the one below, sums that do for a market consisting of four firms with shares of equal size, and reaches its maximum of 10,000 not agree precisely reflect rounding. 30, 30, 20, and 20 percent, the HHI is 2,600 (302 points when a market is controlled by a single firm. + 302 + 202 + 202 = 2,600). The HHI takes into The HHI increases both as the number of firms in

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in the licensing of Big 4 television complements to broadcast television MVPDs in a DMA, approaching but not retransmission consent in each of the advertising, but not close substitutes. matching broadcast stations’ reach. But Big 4 Overlap DMAs, in violation of For example, ads associated with online in other, especially smaller DMAs, the Section 7 of the Clayton Act, 15 U.S.C. search results target individual interconnect only contains a subset of § 18. consumers or respond to specific MVPDs, which reduces the reach of the keyword searches, whereas broadcast interconnect’s advertisements. In V. BROADCAST TELEVISION SPOT television advertising reaches a broad contrast, broadcast television spot ADVERTISING MARKETS audience throughout a DMA. advertising reaches all households that A. Background 38. Technological developments may subscribe to an MVPD and, through an 33. Broadcast television stations, bring various advertising categories into over-the-air signal, most households including both Big 4 broadcast stations closer competition with each other. For with a television that do not. and non-Big 4 stations in the Overlap example, broadcasters and cable 42. Finally, MVPDs’ inventory of DMAs, sell advertising ‘‘spots’’ during networks are developing technology to cable television spot advertising is breaks in their programming. make their spot advertising addressable, limited—typically to two minutes per meaning that broadcasters could deliver hour—contrasting sharply with Advertisers purchase spots from a targeted advertising in live broadcast broadcast stations’ much larger number broadcast station to communicate with and on-demand formats to smart of minutes per hour. The inventory of viewers within the DMA in which the televisions or streaming devices. For DMA-wide cable television spot broadcast television station is located. certain advertisers, these technological advertising is substantially further Broadcast television spot advertising is changes may make other categories of reduced by the large portion of those distinguished from ‘‘network’’ advertising closer substitutes for spots allocated to local zone advertising, advertising, which consists of advertising on broadcast television in in which an MVPD sells spots by advertising time slots sold on the future. However, at this time, for geographic zones within a DMA, nationwide broadcast networks by those many broadcast television spot allowing advertisers to target smaller networks, and not by local broadcast advertising advertisers, these projected geographic areas. Due to the limited stations or their representatives. developments are insufficient to inventories and lower ratings associated 34. Nexstar and Tribune compete with mitigate the effects of the merger in the with cable television spot programming, one another to sell broadcast television Overlap DMAs. cable television spot advertisements spot advertising in each of the Overlap cannot offer a sufficient volume of DMAs. ii. Cable Television Spot Advertising ratings points, or broad enough B. Relevant Markets 39. MVPDs sell spot advertising to be household penetration, to provide a shown during breaks in cable network viable alternative to broadcast television 1. Product Market programming. For viewers, these spot advertising at this time. Because of 35. Broadcast television spot advertisements are similar to broadcast these limitations, MVPDs and advertising, including spot advertising ads. That, however, does not mean that interconnects would be unable to on both Big 4 and non-Big 4 broadcast cable television spot advertising should expand output or increase sales stations, constitutes a relevant product be included in the product market. For sufficiently to defeat a small but market and line of commerce under the following reasons, cable television significant increase in the prices Section 7 of the Clayton Act, 15 U.S.C. spot advertising is at this time a charged for broadcast television spot § 18. Advertisers’ inability or relatively ineffective substitute for advertising in a given DMA. unwillingness to substitute to other broadcast television spot advertising for types of advertising in response to a most advertisers. iii. Digital Advertising price increase in broadcast television 40. First, broadcast television spot 43. Digital advertising is not a spot advertising supports this relevant advertising is a more efficient option sufficiently close substitute for market definition. than cable television spot advertising for broadcast television spot advertising. many advertisers. Because broadcast Some digital advertising, such as static i. Overview of Local Broadcast television offers highly rated and floating banner advertisements, Television Spot Advertising programming with broad appeal, each static images, text advertisements, 36. Typically, an advertiser purchases broadcast television advertising spot wallpaper advertisements, pop-up broadcast television advertising spots as typically offers the opportunity to reach advertisements, flash advertisements, one component of an advertising more viewers (more ‘‘ratings points’’) and paid search results, lacks the strategy that may also include cable than a single spot on a cable channel. combination of sight, sound, and motion spots, newspaper advertisements, By contrast, MVPDs offer dozens of that makes television spot advertising billboards, radio spots, digital cable channels with specialized particularly impactful and memorable advertisements, email advertisements, programs that appeal to niche and therefore effective for advertisers. and direct mail. audiences. This fragmentation allows Digital video advertisements, on the 37. Different components of an advertisers to target narrower other hand, do allow for a combination advertising strategy generally target demographic subsets by buying cable of sight, sound, and motion, and on this different audiences and serve distinct spots on particular channels, but it does basis are more comparable to broadcast purposes. Advertisers that advertise on not meet the needs of advertisers who television spot advertising than other broadcast stations do so because the want to reach a large percentage of a types of digital advertising, but are still stations offer popular programming DMA’s population. not close substitutes for broadcast such as local news, sports, and 41. Second, households that have television spot advertising for the primetime and syndicated shows that access to cable networks are divided reasons stated below. are especially attractive to a broad among multiple MVPDs within a DMA. 44. First, digital advertisements demographic base and a large audience In some DMAs, MVPDs sell some spot typically reach a different audience than of viewers. Other categories of advertising through consortia called broadcast television spot advertising. advertising may offer different ‘‘interconnects.’’ Sometimes these Whereas advertisers use broadcast characteristics, making them potential interconnects include all of the largest television spots to reach a large

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percentage of households in a DMA, to other forms of advertising—such as not against MVPDs in that DMA or advertisers use digital advertising to cable, digital, print, radio, or billboard digital advertisers. When reporting to reach a variety of different audiences. advertising—in sufficiently large their station managers and corporate While a small portion of advertisers numbers to make the price increase headquarters, broadcast station sales purchase DMA-wide advertisements on unprofitable. executives regularly report on their digital platforms, digital advertisements v. Broadcasters’ Negotiations with performance vis-a`-vis other broadcast usually are targeted either very broadly, Advertisers and Internal Analyses stations in the DMA; they rarely report such as nationwide or regional, or to a on their performance against cable or smaller geographic target, such as a city 48. While cable spot or digital digital platforms. When looking for new or a zip code, or to narrow demographic advertising may constrain broadcast business, broadcast stations use third- subsets of a population. television spot advertising prices in the party services to identify advertisers 45. Second, inventory of ad- future, it does not do so today. On a advertising on other broadcast stations, supported, high-quality, long-form cost-per-point basis (cost to reach one but do not subscribe to similar services video on the internet is limited. percent of a relevant target population), for cable or digital advertising. Advertisers see value to advertising on over the last few years broadcast Similarly, the national sales television spot advertising prices have video that is watched by the audience representation firms regularly report to generally remained steady or increased. they seek to target. High-quality, long- broadcast stations about competition If cable spot or digital advertising was form video is the most similar content from representatives for other a close and robust competitor to to broadcast television programming broadcasters in the same DMA, but broadcast television spot advertising, available on the internet. The most rarely report on competition from popular high-quality, long-form video then, all else being equal, competition representatives for cable or digital available on the internet is provided from cable spot or digital advertising platforms. Many broadcasters use a through ad-free subscription services would place downward pressure on third-party data analysis service to help (like Netflix or Amazon Prime), over- broadcast television spot advertising set their spot advertising rate cards; that the-top MVPDs that sell cable television pricing. But they have not had this spot advertisements (like Sling and effect. service uses market share estimates from YouTube TV), or sold directly by the 49. The differentiation between other broadcasters as input data to networks on their own network sites. broadcast television spot advertising generate the rate cards, but does not use The remaining inventory of digital and cable spot and digital advertising market share estimates from cable or advertisements attached to high-quality, bears out in negotiations between digital advertising platforms. long-form video on the internet, which broadcasters and advertisers. 2. Geographic Markets is primarily sold by digital advertising Advertisers usually will put an platforms, is small today. Because of advertising buy out to bid to many or all 51. For an advertiser seeking to reach these limitations, digital video broadcast stations in a DMA, and will potential customers in a given DMA, advertising would be unable to expand not include MVPDs or digital broadcast television stations located output or increase sales sufficiently to advertisers in that same bid. In outside of the DMA do not provide defeat a small but significant increase in negotiations with broadcast stations, effective access to the advertiser’s target the prices charged for broadcast advertisers regularly discuss offered audience. The signals of broadcast television spot advertising in a given prices and opportunities from other television stations located outside of the DMA. broadcast stations in the same DMA to DMA generally do not reach any try to bargain down price, but they iv. Other Forms of Advertising significant portion of the target DMA rarely discuss price offers or through either over-the-air signal or 46. Other forms of advertising, such as opportunities from MVPDs or digital MVPD distribution. Because advertisers radio, newspaper, billboard, and direct- advertisers in those negotiations. When cannot reach viewers inside a DMA by mail advertising, also do not constitute a broadcaster salesperson internally advertising on stations outside the effective substitutes for broadcast analyzes the station’s performance on DMA, a hypothetical monopolist of television spot advertising. These forms any particular buy, the salesperson broadcast television spot advertising on of media do not reach as many local typically looks at the percentage of the stations in a given DMA would likely viewers or drive brand awareness to the buy that was allocated to each broadcast implement at least a small but same extent as broadcast television station, adding up to 100% of the buy. significant non-transitory price increase. does. Broadcast television spot The salesperson typically does not advertising possesses a unique consider any allocation of an 52. Each of the Overlap DMAs combination of attributes that advertiser’s spending on cable or digital accordingly constitutes a relevant advertisers value in a way that sets it advertising. Likewise, if an advertiser geographic market for the sale of apart from advertising on other media. reports to a broadcaster salesperson the broadcast television spot advertising Broadcast television spot advertising percentage of a buy that the broadcaster within the meaning of Section 7 of the combines sight, sound, and motion in a received, the advertiser typically reports Clayton Act, 15 U.S.C. § 18. way that makes television the broadcaster’s percentage of the C. Likely Anticompetitive Effects advertisements particularly memorable amount awarded to all broadcast and impactful. stations in the DMA, but does not 53. The chart below summarizes 47. For all of these reasons, include any amount spent on cable or Defendants’ approximate market shares advertisers likely would not respond to digital advertising. and the result of the transaction on the a small but significant non-transitory 50. Internally, broadcasters make most HHIs in the sale of broadcast television increase in the price of broadcast of their competitor comparisons against spot advertising in each of the Overlap television spot advertising by switching other broadcasters in the same DMA, DMAs.

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Nexstar share Tribune share Merged share Pre-merger Post-merger Overlap DMA (%) (%) (%) HHI HHI HHI increase

Wilkes Barre, PA ...... 35.8 47.6 83.4 3749 7161 3412 Norfolk, VA ...... 44.0 31.4 75.4 3277 6038 2761 Ft. Smith, AR ...... 29.1 41.3 70.3 3361 5761 2400 Davenport, IA ...... 27.0 27.1 54.2 3568 5035 1467 Grand Rapids, MI ...... 36.0 19.0 55.0 2700 4065 1365 Des Moines, IA ...... 11.2 34.6 45.8 3235 4009 774 Richmond, VA ...... 20.9 29.9 50.8 2733 3981 1248 Huntsville, AL ...... 13.9 33.0 46.9 2786 3704 918 Memphis, TN ...... 14.5 33.3 47.9 2558 3527 969 Harrisburg, PA ...... 21.8 20.8 42.5 2524 3427 903 Indianapolis, IN ...... 13.1 31.0 44.2 2577 3393 815 Hartford, CT ...... 22.7 20.6 43.3 2306 3240 934 Salt Lake City, UT ...... 16.0 24.1 40.0 2329 3098 769

54. Defendants’ large market shares news), and less innovation in providing d. competition in the sale of broadcast reflect the fact that, in each Overlap advertising solutions to advertisers. television spot advertising in each of the DMA, Nexstar and Tribune each own 57. For these reasons, the proposed Overlap DMAs likely would be one or more significant broadcast merger likely would substantially lessen substantially lessened; stations. As indicated by the preceding competition in the sale of broadcast e. competition between Nexstar and chart, the post-merger HHI in each television spot advertising in each of the Tribune in the sale of broadcast Overlap DMA is well above 2,500, and Overlap DMAs, in violation of Section television spot advertising in each of the the HHI increase in each Overlap DMA 7 of the Clayton Act, 15 U.S.C. § 18. Overlap DMAs would be eliminated; far exceeds the 200-point threshold and VI. ABSENCE OF COUNTERVAILING above which a transaction is presumed f. prices for spot advertising on FACTORS to enhance market power and harm broadcast television stations in each of competition. Defendants’ proposed 58. Entry of a new broadcast station the Overlap DMAs likely would transaction is thus presumptively into an Overlap DMA would not be increase, the quality of local unlawful in each Overlap DMA. timely, likely, or sufficient to prevent or programming likely would decrease, 55. In addition to substantially remedy the proposed merger’s likely and Defendants likely would be less increasing the concentration levels in anticompetitive effects in the relevant innovative in providing advertising each Overlap DMA, the proposed markets. The FCC regulates entry solutions to advertisers. merger would combine Nexstar’s and through the issuance of broadcast VIII. RELIEF REQUESTED Tribune’s broadcast television stations, television licenses, which are difficult which are close substitutes and to obtain because the availability of 61. The Plaintiffs request that: generally vigorous competitors in the spectrum is limited and the regulatory a. the Court adjudge the proposed sale of broadcast television spot process associated with obtaining a merger to violate Section 7 of the advertising. In each Overlap DMA, license is lengthy. Even if a new signal Clayton Act, 15 U.S.C. § 18; Defendants’ broadcast stations compete were to become available, commercial b. the Court enjoin and restrain head-to-head in the sale of broadcast success would come over a period of Defendants from carrying out the television spot advertising. Advertisers many years, if at all. merger, or entering into any other obtain lower prices as a result of this 59. Defendants cannot demonstrate agreement, understanding, or plan by competition. In particular, advertisers in merger-specific, verifiable efficiencies which Nexstar would merge with, the Overlap DMAs can respond to an sufficient to offset the proposed acquire, or be acquired by Tribune, or increase in one station’s spot advertising merger’s likely anticompetitive effects. Nexstar and Tribune would combine prices by purchasing, or threatening to any of their respective Big 4 stations in purchase, advertising spots on one or VII. VIOLATIONS ALLEGED the Big 4 Overlap DMAs or their stations more stations owned by different 60. The proposed merger of Nexstar in the Indianapolis DMA; broadcast station groups—‘‘buying and Tribune likely would substantially c. the Court award Plaintiffs the costs around’’ the station that raises its prices. lessen competition in interstate trade of this action; and This practice allows the advertisers and commerce, in violation of Section 7 d. the Court award such other relief to either to avoid the first station’s price of the Clayton Act, 15 U.S.C. § 18. The Plaintiffs as the Court may deem just increase, or to pressure the first station merger likely would have the following and proper. to lower its prices. effects, among others: Dated: July 31, 2019 56. If Nexstar acquires Tribune’s a. competition in the licensing of Big Respectfully submitted, stations, advertisers seeking to reach 4 television retransmission consent in FOR PLAINTIFF UNITED STATES OF audiences in the Overlap DMAs would each of the Big 4 Overlap DMAs likely AMERICA have fewer competing broadcast would be substantially lessened; lllllllllllllllllllll television alternatives available to meet b. competition between Nexstar and MAKAN DELRAHIM (D.C. Bar # 457795) Assistant Attorney General for Antitrust their advertising needs, and would find Tribune in the licensing of Big 4 lllllllllllllllllllll it more difficult and costly to buy television retransmission consent in ANDREW C. FINCH around higher prices imposed by the each of the Big 4 Overlap DMAs would Principal Deputy Assistant Attorney General combined stations. This would likely be eliminated; lllllllllllllllllllll result in increased advertising prices, c. the fees charged to MVPDs for the PATRICIA A. BRINK lower quality local programming to licensing of retransmission consent in Director of Civil Enforcement which the spot advertising is attached each of the Big 4 Overlap DMAs likely lllllllllllllllllllll (for example, less investment in local would increase; OWEN M. KENDLER

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Chief, Media, Entertainment & Professional UNITED STATES DISTRICT COURT Defendants divest any of the Divestiture Services Section FOR THE DISTRICT OF COLUMBIA Assets. lllllllllllllllllllll B. ‘‘Circle City Broadcasting’’ means YVETTE TARLOV (D.C. Bar # 442452) UNITED STATES OF AMERICA, STATE OF ILLINOIS, COMMONWEALTH OF Circle City Broadcasting I, Inc., a Assistant Chief, Media, Entertainment & Delaware corporation headquartered in Professional Services Section PENNSYLVANIA, and COMMONWEALTH OF VIRGINIA, Plaintiffs, v. NEXSTAR Indianapolis, Indiana, its successors and lllllllllllllllllllll MEDIA GROUP, INC. and TRIBUNE MEDIA assigns, and its subsidiaries, divisions, LEE F. BERGER (D.C. Bar # 482435) COMPANY, Defendants. groups, affiliates, partnerships, and joint LAUREN G.S. RIKER GARRETT LISKEY Civil Action No. 1:19–cv–2295 (DLF) ventures, and their directors, members, United States Department of Justice, PROPOSED FINAL JUDGMENT officers, managers, agents, and Antitrust Division, Media, Entertainment & employees. Professional Services Section, 450 Fifth WHEREAS, Plaintiffs, United States of C. ‘‘Cooperative Agreement’’ means Street, N.W., Suite 4000, Washington, DC America and the State of Illinois and the (1) joint sales agreements, joint 20530, Telephone: (202) 598-2698, Facsimile: Commonwealths of Pennsylvania and operating agreements, local marketing (202) 514-7308 Virginia (collectively, the ‘‘Plaintiff agreements, news share agreements, or FOR PLAINTIFF STATE OF ILLINOIS States’’), filed their Complaint on July shared services agreements, or (2) any KWAME RAOUL 31, 2019, and Defendant Nexstar Media agreement through which a person Attorney General Group, Inc., and Defendant Tribune exercises control over any broadcast lllllllllllllllllllll Media Company, by their respective television station not owned by the Elizabeth L. Maxeiner attorneys, have consented to the entry of person. Assistant Attorney General, Antitrust Bureau, this Final Judgment without trial or D. ‘‘Defendants’’ means Nexstar and Office of the Illinois Attorney General, 100 adjudication of any issue of fact or law Tribune. West Randolph street, Chicago, Illinois and without this Final Judgment E. ‘‘Divestiture Assets’’ means the 60601, Phone: 312-814-5470, Facsimile: 312- constituting any evidence against or 814-4209, E-mail: [email protected] Divestiture Stations and all assets, admission by any party regarding any tangible or intangible, necessary for the FOR THE COMMONWEALTH OF issue of fact or law; PENNSYLVANIA operation of the Divestiture Stations as AND WHEREAS, Defendants agree to viable, ongoing commercial broadcast JOSH SHAPIRO be bound by the provisions of this Final Attorney General television stations, including, but not Judgment pending its approval by the limited to, all real property (owned or JAMES A. DONAHUE, III Court; Executive Deputy Attorney General leased), all broadcast equipment, office AND WHEREAS, the essence of this equipment, office furniture, fixtures, Public Protection Division Final Judgment is the prompt and TRACY W. WERTZ materials, supplies, and other tangible certain divestiture of certain rights or property relating to the Divestiture Chief Deputy Attorney General assets by Defendants to assure that Antitrust Section Stations; all licenses, permits, and competition is not substantially JOSEPH S. BETSKO authorizations issued by, and lessened; applications submitted to, the FCC and PA ID #82620 AND WHEREAS, Defendants agree to Senior Deputy Attorney General other government agencies relating to make certain divestitures for the lllllllllllllllllllll the Divestiture Stations; all contracts purpose of remedying the loss of JENNIFER A. THOMSON (including programming contracts and competition alleged in the Complaint; PA ID #89360 rights), agreements, network affiliation AND WHEREAS, Defendants have Senior Deputy Attorney General agreements, leases, and commitments represented to Plaintiffs that the Antitrust Section, Office of the Attorney and understandings of Defendants divestitures required below can and will General, 14th Floor, Strawberry Square, relating to the Divestiture Stations; all Harrisburg, PA 17120, Telephone: (717) 787- be made and that Defendants will not trademarks, service marks, trade names, 4530, Fax: (717) 787-1190, E-mail: later raise any claim of hardship or copyrights, patents, slogans, [email protected] difficulty as grounds for asking the programming materials, and FOR PLAINTIFF COMMONWEALTH OF Court to modify any of the divestiture promotional materials relating to the VIRGINIA provisions contained below; MARK R. HERRING NOW THEREFORE, before any Divestiture Stations; all customer lists, Attorney General testimony is taken, without trial or contracts, accounts, and credit records CYNTHIA E. HUDSON adjudication of any issue of fact or law, related to the Divestiture Stations; all Chief Deputy Attorney General and upon consent of the parties, it is logs and other records maintained by SAMUEL T. TOWELL ORDERED, ADJUDGED, AND Defendants in connection with the Deputy Attorney General DECREED: Divestiture Stations; and the content Civil Division and affiliation of each digital RICHARD S. SCHWEIKER, JR. I. JURISDICTION subchannel of the Divestiture Stations. Senior Assistant Attorney General and Chief This Court has jurisdiction over the F. ‘‘Divestiture Stations’’ means Consumer Protection Section subject matter of and each of the parties KCWI-TV, KFSM-TV, KSTU, WATN- lllllllllllllllllllll to this action. The Complaint states a TV, WCCT-TV, WGNT, WISH-TV, SARAH OXENHAM ALLEN claim upon which relief may be granted WLMT, WNDY-TV, WNEP-TV, WOI-DT, VA Bar #33217 against Defendants under Section 7 of WPMT, WQAD-TV, WTIC-TV, WTKR, Senior Assistant Attorney General and Unit the Clayton Act, as amended, 15 U.S.C. WTVR-TV, WXMI, and WZDX. Manager § 18. G. ‘‘DMA’’ means Designated Market TYLER T. HENRY Area as defined by The Nielsen VA Bar #87621 II. DEFINITIONS Assistant Attorney General Company (US), LLC, based upon Antitrust Unit, Office of the Attorney As used in this Final Judgment: viewing patterns and used by BIA General, 202 North 9th Street, Richmond, VA A. ‘‘Acquirer’’ means Scripps, Advisory Services’ Investing in 23219, Telephone: (804) 786-6657, Fax: (804) TEGNA, Circle City Broadcasting, or any Television Market Report 2018 (4th 786-0122, E-mail: [email protected] other entity or entities to which edition).

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H. ‘‘FCC’’ means the Federal S. ‘‘WISH-TV’’ means the CW- Huntsville-Decatur-Florence, Alabama, Communications Commission. affiliated broadcast television station DMA, owned by Defendant Nexstar. bearing that call sign located in the I. ‘‘KCWI-TV’’ means the CW- III. APPLICABILITY affiliated broadcast television station Indianapolis, Indiana, DMA, owned by bearing that call sign located in the Des Defendant Nexstar. A. This Final Judgment applies to Moines-Ames, Iowa, DMA, owned by T. ‘‘WLMT’’ means the CW-affiliated Defendants and all other persons in Defendant Nexstar. broadcast television station bearing that active concert or participation with any J. ‘‘KFSM-TV’’ means the CBS- call sign located in the Memphis, of them who receive actual notice of this affiliated broadcast television station Tennessee, DMA, owned by Defendant Final Judgment by personal service or bearing that call sign located in the Ft. Nexstar. otherwise. Smith-Fayetteville-Springdale-Rogers, U. ‘‘WNDY-TV’’ means the B. If, prior to complying with Sections Arkansas, DMA, owned by Defendant MyNetworkTV-affiliated broadcast IV and V of this Final Judgment, Tribune. television station bearing that call sign Defendants sell or otherwise dispose of K. ‘‘KSTU’’ means the FOX-affiliated located in the Indianapolis, Indiana, all or substantially all of their assets or of lesser business units that include the broadcast television station bearing that DMA, owned by Defendant Nexstar. Divestiture Assets, they shall require the call sign located in the Salt Lake City, V. ‘‘WNEP-TV’’ means the ABC- purchaser to be bound by the provisions Utah, DMA, owned by Defendant affiliated broadcast television station of this Final Judgment. Defendants need Tribune. bearing that call sign located in the not obtain such an agreement from the L. ‘‘Nexstar’’ means defendant Nexstar Wilkes Barre-Scranton, Pennsylvania, Acquirers. Media Group, Inc., a Delaware DMA, owned by Dreamcatcher corporation headquartered in Irving, Broadcasting LLC, regarding which IV. DIVESTITURES Texas, its successors and assigns, and its Tribune will exercise its option to A. Defendants are ordered and subsidiaries, divisions, groups, acquire from Dreamcatcher Broadcasting directed, within thirty calendar days affiliates, partnerships, and joint LLC. after the Court’s entry of the Hold ventures, and their directors, officers, W. ‘‘WOI-DT’’ means the ABC- Separate Stipulation and Order in this managers, agents, and employees. affiliated broadcast television station matter to divest the Divestiture Assets in M. ‘‘Scripps’’ means the E.W. Scripps bearing that call sign located in the Des a manner consistent with this Final Company, an Ohio corporation Moines-Ames, Iowa, DMA, owned by Judgment to Acquirers acceptable to the headquartered in Cincinnati, Ohio, its Defendant Nexstar. United States, in its sole discretion. The successors and assigns, and its X. ‘‘WPMT’’ means the FOX-affiliated United States, in its sole discretion, may subsidiaries, divisions, groups, broadcast television station bearing that agree to one or more extensions of this affiliates, partnerships, and joint call sign located in the Harrisburg- time period not to exceed ninety ventures, and their directors, officers, Lancaster-Lebanon-York, Pennsylvania, calendar days in total, and shall notify managers, agents, and employees. DMA, owned by Defendant Tribune. the Court in such circumstances. N. ‘‘TEGNA’’ means TEGNA Inc., a Y. ‘‘WQAD-TV’’ means the ABC- B. With respect to divestiture of the Delaware corporation headquartered in affiliated broadcast television station Divestiture Assets by Defendants, or by McLean, Virginia, its successors and bearing that call sign located in the the Divestiture Trustee appointed assigns, and its subsidiaries, divisions, Davenport, Iowa-Rock Island-Moline, pursuant to Section V of this Final groups, affiliates, partnerships, and joint Illinois, DMA, owned by Defendant Judgment, if applications have been ventures, and their directors, officers, Tribune. filed with the FCC within the period managers, agents, and employees. Z. ‘‘WTIC-TV’’ means the FOX- permitted for divestiture seeking O. ‘‘Tribune’’ means defendant affiliated broadcast television station approval to assign or transfer licenses to Tribune Media Company, a Delaware bearing that call sign located in the the Acquirer(s) of the Divestiture Assets, corporation headquartered in Chicago, Hartford-New Haven, Connecticut, but an order or other dispositive action Illinois, its successors and assigns, and DMA, owned by Defendant Tribune. by the FCC on such applications has not its subsidiaries, divisions, groups, AA. ‘‘WTKR’’ means the CBS- been issued before the end of the period affiliates, partnerships, and joint affiliated broadcast television station permitted for divestiture, the period ventures, and their directors, officers, bearing that call sign located in the shall be extended with respect to managers, agents, and employees. Norfolk-Portsmouth-Newport News, divestiture of the Divestiture Assets for P. ‘‘WATN-TV’’ means the ABC- Virginia, DMA, owned by Dreamcatcher which no FCC order has issued until affiliated broadcast television station Broadcasting LLC, regarding which five days after such order is issued. bearing that call sign located in the Tribune will exercise its option to Defendants agree to use their best efforts Memphis, Tennessee, DMA, owned by acquire from Dreamcatcher Broadcasting to divest the Divestiture Assets and to Defendant Nexstar. LLC. obtain all necessary FCC approvals as Q. ‘‘WCCT-TV’’ means the CW- BB. ‘‘WTVR-TV’’ means the CBS- expeditiously as possible. This Final affiliated broadcast television station affiliated broadcast television station Judgment does not limit the FCC’s bearing that call sign located in the bearing that call sign located in the exercise of its regulatory powers and Hartford-New Haven, Connecticut, Richmond-Petersburg, Virginia, DMA, process with respect to the Divestiture DMA, owned by Defendant Tribune. owned by Defendant Tribune. Assets. Authorization by the FCC to R. ‘‘WGNT’’ means the CW-affiliated CC. ‘‘WXMI’’ means the FOX- conduct the divestiture of a Divestiture broadcast television station bearing that affiliated broadcast television station Asset in a particular manner will not call sign located in the Norfolk- bearing that call sign located in the modify any of the requirements of this Portsmouth-Newport News, Virginia, Grand Rapids-Kalamazoo-Battle Creek, Final Judgment. DMA, owned by Dreamcatcher Michigan, DMA, owned by Defendant C. In the event that Defendants are Broadcasting LLC, regarding which Tribune. attempting to divest the WISH-TV or Tribune will exercise its option to DD. ‘‘WZDX’’ means the FOX- WNDY-TV Divestiture Assets to an acquire from Dreamcatcher Broadcasting affiliated broadcast television station Acquirer other than Circle City LLC. bearing that call sign located in the Broadcasting; the KSTU, WGNT, WTKR,

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WTVR-TV, or WXMI Divestiture Assets such capabilities independently. The operational, technical, and financial to an Acquirer other than Scripps; or the terms and conditions of any contractual capability) to compete effectively in the KFSM-TV, KCWI-TV, WATN-TV, arrangement intended to satisfy this commercial television broadcasting WCCT-TV, WLMT, WOI-DT, WNEP-TV, provision must be reasonably related to business; and WPMT, WQAD, WTIC-TV or WZDX market conditions for the services (2) shall be accomplished so as to Divestiture Assets to an Acquirer other provided, and shall be subject to the satisfy the United States, in its sole than TEGNA: approval of the United States, in its sole discretion, after consultation with the (1) Defendants promptly shall make discretion. The United States in its sole Plaintiff States, that none of the terms of known, by usual and customary means, discretion may approve one or more any agreement between any Acquirer the availability of the Divestiture Assets; extensions of this agreement for a total and Defendants give Defendants the (2) Defendants shall inform any of up to an additional six months, or, ability unreasonably to raise the costs of person making an inquiry regarding a with respect to transition services the Acquirer, to lower the efficiency of possible purchase of the relevant provided by (1) Defendants to an the Acquirer, or otherwise to interfere in Divestiture Assets that they are being Acquirer for Tribune’s proprietary the ability of the Acquirer to compete divested pursuant to this Final software; or (2) an Acquirer to effectively. Judgment and provide that person with Defendants for master control hub V. APPOINTMENT OF a copy of this Final Judgment; operating services and distribution DIVESTITURE TRUSTEE (3) Defendants shall offer to furnish to services, for a total of up to an all prospective Acquirers, subject to additional eighteen months. A. If Defendants have not divested the customary confidentiality assurances, I. Defendants shall warrant to the Divestiture Assets within the time all information and documents relating Acquirers (1) that there are no material period specified in Paragraph IV(A) and to the relevant Divestiture Assets defects in the environmental, zoning, or Paragraph IV(B), Defendants shall notify customarily provided in a due diligence other permits pertaining to the the United States and a Plaintiff State, process except such information or operation of the Divestiture Assets, and if any subject Divestiture Asset is documents subject to the attorney-client (2) that, following the sale of the located in that Plaintiff State, of that fact privilege or work-product doctrine; and Divestiture Assets, Defendants will not in writing, specifically identifying the (4) Defendants shall make available undertake, directly or indirectly, any Divestiture Assets that have not been such information to the United States at challenges to the environmental, zoning, divested. Upon application of the the same time that such information is or other permits relating to the United States, the Court shall appoint a made available to any other person. operation of the Divestiture Assets. Divestiture Trustee selected by the D. Defendants shall provide each J. Unless the United States otherwise United States and approved by the Acquirer and the United States consents in writing, the divestitures Court to effect the divestiture of the information relating to the personnel pursuant to Section IV, or by the Divestiture Assets that have not yet been involved in the operation and Divestiture Trustee appointed pursuant divested. management of the relevant Divestiture to Section V of this Final Judgment, B. After the appointment of a Assets to enable the Acquirer to make shall include the entire Divestiture Divestiture Trustee becomes effective, offers of employment. Defendants will Assets and shall be accomplished in only the Divestiture Trustee shall have not interfere with any negotiations by such a way as to satisfy the United the right to sell the relevant Divestiture any Acquirer to employ or contract with States, in its sole discretion, after Assets. The Divestiture Trustee shall any Defendant employee whose primary consultation with the Plaintiff States, have the power and authority to responsibility relates to the operation or that the Divestiture Assets can and will accomplish the divestiture to an management of the relevant Divestiture be used by each Acquirer as part of a Acquirer acceptable to the United Assets. viable, ongoing commercial television States, in its sole discretion, after E. Defendants shall permit the broadcasting business. Divestiture of the consultation with the Plaintiff States, at prospective Acquirers of the Divestiture Divestiture Assets may be made to one such price and on such terms as are Assets to have reasonable access to or more Acquirers, provided that in then obtainable upon reasonable effort personnel and to make inspections of each instance it is demonstrated to the by the Divestiture Trustee, subject to the the physical facilities of the Divestiture sole satisfaction of the United States, provisions of this Final Judgment, and Assets; access to any and all after consultation with the Plaintiff shall have such other powers as this environmental, zoning, and other permit States, that the Divestiture Assets will Court deems appropriate. Subject to documents and information; and access remain viable, and the divestiture of Paragraph V(D) of this Final Judgment, to any and all financial, operational, or such assets will remedy the competitive the Divestiture Trustee may hire at the other documents and information harm alleged in the Complaint. If any of cost and expense of Defendants any customarily provided as part of a due the terms of an agreement between any agents or consultants, including, but not diligence process. Defendants and any Acquirer to limited to, investment bankers, F. Defendants shall warrant to the effectuate the divestitures required by attorneys, and accountants, who shall be Acquirers that each asset will be the Final Judgment varies from the solely accountable to the Divestiture operational on the date of sale. terms of this Final Judgment then, to the Trustee, reasonably necessary in the G. Defendants shall not take any extent that Defendants cannot fully Divestiture Trustee’s judgment to assist action that will impede in any way the comply with both terms, this Final in the divestiture. Any such agents or permitting, operation, or divestiture of Judgment shall determine Defendants’ consultants shall serve on such terms the Divestiture Assets. obligations. The divestitures, whether and conditions as the United States H. At the option of the respective made pursuant to Section IV or Section approves, including confidentiality Acquirer, Defendants shall enter into a V of this Final Judgment: requirements and conflict of interest transition services agreement with each (1) shall be made to Acquirers that, in certifications. Acquirer for a period of up to six the United States’ sole judgment, after C. Defendants shall not object to a sale months to facilitate the continuous consultation with the Plaintiff States, by the Divestiture Trustee on any operations of the relevant Divestiture have the intent and capability ground other than the Divestiture Assets until the Acquirer can provide (including the necessary managerial, Trustee’s malfeasance. Any such

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objections by Defendants must be information; or any applicable required herein, shall notify the United conveyed in writing to the United States privileges. Defendants shall take no States and the Plaintiff States of any and the Divestiture Trustee within ten action to interfere with or to impede the proposed divestiture required by calendar days after the Divestiture Divestiture Trustee’s accomplishment of Section IV or Section V of this Final Trustee has provided the notice the divestiture. Judgment. If the Divestiture Trustee is required under Section VI. F. After its appointment, the responsible, it shall similarly notify D. The Divestiture Trustee shall serve Divestiture Trustee shall file monthly Defendants. The notice shall set forth at the cost and expense of Defendants reports with the United States and the the details of the proposed divestiture pursuant to a written agreement, on Plaintiff States setting forth the and list the name, address, and such terms and conditions as the United Divestiture Trustee’s efforts to telephone number of each person not States approves, including accomplish the relevant divestitures previously identified who tendered an confidentiality requirements and ordered under this Final Judgment. offer for, or expressed an interest in or conflict of interest certifications. The Such reports shall include the name, desire to acquire, any ownership Divestiture Trustee shall account for all address, and telephone number of each interest in the relevant Divestiture monies derived from the sale of the person who, during the preceding Assets, together with full details of the relevant Divestiture Assets and all costs month, made an offer to acquire, same. and expenses so incurred. After expressed an interest in acquiring, B. Within fifteen calendar days of approval by the Court of the Divestiture entered into negotiations to acquire, or receipt by the United States of such Trustee’s accounting, including fees for was contacted or made an inquiry about notice, the United States, in its sole its services yet unpaid and those of any acquiring, any interest in the Divestiture discretion, after consultation with the agents and consultants retained by the Assets, and shall describe in detail each Plaintiff States, may request from Divestiture Trustee, all remaining contact with any such person. The Defendants, the proposed Acquirer, any money shall be paid to Defendants and Divestiture Trustee shall maintain full other third party, or the Divestiture the trust shall then be terminated. The records of all efforts made to divest the Trustee, if applicable, additional compensation of the Divestiture Trustee relevant Divestiture Assets. information concerning the proposed G. If the Divestiture Trustee has not and any agents and consultants retained divestiture, the proposed Acquirer, and accomplished the divestitures ordered by the Divestiture Trustee shall be any other potential Acquirers. under this Final Judgment within six reasonable in light of the value of the Defendants and the Divestiture Trustee months after its appointment, the Divestiture Assets subject to sale by the shall furnish any additional information Divestiture Trustee and based on a fee Divestiture Trustee shall promptly file requested within fifteen calendar days arrangement providing the Divestiture with the Court a report setting forth (1) of the receipt of the request, unless the Trustee with incentives based on the the Divestiture Trustee’s efforts to parties shall otherwise agree. price and terms of the divestiture and accomplish the required divestitures, (2) the speed with which it is the reasons, in the Divestiture Trustee’s C. Within thirty calendar days after accomplished, but the timeliness of the judgment, why the required divestitures receipt of the notice or within twenty divestiture is paramount. If the have not been accomplished, and (3) the calendar days after the United States has Divestiture Trustee and Defendants are Divestiture Trustee’s recommendations. been provided the additional unable to reach agreement on the To the extent such report contains information requested from Defendants, Divestiture Trustee’s or any agent’s or information that the Divestiture Trustee the proposed Acquirer, any third party, consultant’s compensation or other deems confidential, such reports shall and the Divestiture Trustee, whichever terms and conditions of engagement not be filed on the public docket of the is later, the United States shall provide within fourteen calendar days of the Court. The Divestiture Trustee shall at written notice to Defendants and the appointment of the Divestiture Trustee, the same time furnish such report to the Divestiture Trustee, if there is one, agent, or consultant, the United States United States, which shall have the stating whether or not, in its sole may, in its sole discretion, take right to make additional discretion, after consultation with the appropriate action, including making a recommendations consistent with the Plaintiff States, it objects to the Acquirer recommendation to the Court. The purpose of the trust. The Court or any aspect of the proposed Divestiture Trustee shall, within three thereafter shall enter such orders as it divestiture. If the United States provides business days of hiring any other agents shall deem appropriate to carry out the written notice that it does not object, the or consultants, provide written notice of purpose of this Final Judgment, which divestiture may be consummated, such hiring and the rate of may, if necessary, include extending the subject only to Defendants’ limited right compensation to Defendants and the trust and the term of the Divestiture to object to the sale under Paragraph United States. Trustee’s appointment by a period V(C) of this Final Judgment. Absent E. Defendants shall use their best requested by the United States. written notice that the United States efforts to assist the Divestiture Trustee H. If the United States determines that does not object to the proposed in accomplishing the required the Divestiture Trustee has ceased to act Acquirer, or upon objection by the divestitures. The Divestiture Trustee or failed to act diligently or in a United States, a divestiture proposed and any agents or consultants retained reasonably cost-effective manner, the under Section IV or Section V shall not by the Divestiture Trustee shall have United States may recommend that the be consummated. Upon objection by full and complete access to the Court appoint a substitute Divestiture Defendants under Paragraph V(C), a personnel, books, records, and facilities Trustee. divestiture proposed under Section V of the business to be divested, and shall not be consummated unless Defendants shall provide or develop VI. NOTICE OF PROPOSED approved by the Court. financial and other information relevant DIVESTITURE VII. FINANCING to such business as the Divestiture A. Within two business days Trustee may reasonably request, subject following execution of a definitive Defendants shall not finance all or to reasonable protection for trade divestiture agreement, Defendants or the any part of any purchase made pursuant secrets; other confidential research, Divestiture Trustee, whichever is then to Section IV or Section V of this Final development, or commercial responsible for effecting the divestitures Judgment.

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VIII. HOLD SEPARATE C. Defendants shall keep all records of Federal Rules of Civil Procedure, and all efforts made to preserve and divest Defendants mark each pertinent page of Until the divestitures required by this the Divestiture Assets until one year such material, ‘‘Subject to claim of Final Judgment have been after such divestitures have been protection under Rule 26(c)(1)(G) of the accomplished, Defendants shall take all completed. Federal Rules of Civil Procedure,’’ then steps necessary to comply with the Hold X. COMPLIANCE INSPECTION the United States shall give Defendants Separate Stipulation and Order entered ten calendar days’ notice prior to by this Court. Defendants shall take no A. For the purposes of determining or divulging such material in any legal action that would jeopardize the securing compliance with this Final proceeding (other than a grand jury divestitures ordered by this Court. Judgment, or of any related orders such proceeding). as any Hold Separate Stipulation and IX. AFFIDAVITS Order, or of determining whether the XI. NO REACQUISITION AND LIMITATIONS ON A. Within twenty calendar days of the Final Judgment should be modified or COLLABORATIONS filing of the Complaint in this matter, vacated, and subject to any legally and every thirty calendar days thereafter recognized privilege, from time to time A. During the term of this Final until the divestitures have been authorized representatives of the United Judgment, Defendants may not (1) completed under Section IV and Section States, including agents retained by the reacquire any part of the Divestiture V of this Final Judgment, Defendants United States, shall, upon written Assets, unless approved by the United shall deliver to the United States and request of an authorized representative States in its sole discretion; (2) acquire the Plaintiff States an affidavit, signed of the Assistant Attorney General in any option to reacquire any part of the by each Defendant’s Chief Financial charge of the Antitrust Division, and on Divestiture Assets or to assign the Officer and General Counsel, which reasonable notice to Defendants, be Divestiture Assets to any other person; shall describe the fact and manner of permitted: (3) enter into any Cooperative (1) access during Defendants’ office Defendants’ compliance with Section IV Agreement, (except as provided in this hours to inspect and copy, or at the and Section V of this Final Judgment. Paragraph XI(A) or in Paragraph XI(B)), option of the United States, to require Each such affidavit shall include the or conduct other business negotiations Defendants to provide electronic copies name, address, and telephone number of jointly with any Acquirer with respect of, all books, ledgers, accounts, records, each person who, during the preceding to the Divestiture Assets divested to data, and documents in the possession, thirty calendar days, made an offer to such Acquirer; or (4) provide financing custody, or control of Defendants, acquire, expressed an interest in or guarantees of financing with respect relating to any matters contained in this acquiring, entered into negotiations to to the Divestiture Assets. The acquire, or was contacted or made an Final Judgment; and (2) to interview, either informally or Cooperative Agreement prohibition does inquiry about acquiring, any interest in on the record, Defendants’ officers, not preclude Defendants from the Divestiture Assets, and shall employees, or agents, who may have continuing or entering into agreements describe in detail each contact with any their individual counsel present, in a form customarily used in the such person during that period. Each regarding such matters. The interviews industry to (a) share news helicopters or such affidavit shall also include a shall be subject to the reasonable (b) pool generic video footage that does description of the efforts Defendants convenience of the interviewee and not include recording a reporter or other have taken to solicit buyers for and without restraint or interference by on-air talent, and does not preclude complete the sale of the Divestiture Defendants. Defendants from entering into any non- Assets, including efforts to secure FCC B. Upon the written request of an sales-related shared services agreement or other regulatory approvals, and to authorized representative of the or transition services agreement that is provide required information to Assistant Attorney General in charge of approved in advance by the United prospective Acquirers, including the the Antitrust Division, Defendants shall States in its sole discretion. limitations, if any, on such information. submit written reports or responses to B. Paragraph XI(A) shall not prevent Assuming the information set forth in written interrogatories, under oath if Defendants from entering into the affidavit is true and complete, any requested, relating to any of the matters agreements to provide news objection by the United States to contained in this Final Judgment as may programming to broadcast television information provided by Defendants, be requested. stations included in the Divestiture including limitations on information, C. No information or documents Assets, provided that Defendants do not shall be made within fourteen calendar obtained by the means provided in this sell, price, market, hold out for sale, or days of receipt of such affidavit. Section shall be divulged by the United profit from the sale of advertising B. Within twenty calendar days after States to any person other than an associated with the news programming the filing of the Complaint in this authorized representative of the provided by Defendants under such matter, Defendants shall deliver to the executive branch of the United States, agreements except by approval of the United States an affidavit that describes except in the course of legal proceedings United States in its sole discretion. in reasonable detail all actions to which the United States is a party XII. RETENTION OF Defendants have taken and all steps (including grand jury proceedings), or JURISDICTION Defendants have implemented on an for the purpose of securing compliance ongoing basis to comply with Section with this Final Judgment, or as The Court retains jurisdiction to VIII of this Final Judgment. Defendants otherwise required by law. enable any party to this Final Judgment shall deliver to the United States an D. If at the time that Defendants to apply to the Court at any time for affidavit describing any changes to the furnish information or documents to the further orders and directions as may be efforts and actions outlined in United States, Defendants represent and necessary or appropriate to carry out or Defendants’ earlier affidavits filed identify in writing the material in any construe this Final Judgment, to modify pursuant to this Paragraph IX(B) within such information or documents to any of its provisions, to enforce fifteen calendar days after the change is which a claim of protection may be compliance, and to punish violations of implemented. asserted under Rule 26(c)(1)(G) of the its provisions.

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XIII. ENFORCEMENT OF FINAL Defendant complies with the terms of agreed to acquire Tribune Media JUDGMENT the Final Judgment, and (4) fees or Company (‘‘Tribune,’’ and together with A. The United States retains and expenses as called for in Paragraph Nexstar, ‘‘Defendants’’) for reserves all rights to enforce the XIII(C). approximately $6.4 billion. The United States filed a civil antitrust Complaint provisions of this Final Judgment, XIV. EXPIRATION OF FINAL including the right to seek an order of JUDGMENT on July 31, 2019, seeking to enjoin the contempt from the Court. Defendants proposed merger. The Complaint alleges Unless the Court grants an extension, that the likely effect of this merger agree that in any civil contempt action, this Final Judgment shall expire ten any motion to show cause, or any would be to substantially lessen years from the date of its entry, except competition in violation of Section 7 of similar action brought by the United that after five years from the date of its States regarding an alleged violation of the Clayton Act, 15 U.S.C. § 18, in entry, this Final Judgment may be thirteen Designated Market Areas this Final Judgment, the United States terminated upon notice by the United (‘‘DMAs’’ 3): (1) Twelve DMAs in which may establish a violation of the Final States, after consultation with the Defendants license the television Judgment and the appropriateness of Plaintiff States, to the Court and programming of NBC, CBS, ABC, and any remedy therefor by a preponderance Defendants that the divestitures have FOX (collectively, ‘‘Big 4’’) affiliate of the evidence, and Defendants waive been completed and that the stations to cable, satellite, fiber optic any argument that a different standard continuation of the Final Judgment no television, and over-the-top providers of proof should apply. longer is necessary or in the public (referred to collectively as multichannel B. This Final Judgment should be interest. video programming distributors, or interpreted to give full effect to the ‘‘MVPDs’’) for retransmission to their procompetitive purposes of the antitrust XV. PUBLIC INTEREST subscribers (collectively referred to in laws and to restore all competition the DETERMINATION this Competitive Impact Statement as United States alleged was harmed by the Entry of this Final Judgment is in the the ‘‘Big 4 Overlap DMAs’’), and (2) challenged conduct. Defendants agree public interest. The parties have those twelve DMAs plus the that they may be held in contempt of, complied with the requirements of the Indianapolis, Indiana DMA in which and that the Court may enforce, any Antitrust Procedures and Penalties Act, Defendants sell broadcast television provision of this Final Judgment that, as 15 U.S.C § 16, including making copies spot advertising (collectively referred to interpreted by the Court in light of these available to the public of this Final in this Competitive Impact Statement as procompetitive principles and applying Judgment, the Competitive Impact the ‘‘Overlap DMAs’’). ordinary tools of interpretation, is stated Statement, any comments thereon, and At the same time the Complaint was specifically and in reasonable detail, the United States’ responses to filed, the United States filed a Hold whether or not it is clear and comments. Based upon the record Separate Stipulation and Order (‘‘Hold unambiguous on its face. In any such before the Court, which includes the Separate’’) and proposed Final interpretation, the terms of this Final Competitive Impact Statement and any Judgment, which are designed to Judgment should not be construed comments and responses to comments eliminate the anticompetitive effects of against either party as the drafter. filed with the Court, entry of this Final the acquisition. Under the proposed C. In any enforcement proceeding in Judgment is in the public interest. Final Judgment, which is explained which the Court finds that Defendants Date: llllllllllllllllll more fully below, Defendants are have violated this Final Judgment, the Court approval subject to procedures of required to divest the following United States may apply to the Court for Antitrust Procedures and Penalties Act, 15 broadcast television stations (the a one-time extension of this Final U.S.C. § 16 ‘‘Divestiture Stations’’) to acquirers Judgment, together with other relief as lllllllllllllllllllll acceptable to the United States in its may be appropriate. In connection with United States District Judge sole discretion: (i) WQAD-TV, located in any successful effort by the United the Davenport, Iowa-Rock Island- States to enforce this Final Judgment UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Moline, Illinois, DMA; (ii) WOI-DT and against a Defendant, whether litigated or KCWI-TV, located in the Des Moines- resolved before litigation, that UNITED STATES OF AMERICA, STATE Ames, Iowa, DMA; (iii) KFSM-TV, Defendant agrees to reimburse the OF ILLINOIS, COMMONWEALTH OF PENNSYLVANIA, and COMMONWEALTH located in the Ft. Smith-Fayetteville- United States for the fees and expenses Springdale-Rogers, Arkansas, DMA; (iv) of its attorneys, as well as any other OF VIRGINIA, Plaintiffs, v. NEXSTAR MEDIA GROUP, INC. and TRIBUNE MEDIA WXMI, located in the Grand Rapids- costs, including experts’ fees, incurred COMPANY, Defendants. Kalamazoo-Battle Creek, Michigan, in connection with that enforcement Civil Action No. 1:19–cv–2295 (DLF) DMA; (v) WPMT, located in the effort, including in the investigation of Harrisburg-Lancaster-Lebanon-York, COMPETITIVE IMPACT the potential violation. Pennsylvania, DMA; (vi) WTIC-TV and D. For a period of four years following STATEMENT WCCT-TV, located in the Hartford-New the expiration of the Final Judgment, if The United States of America, under Haven, Connecticut, DMA; (vii) WZDX, the United States has evidence that a Section 2(b) of the Antitrust Procedures Defendant violated this Final Judgment and Penalties Act (‘‘APPA’’ or ‘‘Tunney 3 A DMA is a geographic unit for which A.C. before it expired, the United States may Act’’), 15 U.S.C. § 16(b)–(h), files this Nielsen Company—a firm that surveys television file an action against that Defendant in Competitive Impact Statement relating viewers—furnishes broadcast television stations, this Court requesting that the Court MVPDs, cable and satellite television networks, to the proposed Final Judgment advertisers, and advertising agencies in a particular order (1) Defendant to comply with the submitted for entry in this civil antitrust area with data to aid in evaluating audience size terms of this Final Judgment for an proceeding. and composition. DMAs are widely accepted by additional term of at least four years industry participants as the standard geographic following the filing of the enforcement I. NATURE AND PURPOSE OF THE areas to use in evaluating television audience size PROCEEDING and demographic composition. The Federal action under this Section, (2) any Communications Commission (‘‘FCC’’) also uses appropriate contempt remedies, (3) any On November 30, 2018, Defendant DMAs as geographic units with respect to its MVPD additional relief needed to ensure the Nexstar Media Group, Inc. (‘‘Nexstar’’) regulations.

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located in the Huntsville-Decatur- retransmission agreement is negotiated content were lost. Due to the limited Florence, Alabama, DMA; (viii) WNDY- directly between a broadcast station programming typically offered by non- TV and WISH-TV, located in the group, such as Nexstar or Tribune, and Big 4 stations, viewers are much less Indianapolis, Indiana, DMA; (ix) a given MVPD, and this agreement likely to switch to a non-Big 4 station WATN-TV and WLMT, located in the typically covers all of the station group’s than to switch to other Big 4 stations in Memphis, Tennessee, DMA; (x) WTKR stations located in the MVPD’s service the event of a blackout of a Big 4 station. and WGNT, located in the Norfolk- area, or ‘‘footprint.’’ Accordingly, competition from non-Big Portsmouth-Newport News, Virginia, Each broadcast station group typically 4 stations does not typically impose a DMA; (xi) WTVR-TV, located in the renegotiates retransmission agreements significant competitive constraint on the Richmond-Petersburg, Virginia, DMA; with the MVPDs every few years. If an retransmission consent fees charged by (xii) KSTU, located in the Salt Lake MVPD and a broadcast station group the owners of Big 4 stations. For the City, Utah, DMA; and (xiii) WNEP-TV, cannot agree on a retransmission same reasons, subscribers—and located in the Wilkes-Barre-Scranton, consent fee at the expiration of a therefore MVPDs—generally do not Pennsylvania, DMA. Under the terms of retransmission agreement, the result view cable network programming as a the Hold Separate, Defendants will take may be a ‘‘blackout’’ of the broadcast close substitute for Big 4 network certain steps to ensure that the group’s stations from the particular content. This is primarily because cable Divestiture Stations are operated as MVPD—i.e., an open-ended period channels offer different content. For competitively independent, during which the MVPD may not example, cable channels generally do economically viable, and ongoing distribute those stations to its not offer local news, which provides a business concerns, which will remain subscribers, until a new contract is valuable connection to the local independent and uninfluenced by the successfully negotiated. community that is important to viewers non-owner Defendant, and that 2. Relevant Markets of Big 4 stations. competition is maintained during the Because viewers do not regard non- pendency of the required divestitures. Big 4 broadcast content has special Big 4 broadcast stations or cable The United States and Defendants appeal to televisioan viewers in networks as close substitutes for the have stipulated that the proposed Final comparison to the content that is programming they receive from Big 4 Judgment may be entered after available through other broadcast stations, these other sources of compliance with the APPA. Entry of the stations and cable channels. Big 4 programming are not sufficient to proposed Final Judgment will terminate stations usually are the highest ranked discipline an increase in the fees this action, except that the Court will in terms of audience share and ratings charged for Big 4 television retain jurisdiction to construe, modify, in each DMA, largely because of unique retransmission consent. Accordingly, a or enforce the provisions of the offerings such as local news, sports, and small but significant increase in the proposed Final Judgment and to punish highly ranked primetime programs. retransmission consent fees of Big 4 violations thereof. Viewers typically consider the Big 4 affiliates would not cause enough stations to be close substitutes for one MVPDs to forego carrying the content of II. DESCRIPTION OF EVENTS another. Because of Big 4 stations’ the Big 4 stations to make such an GIVING RISE TO THE ALLEGED popular national content and valued increase unprofitable for the Big 4 VIOLATION local coverage, MVPDs regard Big 4 stations. A. The Defendants and the Proposed programming as highly desirable for The relevant geographic markets for Transaction inclusion in the packages they offer the licensing of Big 4 television subscribers. Non-Big 4 broadcast retransmission consent are the Nexstar is a Delaware corporation stations are typically not close individual DMAs in which such with its headquarters in Irving, Texas. substitutes for viewers of Big 4 stations. licensing occurs. The Complaint alleges Nexstar owns 171 television stations in Stations that are affiliates of networks a substantial reduction of competition 100 DMAs, of which 136 stations are Big other than the Big 4, such as the CW in the market for the licensing of Big 4 4 affiliates. In 2018, Nexstar reported Network, MyNetworkTV, or Telemundo, television retransmission consent in the revenues of $2.8 billion. typically feature niche programming following twelve DMAs: (i) Davenport, Tribune is a Delaware corporation without local news or sports—or, in the Iowa-Rock Island-Moline, Illinois; (ii) with its headquarters in Chicago, case of Telemundo, aimed at a Spanish- Des Moines-Ames, Iowa; (iii) Ft. Smith- Illinois. Tribune owns 44 television speaking audience. Stations that are Fayetteville-Springdale-Rogers, stations in 33 DMAs, of which 27 unaffiliated with any network are Arkansas; (iv) Grand Rapids-Kalamazoo- stations are Big 4 affiliates. In 2018, similarly unlikely to carry programming Battle Creek, Michigan; (v) Harrisburg- Tribune earned revenues of more than with broad popular appeal. Lancaster-Lebanon-York, Pennsylvania; $2.0 billion. If an MVPD suffers a blackout of a Big (vi) Hartford-New Haven, Connecticut; B. Big 4 Television Retransmission 4 station in a given DMA, many of the (vii) Huntsville-Decatur-Florence, Consent MVPD’s subscribers in that DMA are Alabama; (viii) Memphis, Tennessee; likely to turn to other Big 4 stations in (ix) Norfolk-Portsmouth-Newport News, 1. Background the DMA to watch similar content, such Virginia; (x) Richmond-Petersburg, MVPDs, such as Comcast, DirecTV, as sports, primetime shows, and local Virginia; (xi) Salt Lake City, Utah; and and Charter, typically pay the owner of news and weather. This willingness of (xii) Wilkes Barre-Scranton, each local Big 4 broadcast station in a viewers to switch between competing Pennsylvania (collectively, ‘‘the Big 4 given DMA a per-subscriber fee for the Big 4 broadcast stations limits an Overlap DMAs’’). right to retransmit the station’s content MVPD’s expected losses in the case of In the event of a blackout of a Big 4 to the MVPD’s subscribers. The per- a blackout, and thus limits a network station, FCC rules generally subscriber fee and other terms under broadcaster’s ability to extract higher prohibit an MVPD from importing the which an MVPD is permitted to fees from that MVPD—since an MVPD’s same network’s content from another distribute a station’s content to its willingness to pay higher retransmission DMA. Thus, Big 4 viewers in one DMA subscribers are set forth in a consent fees for content rises or falls cannot switch to Big 4 programming in retransmission agreement. A with the harm it would suffer if that another DMA in the face of a blackout.

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Therefore, substitution to stations one Big 4 affiliate broadcast television DMA. The chart below summarizes the outside the DMA cannot discipline an station. By combining the Defendants’ Defendants’ approximate Big 4 increase in the fees charged for Big 4 stations, the proposed merger retransmission consent market shares, retransmission consent for broadcast would increase the Defendants’ market and market concentrations measured by stations in the DMA. shares in the licensing of Big 4 the widely used Herfindahl-Hirschman television retransmission consent in 4 3. Anticompetitive Effects Index (‘‘HHI’’) , in each Big 4 Overlap each Big 4 Overlap DMA, and would DMA, before and after the proposed In each of the Big 4 Overlap DMAs, increase the market concentration in merger. Nexstar and Tribune each own at least that business in each Big 4 Overlap

Big 4 Nexstar share Tribune share Merged share Pre-merger Post-merger HHI increase overlap DMA 5 (%) (%) (%) HHI HHI

Wilkes Barre, PA ...... 54.0 24.7 78.7 3981 6645 2664 Ft. Smith, AR ...... 63.4 15.0 78.4 4708 6613 1906 Norfolk, VA ...... 56.0 21.1 77.1 4104 6465 2361 Grand Rapids, MI ...... 43.4 16.3 59.7 2974 4391 1417 Hartford, CT ...... 33.5 25.4 58.9 2636 4338 1702 Memphis, TN ...... 38.4 17.6 56.1 2762 4118 1356 Davenport, IA ...... 36.8 14.9 51.6 2744 3838 1094 Des Moines, IA ...... 34.5 13.9 48.4 2798 3756 958 Huntsville, AL ...... 32.5 16.6 49.1 2630 3710 1080 Salt Lake City, UT ...... 32.1 15.5 47.5 2691 3683 992 Harrisburg, PA ...... 25.3 22.1 47.4 2553 3670 1117 Richmond, VA ...... 28.0 16.9 44.9 2672 3617 945

As indicated by the preceding chart, broadcast television station is located. stations offer popular programming in each Big 4 Overlap DMA the post- Broadcast television spot advertising is such as local news, sports, and merger HHI would exceed 2,500 and the distinguished from ‘‘network’’ primetime and syndicated shows that merger would increase the HHI by more advertising, which consists of are especially attractive to a broad than 200 points. As a result, the advertising time slots sold on demographic base and a large audience proposed merger is presumed likely to nationwide broadcast networks by those of viewers. Other categories of enhance market power under the networks, and not by local broadcast advertising may offer different Horizontal Merger Guidelines issued by stations or their representatives. Nexstar characteristics, making them potential the Department of Justice and the and Tribune compete with one another complements to broadcast television Federal Trade Commission. to sell broadcast television spot advertising, but not close substitutes. The proposed merger would enable advertising in each DMA in which both For example, ads associated with online Nexstar to black out more Big 4 stations Defendants have stations. search results target individual simultaneously in each of the Big 4 2. Relevant Markets consumers or respond to specific Overlap DMAs than either Nexstar or keyword searches, whereas broadcast Broadcast television spot advertising, Tribune could black out independently television advertising reaches a broad including spot advertising on both Big today, likely leading to increased audience throughout a DMA. 4 and non-Big 4 broadcast stations, retransmission consent fees to any Technological developments may bring MVPD whose footprint includes any of constitutes a relevant product market and line of commerce under Section 7 various advertising categories into the Big 4 Overlap DMAs. closer competition with each other. For Retransmission consent fees generally of the Clayton Act. Advertisers’ inability or unwillingness to substitute to other example, broadcasters and cable are passed through to an MVPD’s networks are developing technology to subscribers in the form of higher types of advertising in response to a price increase in broadcast television make their spot advertising addressable, subscription fees or as a line item on meaning that broadcasters could deliver their bills. spot advertising supports this relevant market definition. targeted advertising in live broadcast C. Broadcast Television Spot Typically, an advertiser purchases and on-demand formats to smart Advertising broadcast television advertising spots as televisions or streaming devices. For certain advertisers, these technological 1. Background one component of an advertising strategy that may also include cable changes may make other categories of Broadcast television stations, spots, newspaper advertisements, advertising closer substitutes for including both Big 4 broadcast stations billboards, radio spots, digital advertising on broadcast television in and non-Big 4 stations in the Overlap advertisements, email advertisements, the future. However, at this time, for DMAs, sell advertising ‘‘spots’’ during and direct mail. Different components of many broadcast television spot breaks in their programming. an advertising strategy generally target advertising advertisers, these projected Advertisers purchase spots from a different audiences and serve distinct developments are insufficient to broadcast station to communicate with purposes. Advertisers that advertise on mitigate the effects of the merger in the viewers within the DMA in which the broadcast stations do so because the Overlap DMAs.

4 The HHI is calculated by squaring the market the relative size distribution of the firms in a the market decreases and as the disparity in size share of each firm competing in the market and market. It approaches zero when a market is between those firms increases. then summing the resulting numbers. For example, occupied by a large number of firms of relatively 5 In this chart and the one below, sums that do for a market consisting of four firms with shares of equal size, and reaches its maximum of 10,000 not agree precisely reflect rounding. 30, 30, 20, and 20 percent, the HHI is 2,600 (302+ points when a market is controlled by a single firm. 302+ 202+ 202= 2,600). The HHI takes into account The HHI increases both as the number of firms in

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MVPDs sell spot advertising to be spot advertising, at this time. Because of output or increase sales sufficiently to shown during breaks in cable network these limitations, MVPDs and defeat a small but significant increase in programming. For viewers, these interconnects would be unable to the prices charged for broadcast advertisements are similar to broadcast expand output or increase sales television spot advertising in a given ads. That, however, does not mean that sufficiently to defeat a small but DMA. cable television spot advertising should significant increase in the prices Other forms of advertising, such as be included in the product market. For charged for broadcast television spot radio, newspaper, billboard, and direct- the following reasons, cable television advertising in a given DMA. mail advertising, also do not constitute spot advertising is at this time a Digital advertising is not a sufficiently effective substitutes for broadcast relatively ineffective substitute for close substitute for broadcast television television spot advertising. These forms broadcast television spot advertising for spot advertising. Some digital of media do not reach as many local most advertisers. First, broadcast advertising, such as static and floating viewers or drive brand awareness to the television spot advertising is a more banner advertisements, static images, same extent as broadcast television efficient option than cable television text advertisements, wallpaper does. Broadcast television spot spot advertising for many advertisers. advertisements, pop-up advertisements, advertising possesses a unique Because broadcast television offers flash advertisements, and paid search combination of attributes that highly rated programming with broad results, lacks the combination of sight, advertisers value in a way that sets it appeal, each broadcast television sound, and motion that makes television apart from advertising on other media. Broadcast television spot advertising advertising spot typically offers the spot advertising particularly impactful combines sight, sound, and motion in a opportunity to reach more viewers and memorable, and therefore effective way that makes television (more ‘‘ratings points’’) than a single for advertisers. Digital video advertisements particularly memorable spot on a cable channel. By contrast, advertisements, on the other hand, do and impactful. For all of these reasons, MVPDs offer dozens of cable channels allow for a combination of sight, sound, advertisers likely would not respond to with specialized programs that appeal to and motion, and on this basis are more a small but significant non-transitory niche audiences. This fragmentation comparable to broadcast television spot increase in the price of broadcast allows advertisers to target narrower advertising than other types of digital television spot advertising by switching advertising, but are still not close demographic subsets by buying cable to other forms of advertising—such as spots on particular channels, but it does substitutes for broadcast television spot cable, digital, print, radio, or billboard not meet the needs of advertisers who advertising for the reasons stated below. advertising—in sufficiently large want to reach a large percentage of a First, digital advertisements typically numbers to make the price increase DMA’s population. Second, households reach a different audience than unprofitable. that have access to cable networks are broadcast television spot advertising. While cable spot or digital advertising divided among multiple MVPDs within Whereas advertisers use broadcast may constrain broadcast television spot a DMA. In some DMAs, MVPDs sell television spots to reach a large advertising prices in the future, it does some spot advertising through consortia percentage of households in a DMA, not do so today. On a cost-per-point called ‘‘interconnects.’’ Sometimes these advertisers use digital advertising to basis (cost to reach one percent of a interconnects include all of the largest reach a variety of different audiences. relevant target population), over the last MVPDs in a DMA, approaching but not While a small portion of advertisers few years broadcast television spot matching broadcast stations’ reach. But purchase DMA-wide advertisements on advertising prices have generally in other, especially smaller DMAs, the digital platforms, digital advertisements remained steady or increased. If cable interconnect only contains a subset of usually are targeted either very broadly, spot or digital advertising was a close MVPDs, which reduces the reach of the such as nationwide or regional, or to a and robust competitor to broadcast interconnect’s advertisements. In smaller geographic target, such as a city television spot advertising, then, all else contrast, broadcast television spot or a zip code, or to narrow demographic being equal, this competition from cable advertising reaches all households that subsets of a population. Second, spot or digital advertising would place subscribe to an MVPD and, through an inventory of ad-supported, high-quality, downward pressure on broadcast over-the-air signal, most households long-form video on the internet is television spot advertising pricing. But with a television that do not. Finally, limited. Advertisers see value to they have not had this effect. MVPDs’ inventory of cable television advertising on video that is watched by The differentiation between broadcast spot advertising is limited—typically to the audience they seek to target. High- television spot advertising and cable two minutes per hour—contrasting quality, long-form video is the most spot and digital advertising bears out in sharply with broadcast stations’ much similar content to broadcast television negotiations between broadcasters and larger number of minutes per hour. The programming available on the internet. advertisers. Advertisers usually will put inventory of DMA-wide cable television The most popular high-quality, long- an advertising buy out to bid to many spot advertising is substantially further form video available on the internet is or all broadcast stations in a DMA, and reduced by the large portion of those provided through ad-free subscription will not include MVPDs or digital spots allocated to local zone advertising, services (like Netflix or Amazon Prime), advertisers in that same bid. In in which an MVPD sells spots by over-the-top MVPDs that sell cable negotiations with broadcast stations, geographic zones within a DMA, television spot advertisements (like advertisers regularly discuss offered allowing advertisers to target smaller Sling and YouTube TV), or sold directly prices and opportunities from other geographic areas. Due to the limited by the networks on their own network broadcast stations in the same DMA to inventories and lower ratings associated sites. The remaining inventory of digital try to bargain down price, but they with cable television spot programming, advertisements attached to high-quality, rarely discuss price offers or cable television spot advertisements long-form video on the internet, which opportunities from MVPDs or digital cannot offer a sufficient volume of is primarily sold by digital advertising advertisers in those negotiations. When ratings points, or broad enough platforms, is small today. Because of a broadcaster salesperson internally household penetration, to provide a these limitations, digital video analyzes the station’s performance on viable alternative to broadcast television advertising would be unable to expand any particular buy, the salesperson

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typically looks at the percentage of the Similarly, the national sales (viii) Indianapolis, Indiana; (ix) buy that was allocated to each broadcast representation firms regularly report to Memphis, Tennessee; (x) Norfolk- station, adding up to 100% of the buy. broadcast stations about competition Portsmouth-Newport News, Virginia; The salesperson typically does not from representatives for other (xi) Richmond-Petersburg, Virginia; (xii) consider any allocation of an broadcasters in the same DMA, but Salt Lake City, Utah; and (xiii) Wilkes- advertiser’s spending on cable or digital rarely report on competition from Barre-Scranton, Pennsylvania advertising. Likewise, if an advertiser representatives for cable or digital (collectively, ‘‘the Overlap DMAs’’). For reports to a broadcaster salesperson the platforms. Many broadcasters use a an advertiser seeking to reach potential percentage of a buy that the broadcaster third-party data analysis service to help customers in a given DMA, broadcast received, the advertiser typically reports set their spot advertising rate cards; that television stations located outside of the the broadcaster’s percentage of the service uses market share estimates from DMA do not provide effective access to amount awarded to all broadcast other broadcasters as input data to the advertiser’s target audience. The stations in the DMA, but does not generate the rate cards, but does not use signals of broadcast television stations include any amount spent on cable or market share estimates from cable or located outside of the DMA generally do digital advertising. digital advertising platforms. not reach any significant portion of the Internally, broadcasters make most of The relevant geographic markets for target DMA through either over-the-air their competitor comparisons against the sale of broadcast television spot signal or MVPD distribution. other broadcasters in the same DMA, advertising are the individual DMAs in Accordingly, a small but significant not against MVPDs in that DMA or which such advertising is viewed. The increase in the spot advertising prices of digital advertisers. When reporting to Complaint alleges a substantial stations broadcasting into the DMA their station managers and corporate reduction of competition in the market would not cause a sufficient number of headquarters, broadcast station sales for sale of broadcast television spot advertisers to switch to stations outside executives regularly report on their advertising in the following thirteen the DMA to make such an increase performance vis-a`-vis other broadcast DMAs: (i) Davenport, Iowa-Rock Island- unprofitable for the stations. stations in the DMA; they rarely report Moline, Illinois; (ii) Des Moines-Ames, 3. Anticompetitive Effects on their performance against cable or Iowa; (iii) Ft. Smith-Fayetteville- digital platforms. When looking for new Springdale-Rogers, Arkansas; (iv) Grand The chart below summarizes business, broadcast stations use third- Rapids-Kalamazoo-Battle Creek, Defendants’ approximate market shares party services to identify advertisers Michigan; (v) Harrisburg-Lancaster- and the result of the transaction on the advertising on those other broadcast Lebanon-York, Pennsylvania; (vi) HHIs in the sale of broadcast television stations, but do not subscribe to similar Hartford-New Haven, Connecticut; (vii) spot advertising in each of the Overlap services for cable or digital advertising. Huntsville-Decatur-Florence, Alabama; DMAs.

Nexstar share Tribune share Merged share Pre-merger Post-merger Overlap DMA (%) (%) (%) HHI HHI HHI increase

Wilkes Barre, PA ...... 35.8 47.6 83.4 3749 7161 3412 Norfolk, VA ...... 44.0 31.4 75.4 3277 6038 2761 Ft. Smith, AR ...... 29.1 41.3 70.3 3361 5761 2400 Davenport, IA ...... 27.0 27.1 54.2 3568 5035 1467 Grand Rapids, MI ...... 36.0 19.0 55.0 2700 4065 1365 Des Moines, IA ...... 11.2 34.6 45.8 3235 4009 774 Richmond, VA ...... 20.9 29.9 50.8 2733 3981 1248 Huntsville, AL ...... 13.9 33.0 46.9 2786 3704 918 Memphis, TN ...... 14.5 33.3 47.9 2558 3527 969 Harrisburg, PA ...... 21.8 20.8 42.5 2524 3427 903 Indianapolis, IN ...... 13.1 31.0 44.2 2577 3393 815 Hartford, CT ...... 22.7 20.6 43.3 2306 3240 934 Salt Lake City, UT ...... 16.0 24.1 40.0 2329 3098 769

Defendants’ large market shares reflect broadcast television stations, which are avoid the first station’s price increase, or the fact that, in each Overlap DMA, close substitutes and generally vigorous to pressure the first station to lower its Nexstar and Tribune each own one or competitors in the sale of broadcast prices. more significant broadcast stations television spot advertising. If Nexstar acquires Tribune’s stations, As indicated by the preceding chart, In each Overlap DMA, Defendants’ advertisers seeking to reach audiences the post-merger HHI in each Overlap broadcast stations compete head-to-head in the Overlap DMAs would have fewer DMA is well above 2,500, and the HHI in the sale of broadcast television spot competing broadcast television increase in each Overlap DMA far advertising. Advertisers obtain lower alternatives available to meet their exceeds the 200-point threshold above prices as a result of this competition. In advertising needs, and would find it which a transaction is presumed to particular, advertisers in the Overlap more difficult and costly to buy around enhance market power and harm DMAs can respond to an increase in one higher prices imposed by the combined competition. Defendants’ proposed station’s spot advertising prices by stations. This would likely result in transaction is thus presumptively purchasing, or threatening to purchase, increased advertising prices, lower unlawful in each Overlap DMA. In advertising spots on one or more quality local programming to which the addition to substantially increasing the stations owned by different broadcast spot advertising is attached (for concentration levels in each Overlap station groups—‘‘buying around’’ the example, less investment in local news), DMA, the proposed merger would station that raises its prices. This and less innovation in providing combine Nexstar’s and Tribune’s practice allows the advertisers either to advertising solutions to advertisers.

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D. Entry spectrum is limited and the regulatory the loss of competition alleged in the process associated with obtaining a Complaint by maintaining the Entry of a new broadcast station into license is lengthy. Even if a new signal Divestiture Stations as independent and an Overlap DMA would not be timely, were to become available, commercial economically viable competitors. The likely, or sufficient to prevent or remedy success would come over a period of proposed Final Judgment requires the proposed merger’s likely many years, if at all. Nexstar, within thirty days after the anticompetitive effects in the relevant entry of the Hold Separate by the Court, III. EXPLANATION OF THE markets. The FCC regulates entry to divest the station or stations owned PROPOSED FINAL JUDGMENT through the issuance of broadcast by either Nexstar or Tribune in each of television licenses, which are difficult The divestitures required by the the Overlap DMAs, as shown in the to obtain because the availability of proposed Final Judgment will remedy following chart:

Primary Overlap DMA Divestiture stations affiliations of Current owner of divestiture stations divestiture stations

Wilkes Barre, PA ...... WNEP-TV ...... ABC ...... Tribune. 6 Norfolk, VA ...... WTKR and WGNT ...... CBS/CW ...... Tribune. 7 Ft. Smith, AR ...... KFSM-TV ...... CBS ...... Tribune. Davenport, IA ...... WQAD-TV ...... ABC ...... Tribune. Grand Rapids, MI ...... WXMI ...... FOX ...... Tribune. Des Moines, IA ...... WOI-DT and KCWI-TV ...... ABC/CW ...... Nexstar. Richmond, VA ...... WTVR-TV ...... CBS ...... Tribune. Huntsville, AL ...... WZDX ...... FOX ...... Nexstar. Memphis, TN ...... WATN-TV and WLMT ...... ABC/CW ...... Nexstar. Harrisburg, PA ...... WPMT ...... FOX ...... Tribune. Indianapolis, IN ...... WNDY-TV and WISH-TV ...... MyNetworkTV/CW ...... Nexstar. Hartford, CT ...... WTIC-TV and WCCT-TV ...... FOX/CW ...... Tribune. Salt Lake City, UT ...... KSTU ...... FOX ...... Tribune.

The Divestiture Stations must be of Big 4 network content to MVPDs for Circle City Broadcasting I, Inc.; The divested in such a way as to satisfy the distribution to their subscribers (except E.W. Scripps Company; and TEGNA United States in its sole discretion that as to the Indianapolis DMA), and (2) the Inc. (respectively, together with their the Divestiture Stations can and will be sale of broadcast television spot subsidiaries and affiliated entities and operated by each purchaser as part of a advertising to advertisers interested in individuals, ‘‘Circle City,’’ ‘‘Scripps,’’ viable, ongoing commercial television reaching viewers in the DMA. The and ‘‘TEGNA’’). The following table sets broadcasting business with the intent United States has determined that the out the proposed purchaser for each and capability to compete effectively in following companies are acceptable Divestiture Station. the applicable DMA in (1) the licensing purchasers of Divestiture Stations:

Proposed Overlap DMA Divestiture stations purchaser

Wilkes Barre, PA ...... WNEP-TV ...... TEGNA. Norfolk, VA ...... WTKR and WGNT ...... Scripps. Ft. Smith, AR ...... KFSM-TV ...... TEGNA. Davenport, IA ...... WQAD-TV ...... TEGNA. Grand Rapids, MI ...... WXMI ...... Scripps. Des Moines, IA ...... WOI-DT and KCWI-TV ...... TEGNA. Richmond, VA ...... WTVR-TV ...... Scripps. Huntsville, AL ...... WZDX ...... TEGNA. Memphis, TN ...... WATN-TV and WLMT ...... TEGNA. Harrisburg, PA ...... WPMT ...... TEGNA. Indianapolis, IN ...... WNDY-TV and WISH-TV ...... Circle City. Hartford, CT ...... WTIC-TV and WCCT-TV ...... TEGNA. Salt Lake City, UT ...... KSTU ...... Scripps.

Defendants must take all reasonable independently, Paragraph IV(H) of the sole discretion, with exceptions steps necessary to accomplish the proposed Final Judgment requires regarding Tribune proprietary software divestiture quickly and must cooperate Defendants, at each acquirer’s option, to and master control and hubbing services with the purchasers. enter into a transition services and distribution services, which can be To facilitate the immediate and agreement. After an initial period of six extended for up to an additional continuous operations of the relevant months, a transition services agreement eighteen months, subject to the United Divestiture Stations until the acquirer may be extended by an additional six States’ sole discretion. can provide such capabilities months, subject to the United States’

6 WNEP-TV is currently owned by Dreamcatcher 7 WTKR and WGNT are currently owned by Broadcasting LLC; however, Tribune will exercise Dreamcatcher Broadcasting LLC; however, Tribune its option to acquire the station prior to the will exercise its option to acquire the stations prior divestiture. to the divestiture.

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If Defendants do not accomplish the in reasonable detail, as interpreted in recover three times the damages the divestiture within the period prescribed light of this procompetitive purpose. person has suffered, as well as costs and in the proposed Final Judgment, the Paragraph XIII(C) of the proposed reasonable attorneys’ fees. Entry of the proposed Final Judgment provides that Final Judgment provides that if the proposed Final Judgment neither the Court will appoint a divestiture Court finds in an enforcement impairs nor assists the bringing of any trustee selected by the United States to proceeding that Defendants have private antitrust damage action. Under effect the divestiture. If a divestiture violated the Final Judgment, the United the provisions of Section 5(a) of the trustee is appointed, the proposed Final States may apply to the Court for a one- Clayton Act, 15 U.S.C. § 16(a), the Judgment provides that Defendants will time extension of the Final Judgment, proposed Final Judgment has no prima pay all costs and expenses of the trustee. together with such other relief as may be facie effect in any subsequent private The divestiture trustee’s commission appropriate. In addition, to compensate lawsuit that may be brought against will be structured so as to provide an American taxpayers for any costs Defendants. incentive for the trustee based on the associated with investigating and price obtained and the speed with enforcing violations of the proposed V. PROCEDURES AVAILABLE FOR which the divestiture is accomplished. Final Judgment, Paragraph XIII(C) MODIFICATION OF THE After the divestiture trustee’s provides that in any successful effort by PROPOSED FINAL JUDGMENT the United States to enforce the Final appointment becomes effective, the The United States and Defendants Judgment against a Defendant, whether trustee will provide monthly reports to have stipulated that the proposed Final litigated or resolved before litigation, the United States and the Plaintiff States Judgment may be entered by the Court that Defendants will reimburse the setting forth his or her efforts to after compliance with the provisions of United States for attorneys’ fees, accomplish the divestiture. At the end the APPA, provided that the United experts’ fees, and other costs incurred in of six months, if the divestiture has not States has not withdrawn its consent. been accomplished, the divestiture connection with any enforcement effort, The APPA conditions entry upon the trustee and the United States will make including the investigation of the Court’s determination that the proposed recommendations to the Court, which potential violation. Final Judgment is in the public interest. will enter such orders as appropriate, in Paragraph XIII(D) states that the order to carry out the purpose of the United States may file an action against The APPA provides a period of at trust, including by extending the trust or a Defendant for violating the Final least 60 days preceding the effective the term of the divestiture trustee’s Judgment for up to four years after the date of the proposed Final Judgment appointment. Final Judgment has expired or been within which any person may submit to The proposed Final Judgment also terminated. This provision is meant to the United States written comments contains provisions designed to promote address circumstances such as when regarding the proposed Final Judgment. compliance and make the enforcement evidence that a violation of the Final Any person who wishes to comment of the Final Judgment as effective as Judgment occurred during the term of should do so within 60 days of the date possible. Paragraph XIII(A) provides the Final Judgment is not discovered of publication of this Competitive that the United States retains and until after the Final Judgment has Impact Statement in the Federal reserves all rights to enforce the expired or been terminated or when Register, or the last date of publication provisions of the proposed Final there is not sufficient time for the in a newspaper of the summary of this Judgment, including its rights to seek an United States to complete an Competitive Impact Statement, order of contempt from the Court. Under investigation of an alleged violation whichever is later. All comments the terms of this paragraph, Defendants until after the Final Judgment has received during this period will be have agreed that in any civil contempt expired or been terminated. This considered by the U.S. Department of action, any motion to show cause, or provision, therefore, makes clear that, Justice, which remains free to withdraw any similar action brought by the United for four years after the Final Judgment its consent to the proposed Final States regarding an alleged violation of has expired or been terminated, the Judgment at any time before the Court’s the Final Judgment, the United States United States may still challenge a entry of the Final Judgment. The may establish the violation and the violation that occurred during the term comments and the response of the appropriateness of any remedy by a of the Final Judgment. United States will be filed with the preponderance of the evidence and that Finally, Section XIV of the proposed Court. In addition, comments will be Defendants have waived any argument Final Judgment provides that the Final posted on the U.S. Department of that a different standard of proof should Judgment will expire ten years from the Justice, Antitrust Division’s internet apply. This provision aligns the date of its entry, except that after five website and, under certain standard for compliance obligations years from the date of its entry, the Final circumstances, published in the Federal with the standard of proof that applies Judgment may be terminated upon Register. to the underlying offense that the notice by the United States, after Written comments should be compliance commitments address. consultation with the Plaintiff States, to submitted to: Owen M. Kendler, Chief, Paragraph XIII(B) provides additional the Court and Defendants that the Media, Entertainment, & Professional clarification regarding the interpretation divestiture has been completed and that Services Section, Antitrust Division, of the provisions of the proposed Final the continuation of the Final Judgment United States Department of Justice, 450 Judgment. The proposed Final Judgment is no longer necessary or in the public Fifth Street, NW, Suite 4000, was drafted to restore all competition interest. that the Complaint alleges would Washington, DC 20530 otherwise be harmed by the transaction. IV. REMEDIES AVAILABLE TO The proposed Final Judgment Defendants agree that they will abide by POTENTIAL PRIVATE LITIGANTS provides that the Court retains the proposed Final Judgment, and that Section 4 of the Clayton Act, 15 jurisdiction over this action, and the they may be held in contempt of this U.S.C. § 15, provides that any person Parties may apply to the Court for any Court for failing to comply with any who has been injured as a result of order necessary or appropriate for the provision of the proposed Final conduct prohibited by the antitrust laws modification, interpretation, or Judgment that is stated specifically and may bring suit in federal court to enforcement of the Final Judgment.

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VI. ALTERNATIVES TO THE ‘‘broad discretion to settle with the The United States’ predictions about PROPOSED FINAL JUDGMENT defendant within the reaches of the the efficacy of the remedy are to be As an alternative to the proposed public interest.’’ United States v. afforded deference by the Court. See, Final Judgment, the United States Microsoft Corp., 56 F.3d 1448, 1461 e.g., Microsoft, 56 F.3d at 1461 considered a full trial on the merits (D.C. Cir. 1995); United States v. U.S. (recognizing courts should give ‘‘due against Defendants. The United States Airways Grp., Inc., 38 F. Supp. 3d 69, respect to the Justice Department’s . . . could have continued the litigation and 75 (D.D.C. 2014) (explaining that the view of the nature of its case’’); United sought preliminary and permanent ‘‘court’s inquiry is limited’’ in Tunney States v. Iron Mountain, Inc., 217 F. injunctions against Nexstar’s acquisition Act settlements); United States v. InBev Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In of Tribune. The United States is N.V./S.A., No. 08-1965 (JR), 2009 U.S. evaluating objections to settlement satisfied, however, that the divestiture Dist. LEXIS 84787, at *3 (D.D.C. Aug. agreements under the Tunney Act, a 11, 2009) (noting that a court’s review of assets described in the proposed court must be mindful that [t]he of a consent judgment is limited and Final Judgment will preserve government need not prove that the only inquires ‘‘into whether the competition for (1) the provision of the settlements will perfectly remedy the government’s determination that the licensing of Big 4 network content to alleged antitrust harms[;] it need only proposed remedies will cure the MVPDs for distribution to their provide a factual basis for concluding antitrust violations alleged in the subscribers in each of the Big 4 Overlap that the settlements are reasonably complaint was reasonable, and whether DMAs, and (2) the sale of broadcast adequate remedies for the alleged the mechanism to enforce the final television spot advertising to advertisers harms.’’) (internal citations omitted); judgment are clear and manageable’’). United States v. Republic Servs., Inc., interested in reaching viewers in each of As the U.S. Court of Appeals for the the Overlap DMAs. Thus, the proposed 723 F. Supp. 2d 157, 160 (D.D.C. 2010) District of Columbia Circuit has held, (noting ‘‘the deferential review to which Final Judgment achieves all or under the APPA a court considers, substantially all of the relief the United the government’s proposed remedy is among other things, the relationship accorded’’); United States v. Archer- States would have obtained through between the remedy secured and the litigation, but avoids the time, expense, Daniels-Midland Co., 272 F. Supp. 2d 1, specific allegations in the government’s 6 (D.D.C. 2003) (‘‘A district court must and uncertainty of a full trial on the complaint, whether the proposed Final merits of the Complaint. accord due respect to the government’s Judgment is sufficiently clear, whether prediction as to the effect of proposed VII. STANDARD OF REVIEW its enforcement mechanisms are remedies, its perception of the market UNDER THE APPA FOR THE sufficient, and whether it may positively structure, and its view of the nature of PROPOSED FINAL JUDGMENT harm third parties. See Microsoft, 56 the case’’). The ultimate question is F.3d at 1458–62. With respect to the The Clayton Act, as amended by the whether ‘‘the remedies [obtained by the adequacy of the relief secured by the APPA, requires that proposed consent Final Judgment are] so inconsonant with proposed Final Judgment, a court may judgments in antitrust cases brought by the allegations charged as to fall outside not ‘‘engage in an unrestricted the United States be subject to a 60-day of the ‘’’reaches of the public interest.’ ’’ evaluation of what relief would best comment period, after which the Court Microsoft, 56 F.3d at 1461 (quoting serve the public.’’ United States v. BNS, shall determine whether entry of the United States v. Western Elec. Co., 900 Inc., 858 F.2d 456, 462 (9th Cir. 1988) proposed Final Judgment ‘‘is in the F.2d 283, 309 (D.C. Cir. 1990)). (quoting United States v. Bechtel Corp., public interest.’’ 15 U.S.C. § 16(e)(1). In Moreover, the Court’s role under the 648 F.2d 660, 666 (9th Cir. 1981)); see making that determination, the Court, in APPA is limited to reviewing the also Microsoft, 56 F.3d at 1460–62; accordance with the statute as amended remedy in relationship to the violations United States v. Alcoa, Inc., 152 F. in 2004, is required to consider: that the United States has alleged in its Supp. 2d 37, 40 (D.D.C. 2001); InBev, (A) the competitive impact of such complaint, and does not authorize the 2009 U.S. Dist. LEXIS 84787, at *3. judgment, including termination of Court to ‘‘construct [its] own Instead: alleged violations, provisions for hypothetical case and then evaluate the enforcement and modification, duration [t]he balancing of competing social and decree against that case.’’ Microsoft, 56 of relief sought, anticipated effects of political interests affected by a proposed F.3d at 1459; see also U.S. Airways, 38 alternative remedies actually antitrust consent decree must be left, in F. Supp. 3d at 75 (noting that the court considered, whether its terms are the first instance, to the discretion of the must simply determine whether there is ambiguous, and any other competitive Attorney General. The court’s role in a factual foundation for the considerations bearing upon the protecting the public interest is one of government’s decisions such that its adequacy of such judgment that the insuring that the government has not conclusions regarding the proposed court deems necessary to a breached its duty to the public in settlements are reasonable); InBev, 2009 determination of whether the consent consenting to the decree. The court is U.S. Dist. LEXIS 84787, at *20 (‘‘the judgment is in the public interest; and required to determine not whether a ‘public interest’ is not to be measured by (B) the impact of entry of such particular decree is the one that will comparing the violations alleged in the judgment upon competition in the best serve society, but whether the complaint against those the court relevant market or markets, upon the settlement is ‘‘within the reaches of the believes could have, or even should public generally and individuals public interest.’’ More elaborate have, been alleged’’). Because the alleging specific injury from the requirements might undermine the ‘‘court’s authority to review the decree violations set forth in the complaint effectiveness of antitrust enforcement by depends entirely on the government’s including consideration of the public consent decree. exercising its prosecutorial discretion by benefit, if any, to be derived from a Bechtel, 648 F.2d at 666 (emphasis bringing a case in the first place,’’ it determination of the issues at trial. added) (citations omitted).8 follows that ‘‘the court is only 15 U.S.C. § 16(e)(1)(A) & (B). In 8 See also BNS, 858 F.2d at 464 (holding that the 713, 716 (D. Mass. 1975) (noting that, in this way, considering these statutory factors, the court’s ‘‘ultimate authority under the [APPA] is the court is constrained to ‘‘look at the overall Court’s inquiry is necessarily a limited limited to approving or disapproving the consent picture not hypercritically, nor with a microscope, one as the government is entitled to decree’’); United States v. Gillette Co., 406 F. Supp. but with an artist’s reducing glass’’).

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authorized to review the decree itself,’’ DEPARTMENT OF LABOR and reports of such hygienists and and not to ‘‘effectively redraft the physicians to ensure quality, objectivity, complaint’’ to inquire into other matters Office of Workers’ Compensation and consistency. The Advisory Board that the United States did not pursue. Programs sunsets on December 19, 2024. Microsoft, 56 F.3d at 1459–60. The Advisory Board operates in Advisory Board on Toxic Substances accordance with the Federal Advisory In its 2004 amendments to the and Worker Health Committee Act (FACA) (5 U.S.C. App. APPA, Congress made clear its intent 2) and its implementing regulations (41 to preserve the practical benefits of AGENCY: Office of Workers’ CFR part 102–3). using consent judgments proposed by Compensation Programs, Department of Agenda: The tentative agenda for the the United States in antitrust Labor. ACTION: Announcement of telephonic Advisory Board meeting includes: enforcement, Pub. L. 108-237 § 221, and • meeting of the Advisory Board on Toxic Discuss any recommendation added the unambiguous instruction that responses provided by the program and ‘‘[n]othing in this section shall be Substances and Worker Health (Advisory Board) for the Energy status of outstanding recommendations; construed to require the court to • Employees Occupational Illness Discuss data provided by the conduct an evidentiary hearing or to Compensation Program Act (EEOICPA). program at the request of the Board; require the court to permit anyone to • Discuss cases provided by the intervene.’’ 15 U.S.C. § 16(e)(2); see also SUMMARY: The Advisory Board will meet program at the request of the Board; U.S. Airways, 38 F. Supp. 3d at 76 September 4, 2019, via teleconference, • Discuss recent program changes; (indicating that a court is not required from 1:00 p.m. to 4:00 p.m. Eastern and to hold an evidentiary hearing or to time. • Administrative issues raised by permit intervenors as part of its review Submissions of comments and Advisory Board functions and future under the Tunney Act). This language materials for the record, and requests for Advisory Board activities. explicitly wrote into the statute what special accommodations: You must OWCP transcribes and prepares Congress intended when it first nacted submit (postmark, send, transmit) detailed minutes of Advisory Board the Tunney Act in 1974. As Senator comments, materials, and requests for meetings. OWCP will post the Tunney explained: ‘‘[t]he court is special accommodations for the transcripts and minutes on the Advisory nowhere compelled to go to trial or to meetings by August 28, 2019. Board web page, http://www.dol.gov/ engage in extended proceedings which FOR FURTHER INFORMATION CONTACT: For owcp/energy/regs/compliance/ might have the effect of vitiating the press inquiries: Ms. Laura McGinnis, AdvisoryBoard.htm, along with written benefits of prompt and less costly Office of Public Affairs, U.S. comments, speaker presentations, and settlement through the consent decree Department of Labor, Room S–1028, 200 other materials submitted to the process.’’ 119 Cong. Rec. 24,598 (1973) Constitution Ave. NW, Washington, DC Advisory Board or presented at 20210; telephone (512) 396–6652; email (statement of Sen. Tunney). ‘‘A court Advisory Board meetings. [email protected]. can make ts public interest Public Participation, Submissions, and SUPPLEMENTARY INFORMATION: The determination based on the competitive Access to the Public Record impact statement and response to public Advisory Board will meet telephonically on Wednesday, Advisory Board meetings: The comments alone.’’ U.S. Airways, 38 F. September 4, 2019, from 1:00 p.m. to Advisory Board will meet via Supp. 3d at 76 (citing United States v. 4:00 p.m. Eastern time. Advisory Board teleconference on Wednesday, Enova Corp., 107 F. Supp. 2d 10, 17 members will attend the meeting by September 4, 2019, from 1:00 p.m. to (D.D.C. 2000). teleconference. The teleconference 4:00 p.m. Eastern time. All Advisory VIII. DETERMINATIVE number and other details for Board meetings are open to the public. DOCUMENTS participating remotely will be posted on The teleconference number and other the Advisory Board’s website, http:// details for listening to the meeting will There are no determinative materials www.dol.gov/owcp/energy/regs/ be posted on the Advisory Board’s or documents within the meaning of the compliance/AdvisoryBoard.htm, 72 website no later than 72 hours prior to APPA that were considered by the hours prior to the commencement of the the meeting, at http://www.dol.gov/ United States in formulating the first meeting date. Advisory Board owcp/energy/regs/compliance/ proposed Final Judgment. meetings are open to the public. AdvisoryBoard.htm. The Advisory Board is mandated by Requests for special accommodations: Dated: August 1, 2019 Section 3687 of EEOICPA. The Secretary Please submit requests for special Respectfully submitted, accommodations to access the lllllllllllllllllllll of Labor established the Board under this authority and Executive Order telephonic Advisory Board meeting by Lee F. Berger (D.C. Bar # 482435) * 13699 (June 26, 2015). The purpose of email, telephone, or hard copy to Ms. Trial Attorney, Media, Entertainment, and the Advisory Board is to advise the Carrie Rhoads, OWCP, Room S–3524, Professional Services Section, Antitrust Secretary with respect to: (1) The Site U.S. Department of Labor, 200 Division, United States Department of Exposure Matrices (SEM) of the Constitution Ave. NW, Washington, DC Justice, 450 Fifth Street, NW, Suite 4000, Department of Labor; (2) medical 20210; telephone (202) 343–5580; email Washington, DC 20530, Phone: 202-598-2698, guidance for claims examiners for [email protected]. Email: [email protected] claims with the EEOICPA program, with Submission of written comments for * Attorney of Record respect to the weighing of the medical the record: You may submit written [FR Doc. 2019–17522 Filed 8–14–19; 8:45 am] evidence of claimants; (3) evidentiary comments, identified as for the BILLING CODE 4410–11–P requirements for claims under Part B of Advisory Board and with the meeting EEOICPA related to lung disease; and date of September 4, 2019, by any of the (4) the work of industrial hygienists and following methods: staff physicians and consulting • Electronically: Send to: physicians of the Department of Labor [email protected] (specify

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