Federal Register/Vol. 84, No. 22/Friday, February 1, 2019/Notices
Total Page：16
File Type：pdf, Size：1020Kb
1216 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices could have, or even should have, been U.S. Department of Justice, Antitrust Washington, DC 20530 (telephone: 202– alleged’’). Because the ‘‘court’s authority to Division, Media, Entertainment, and 305–8376). review the decree depends entirely on the Professional Services Section, 450 Fifth government’s exercising its prosecutorial Street NW, Suite 4000, Washington, DC Patricia A. Brink, discretion by bringing a case in the first 20530, Phone: 202–598–2698, Facsimile: Director of Civil Enforcement. place,’’ it follows that ‘‘the court is only 202–514–7308, Email: [email protected]. United States District Court authorized to review the decree itself,’’ and * Attorney of Record not to ‘‘effectively redraft the complaint’’ to for the District of Columbia inquire into other matters that the United [FR Doc. 2019–00555 Filed 1–31–19; 8:45 am] United States of America, 450 Fifth Street States did not pursue. Microsoft, 56 F.3d at BILLING CODE 4410–11–P NW, Washington, DC 20530. Plaintiff, v. 1459–60. GRAY TELEVISION, INC. 4370 Peachtree In its 2004 amendments,5 Congress made Road NE Atlanta, Georgia 30319; and clear its intent to preserve the practical DEPARTMENT OF JUSTICE RAYCOM MEDIA, INC. RSA Tower 20th benefits of utilizing consent decrees in Floor 201 Monroe Street Montgomery, antitrust enforcement, adding the Antitrust Division Alabama 36104 Defendants. unambiguous instruction that ‘‘[n]othing in Case No. 1:18–cv–2951 this section shall be construed to require the United States v. Gray Television, Inc., Judge Christopher R. Cooper court to conduct an evidentiary hearing or to et al.; Proposed Final Judgment and require the court to permit anyone to Competitive Impact Statement COMPLAINT intervene.’’ 15 U.S.C. § 16(e)(2); see also U.S. The United States of America, acting under Airways, 38 F. Supp. 3d at 76 (indicating that Notice is hereby given pursuant to the the direction of the Acting Attorney General a court is not required to hold an evidentiary Antitrust Procedures and Penalties Act, of the United States, brings this civil action hearing or to permit intervenors as part of its 15 U.S.C. 16(b)–(h), that a proposed against Gray Television, Inc. (‘‘Gray’’) and review under the Tunney Act). This language Final Judgment, Stipulation, and Raycom Media, Inc. (‘‘Raycom’’) to enjoin Gray’s proposed merger with Raycom. The explicitly wrote into the statute what Competitive Impact Statement have Congress intended when it first enacted the United States complains and alleges as Tunney Act in 1974. As Senator Tunney been filed with the United States follows: District Court for the District of explained: ‘‘[t]he court is nowhere compelled I. NATURE OF THE ACTION to go to trial or to engage in extended Columbia in United States of America v. proceedings which might have the effect of Gray Television, Inc., et al., Civil Action 1. Pursuant to an Agreement and Plan of vitiating the benefits of prompt and less No. 1:18–cv–2951 (CRC). On December Merger dated June 23, 2018, Gray plans to costly settlement through the consent decree 14, 2018, the United States filed a acquire Raycom through a merger transaction process.’’ 119 Cong. Rec. 24,598 (1973) Complaint alleging that the proposed for approximately $3.6 billion in cash and (statement of Sen. Tunney). Rather, the stock. merger between Gray Television, Inc., 2. The proposed merger would combine procedure for the public interest and Raycom Media, Inc., would violate determination is left to the discretion of the two of the largest independent local court, with the recognition that the court’s Section 7 of the Clayton Act, 15 U.S.C. television station owners in the United States ‘‘scope of review remains sharply proscribed 18. The proposed Final Judgment, filed and would combine many popular local by precedent and the nature of Tunney Act at the same time as the Complaint, television stations that compete against each proceedings.’’ SBC Commc’ns, 489 F. Supp. requires Gray and Raycom to divest other today in several markets, likely 2d at 11. A court can make its public interest certain broadcast television stations in resulting in significant harm to competition. determination based on the competitive Waco-Temple-Bryan, Texas; 3. In nine Designated Market Areas impact statement and response to public Tallahassee, Florida-Thomasville, (‘‘DMAs’’), Gray and Raycom each own at comments alone. U.S. Airways, 38 F. Supp. least one broadcast television station that is Georgia; Toledo, Ohio; Odessa-Midland, an affiliate of one of the ‘‘Big 4’’ television 3d at 76. See also United States v. Enova Texas; Knoxville, Tennessee; Augusta, Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) networks: NBC, CBS, ABC, or FOX. (noting that the ‘‘Tunney Act expressly Georgia; Panama City, Florida; Dothan, 4. These nine ‘‘Overlap DMAs’’ are: (i) allows the court to make its public interest Alabama; and Albany, Georgia. Waco-Temple-Bryan, Texas; (ii) Tallahassee, determination on the basis of the competitive Copies of the Complaint, proposed Florida-Thomasville, Georgia; (iii) Toledo, impact statement and response to comments Final Judgment, and Competitive Impact Ohio; (iv) Odessa-Midland, Texas; (v) alone’’); S. Rep. No. 93–298 93d Cong., 1st Statement are available for inspection Knoxville, Tennessee; (vi) Augusta, Georgia; Sess., at 6 (1973) (‘‘Where the public interest (vii) Panama City, Florida; (viii) Dothan, on the Antitrust Division’s website at Alabama; and (ix) Albany, Georgia. can be meaningfully evaluated simply on the https://www.justice.gov/atr and at the basis of briefs and oral arguments, that is the 5. In each Overlap DMA, the proposed approach that should be utilized.’’). Office of the Clerk of the United States merger would eliminate competition between District Court for the District of Gray and Raycom in (i) the licensing of Big VIII. Determinative Documents Columbia. Copies of these materials may 4 network content (‘‘retransmission consent’’) There are no determinative materials or be obtained from the Antitrust Division to cable, satellite, and fiber optic television documents within the meaning of the APPA upon request and payment of the providers (referred to collectively as that were considered by the United States in copying fee set by Department of Justice multichannel video programming formulating the proposed Final Judgment. regulations. distributors, or ‘‘MVPDs’’), for distribution to Dated: December 13, 2018 their subscribers; and (ii) the sale of spot Public comment is invited within advertising to advertisers interested in Respectfully submitted, sixty (60) days of the date of this notice. reaching viewers in the DMA. lllllllllllllllllllll Such comments, including the name of 6. By eliminating a major competitor, the Lee F. Berger * (D.C. Bar #482435), the submitter, and responses thereto, merger would likely give Gray the power to Trial Attorney. will be posted on the Antitrust charge MVPDs higher fees for its Division’s website, filed with the Court, programming—fees that those companies 5 The 2004 amendments substituted ‘‘shall’’ for would likely pass on, in large measure, to ‘‘may’’ in directing relevant factors for a court to and, under certain circumstances, published in the Federal Register. their subscribers. Additionally, the merger consider and amended the list of factors to focus on would likely allow Gray to charge local competitive considerations and to address Comments should be directed to Owen businesses and other advertisers higher potentially ambiguous judgment terms. Compare 15 Kendler, Chief, Media, Entertainment, U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) prices to reach audiences in the Overlap (2006); see also SBC Commc’ns, 489 F. Supp. 2d at and Professional Services Section, DMAs. 11 (concluding that the 2004 amendments ‘‘effected Antitrust Division, Department of 7. As a result, the proposed merger of Gray minimal changes’’ to Tunney Act review). Justice, 450 Fifth Street NW, Suite 4000, and Raycom likely would substantially VerDate Sep<11>2014 21:23 Jan 31, 2019 Jkt 247001 PO 00000 Frm 00170 Fmt 4703 Sfmt 4703 E:\FR\FM\01FEN1.SGM 01FEN1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices 1217 lessen competition in the markets for from the particular MVPD—i.e., an open- 22. Because viewers do not regard non-Big- licensing Big 4 television retransmission ended period during which the MVPD may 4 broadcast stations, or cable networks, as consent in the Overlap DMAs, and selling not distribute those stations to its close substitutes for the programming they broadcast television spot advertising in the subscribers, until a new contract is receive from Big 4 stations, these other Overlap DMAs, in violation of Section 7 of successfully negotiated. sources of programming are not sufficient to the Clayton Act, 15 U.S.C. 18. B. Relevant Markets discipline an increase in the fees charged for II. THE DEFENDANTS Big 4 television retransmission consent. 1. Product Market Accordingly, a hypothetical monopolist of 8. Gray is a Georgia corporation with its 16. Big 4 broadcast content has unique Big 4 television retransmission consent headquarters in Atlanta, Georgia. Gray owns appeal to television viewers, as compared to would likely increase the retransmission 92 television stations in 56 DMAs, of which the other content that is available through consent fees it charges to MVPDs by at least 83 stations are Big 4 affiliates. In 2017, Gray broadcast and cable stations. Big 4 stations a small but significant amount. reported revenues of $883 million. usually are the highest ranked in terms of 23. The licensing of Big 4 television 9. Raycom is a Delaware corporation with audience share and ratings in each DMA, retransmission consent therefore constitutes its headquarters in Montgomery, Alabama. largely because of unique offerings such as a relevant product market and line of Raycom owns 51 television stations in 43 local news, sports, and highly ranked DMAs, of which 45 stations are Big 4 commerce under Section 7 of the Clayton primetime programs.