26776 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices

The Department of Justice will receive Judgment, filed the same time as the same were in full force and effect as an for a period of thirty (30) days from the Complaint, requires Citadel and Capstar Order of the Court. date of this publication comments to terminate the JSA pursuant to the 4. Citadel and Capstar have agreed to relating to the Decree. Comments should Final Judgment and Capstar to divest a terminate the Citadel-Triathlon Joint be addressed to the Assistant Attorney particular station in Spokane, Sales Agreement (‘‘JSA’’) (defined in General of the Environment and Natural Washington. Copies of the Amended Section II(e) of the Final Judgment) Resources Division, Department of Complaint, proposed Final Judgment pursuant to the Final Judgment, but Justice, Washington, D.C. 20530, and and Amended Competitive Impact subject to Paragraph 9 of this should refer to, United States v. Thomas Statement are available for inspection at stipulation. In addition, the parties have Plating Company, Inc. et al., Civil the Department of Justice in agreed to make certain transfers of radio Action No. 98–N–1536, and D.J. Ref. # Washington, D.C. in Room 200, 325 stations. Capstar’s transfer of KEYF–FM 90–11–2–1327. Seventh Street, N.W., and at the Office to Citadel in Spokane is part of the The Decree may be examined at the of the Clerk of the United States District agreement memorialized in the Final United States Department of Justice, Court for the District of the District of Judgment. Environment and Natural Resources Columbia. 5. The parties have agreed to take the Division, Denver Field Office, 999 18th Public comment is invited within 60 following actions that the United States Street, North Tower Suite 945, Denver, days of the date of this notice. Such has agreed not to oppose. In Colorado Colorado, 80202, and the U.S. EPA comments, and responses thereto, will Springs, Capstar has agreed to transfer Region VIII, 999 18th Street, Superfund be published in the Federal Register KSPZ–FM, KVOR–AM, and KTWK–AM Records Center, Suite 500, Denver, Co. and filed with the Court. Comments to Citadel while Citadel has agreed to 80202, and at the Consent Decree should be directed to Craig W. Conrath, transfer KKLI–FM to Capstar. In Library, 1120 G Street, NW., 3rd Floor, Chief, Merger Task Force, Antitrust Spokane, Capstar has agreed to transfer Washington, DC 20005, (202) 624–0892. Division, Department of Justice, 1401 H KEYF–FM and KEYF–AM to Citadel. A copy of the Decree may be obtained St N.W., Suite 4000, Washington, D.C. Also in Spokane, Citadel has entered in person or by mail from the Consent 20530 (telephone: (202) 307–0001). into an agreement with an unrelated third party to acquire KNJY–FM. Decree Library, 1120 G Street, NW, 3rd Rebecca P. Dick, Although the Final Judgment is not Floor, Washington, DC 20005. In Director of Civil Non-Merger Enforcement. requesting a copy, please enclose a contingent upon these exchanges and check in the amount of $4.00 for the Stipulation acquisitions, the Antitrust Division has analyzed the transactions and has no Decree (25 cents per page reproduction It is stipulated by and between the cost) payable to the Consent Decree objection to them. United States Department of Justice 6. Citadel and Capstar state that there Library. Antitrust Division (‘‘Antitrust are no agreements or understandings Joel M. Gross, Division’’), Citadel Communications between them that will affect how they Chief, Environmental Enforcement Section, Corporation (‘‘Citadel’’), and Capstar will program or format the radio stations Environment and Natural Resources Division. Broadcasting Corporation (‘‘Capstar’’), that they own in Colorado Springs or [FR Doc. 99–12338 Filed 5–14–99; 8:45 am] by their respective attorneys, as follows: Spokane. BILLING CODE 4410±15±M 1. This Court has jurisdiction over the 7. This Stipulation shall apply with subject matter of this action and the equal force and effect to any amended parties have agreed to waive all proposed Final Judgment agreed upon DEPARTMENT OF JUSTICE objections to personal jurisdiction and in writing by the parties and submitted venue in the United States District Court to the Court. In the event plaintiff Antitrust Division for the District of Columbia. withdraws its consent, as provided in United States v. Citadel 2. The parties stipulate that a Final paragraph 2 above, or in the event the Communications Corporation, Judgment in the form hereto attached proposed Final Judgment is not entered Triathlon Broadcasting Company, and may be filed and entered by the Court, pursuant to this Stipulation, the time Capstar Broadcasting Corporation upon the motion of any party or upon has expired for all appeals of any Court the Court’s own motion, at any time ruling declining entry of the proposed Notice is hereby given pursuant to the after compliance with the requirements Final Judgment, and the Court has not Antitrust Procedures and Penalties Act, of the Antitrust Procedures and otherwise ordered continued 15 U.S.C. Section 16(b) through (h), that Penalties Act, 15 U.S.C. 16, and without compliance with the terms and a proposed Final Judgment, Stipulation further notice to any party or other provisions of the proposed Final and Amended Competitive Impact proceedings, provided that plaintiff has Judgment, then the parties are released Statement have been filed with the not withdrawn its consent, which it may from all further obligations under this United States District Court for the do at any time before the entry of the Stipulation, and the making of this District of the District of Columbia in proposed Final Judgment by serving Stipulation shall be without prejudice to United States of America v. Citadel notice thereof on defendants and by any party in this or any other Communications Corporation, Capstar filing that notice with the Court. proceeding. Broadcasting Corporation and Triathlon 3. Defendants shall abide by and 8. Defendants represent that the JSA Broadcasting Company, Civil Action No. comply with the provisions of the will be terminated and the divestiture of 99–CV01043. On April 30, 1999, the proposed Final Judgment pending entry KEYF–FM will be made as ordered, and United States filed an Amended of the Final Judgment by the Court, or that defendants will later raise no claim Complaint alleging that the Joint Sales until expiration of time for all appeals of hardship or difficulty as grounds for Agreement (‘‘JSA’’) in Colorado Springs, of any Court ruling declining entry of asking the Court to modify any of the Colorado, and Spokane, Washington the proposed Final Judgment, and shall, divestiture provisions contained and Triathlon’s acquisition of certain from the date of the signing of this therein. radio stations in Spokane, Washington Stipulation by the parties, comply with 9. If Capstar does not acquire violates Section One of the Sherman all the terms and provisions of the Triathlon Broadcasting Company by Act, 15 U.S.C. 1. The proposed Final proposed Final Judgment as though the June 2, 1999, the Antitrust Division will

VerDate 06-MAY-99 12:05 May 14, 1999 Jkt 183247 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\A17MY3.084 pfrm04 PsN: 17MYN1 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices 26777 withdraw the proposed Final Judgment I. Jurisdiction promotional materials relating to these and dismiss Capstar as a defendant in This Court has jurisdiction over each stations; and all logs and other records this matter. of the defendants and over the subject maintained by the operator or owner in Dated: April 7, 1999. matter of this action, and defendants connection with its business: (1) In Colorado Springs, KSPZ–FM, For Plaintiff United States of America. have agreed to waive any objection to KKFM–FM, KKMG–FM, KVUU–FM, Karl D. Knutsen, personal jurisdiction. The Complaint KKLI–FM, KVOR–AM, and KTWK–AM; United States Department of Justice, Antitrust states a claim upon which relief may be granted against the defendants, as and Division, Merger Task Force, 1401 H Street, (2) In Spokane, KAEP–FM, KDRK– N.W., Washington, D.C. 20530, (202) 514– hereinafter defined, under Section 1 of FM, KEYF–FM, KNFR–FM, KISC–FM, 0976. the Sherman Act, 15 U.S.C. 1. KKZK–FM, KGA–AM, KEYF–AM, For Defendant Capstar Broadcasting II. Definitions KAQQ–AM, KJRB–AM, and KUDY–AM. Corporation. As used in this Final Judgment: (G) ‘‘Triathlon’’ means Triathlon Neil W. Imus, Broadcasting Company, a Delaware Vinson & Elkin L.L.P., 1455 Pennsylvania A. ‘‘Capstar’’ means defendant Capstar Broadcasting Corporation, a corporation with its headquarters in San Avenue, N.W., Washington, D.C. 20006, (202) Diego, California, named as a defendant 639–6675. Delaware corporation with its headquarters in Austin, Texas, and its in this action. Dated: April 8, 1999. successors, assigns, subsidiaries, III. Applicability For Defendant Citadel Communications divisions, groups, affiliates, Corporation. A. The provisions of this Final partnerships and joint ventures, and Debra H. Dermody, Judgment apply to the defendants, their directors, officers, managers, agents, and successors and assigns, their Reed, Smith, Shaw, & McClay, 435 Sixth Ave., employees, including but not limited to Pittsburgh, PA 15219, (412) 288–3302. subsidiaries, directors, officers, Hicks, Muse, Tate, & Furst Incorporated managers, agents, and employees, and Final Judgment (‘‘Hicks-Muse’’), a Delaware corporation all other persons in active concert or Whereas, plaintiff, the United States with its headquarters in Dallas, Texas. participation with any of them who of America, has filed its complaint in B. ‘‘Citadel’’ means defendant Citadel shall have received actual notice of this this action, and plaintiff and defendants Communications Corporation, a Nevada Final Judgment by personal service or Citadel Communications Corporation corporation with its headquarters in Las otherwise. (‘‘Citadel’’) and Capstar Broadcasting Vegas, Nevada, and its successors, B. The defendants shall require, as a Corporation (‘‘Capstar’’) by their assigns, subsidiaries, divisions, groups, condition of the sale or other respective attorneys, having consented affiliates, partnerships and joint disposition of any of the Radio Assets, to the entry of this Final Judgment ventures, and directors, officers, that the acquirer or acquirers agree to be without trial or adjudication of any managers, agents, and employees. bound by the provisions of this Final issue of fact or law herein, and without C. ‘‘Defendants’’ means Citadel and Judgment. this Final Judgment constituting any Capstar. IV. Termination of JSA and Divestment evidence against or an admission by any D. ‘‘Antitrust Division’’ means the of KEYF–FM party with respect to any issue of law Antitrust Division of the United States or fact herein; Department of Justice. A. Citadel and Capstar are hereby And whereas, these defendants have E. ‘‘JSA’’ means the Joint Sales ordered and directed in accordance with agreed to be bound by the provisions of Agreement entered on or around the terms of this Final Judgment to this Final Judgment pending its December 15, 1995 among Citadel and terminate the JSA as quickly as possible, approval by the Court. Pourtales Radio Partnership (to which but no later than June 2, 1999. And whereas, the essence of this Final Triathlon is successor), providing for B. Capstar is also ordered to divest Judgment is the prompt and likely the sale of radio advertising time in KEYF–FM in Spokane as quickly as termination of the Joint Sales Agreement Colorado Springs, Colorado and possible, but no later than June 2, 1999. ‘‘JSA’’ in Colorado Springs, Colorado Spokane, Washington. C. The Antitrust Division, in its sole and Spokane, Washington, identified F. ‘‘Radio Assets’’ means all of the discretion, may extend the time period below, which will help ensure that assets, tangible or intangible, used in the for termination for two (2) additional competition is substantially preserved; operation of the following radio stations thirty (30) day periods of time, not to And whereas, plaintiff requires that sell advertising time in Colorado exceed sixty (60) calendar days in total. Citadel and Capstar to terminate the JSA Springs, Colorado, and Spokane, D. Citadel and Capstar shall not for the purpose of restoring competition Washington, including all real property acquire any other radio stations that sell in the sale of radio advertising; (owned or leased) used in the operation radio advertising time in either And whereas, Citadel and Capstar of these stations, all broadcast Colorado Springs or Spokane except have represented to the plaintiff that the equipment, office equipment, office under the procedures stated in Section JSA can and will be terminated, subject furniture, fixtures, materials, supplies, V. Further, Citadel and Capstar shall not to paragraph 9 of the Stipulation, and and other tangible property used in the enter into any JSA or any cooperative that Citadel and Capstar will not later operation of these stations; all licenses, selling arrangement with any other raise claims of hardship, contractual permits, authorizations, and operator of radio stations serving bar, or difficulty as grounds for asking applications therefor issued by the listeners in either Colorado Springs or the Court to delay or modify termination Federal Communications Commission Spokane except under the procedures of the JSA described below: and other government agencies related and conditions stated in Section V. Now, therefore, before the taking of to these stations; all contracts, E. Citadel shall not confer with any testimony, and without trial or agreements, leases and commitments of operators of other radio stations that sell adjudication of any issue of fact or law defendants relating to their operation; advertising time in Colorado Springs or herein, and upon consent of the parties all trademarks, service marks, trade Spokane regarding the price of radio hereto, it is hereby ordered, adjudged, names, copyrights, patents, slogans; advertising time—including any and decreed as follows: programming materials, and discounts for advertisers or classes of

VerDate 06-MAY-99 12:05 May 14, 1999 Jkt 183247 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\A17MY3.043 pfrm04 PsN: 17MYN1 26778 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices advertisers or the availability of added radio advertising time in either be divulged by a representative of the value such as free or bonus spots, Colorado Springs or Spokane without plaintiff to any person other than a duly remote broadcasts, or other promotions. advance written approval from the authorized representative of the Antitrust Division. Executive Branch of the United States, V. Notice except in the course of legal proceedings VI. Preservation of Assets Capstar and Citadel shall provide to which the plaintiff is a party advance notification to the Antitrust Unitl the termination of the JSA (including grand jury proceedings), or Division when they directly or required by Section IV has been for the purpose of securing compliance indirectly acquire any assets of or any accomplished, Citadel shall take all with this Final Judgment, or as interest (including any financial, steps necessary to maintain and operate otherwise required by law. security, loan, equity or management the Radio Assets as active and viable D. If at the time information or interest) in any radio station that sells entities to the extent it is able under the documents are furnished by the advertising time in Colorado Springs, JSA; maintain the management, staffing, defendants to the plaintiff, the Colorado, or Spokane, Washington, or sales and marketing of the Radio Assets; defendants represent and identify in enter into any JSA or any cooperative and maintain the Radio Assets in writing the material in any such selling arrangement with any other operable condition at current capacity information or documents to which a operator of radio stations serving configurations. Citadel and Capstar claim of protection may be asserted listeners in either city. This obligation agree that they may hire each other’s under Rule 26(c)(7) of the Federal Rules to provide notice is met under this employees and that they will not of Civil Procedure, and the defendants section when a transaction is subject to enforce any non-complete provisions in mark each pertinent page of such the reporting and waiting period the employment contracts of any sales material, ‘‘Subject to claim of protection requirements of the Hart-Scott-Rodino employee of any radio station they own under Rule 26(c)(7) of the Federal Rules Antitrust Improvements Act of 1976, as in Colorado Springs. of Civil Procedure,’’ then ten (10) amended, 15 U.S.C. 18a (the ‘‘HSR calendar days’ notice shall be given by Act’’), VII. Financing the plaintiff to the defendants prior to Notification under this section shall Citadel and Capstar shall not finance divulging such material in any legal be provided to the Antitrust Division in for each other all or any part of any proceeding (other than a grand jury the same format as, and per the transaction related to this Final proceeding) to which the defendants are instructions relating to the Notification Judgment. and Report Form set forth in the not a party. VIII. Compliance Inspection Appendix to Part 803 of Title 16 of the IX. Retention of Jurisdiction Code of Federal Regulations as For purposes of determining or amended, except that the information securing compliance with the Final Jurisdiction is retained by this Court requested in Items 5–9 of the Judgment or determining whether the for the purpose of enabling any of the instructions must be provided only Final Judgment should be modified or parties to this Final Judgment to apply about the sales of radio advertising time terminated and subject to any legally to this Court at any time for such further in Colorado Springs and Spokane. recognized privilege, from time to time: orders and directions as may be Notification shall be provided at least A. Duly authorized representatives of necessary or appropriate for the thirty (30) days prior to the acquisition the plaintiff, upon the written request of construction or carrying out of this Final of any such interest, and shall include, the Assistant Attorney General in charge Judgment, for the modification of any of beyond what may be required by the of the Antitrust Division, and on the provisions hereof, for the applicable instructions, the names of the reasonable notice to the defendants enforcement of compliance herewith, principal representatives of the parties made to their principal offices, shall be and for the punishment of any to the agreement who negotiated the permitted: violations hereof. agreement, and any management or (1) Access during office hours of the X. Termination strategic plans discussing the proposed defendants to inspect and copy all books, transaction. If within the 30-day period ledgers, accounts, correspondence, Unless this Court grants an extension, after notification, representatives of the memoranda, and other records and this Final Judgment will expire upon Antitrust Division make a written documents in the possession or under the the tenth anniversary of the date of its request for additional information, control of the defendants, who may have entry. defendants shall not consummate the counsel present, relating to the matters contained in this Final Judgment; and XI. Public Interest proposed transaction or agreement until (2) Subject to the reasonable convenience twenty (20) days after submitting all of the defendants and without restraint or Entry of this Final judgment is in the such additional information. Early interference from any of them, to interview, public interest. termination of the waiting periods in either informally or on the record, their Dated llll this paragraph may be requested and, officers, employees, and agents, who may lllllllllllllllllllll where appropriate, granted in the same have counsel present, regarding any such United States District Judge matters. manner as is applicable under the Plaintiffs Explanation of Consent requirements and provisions of the HSR B. Upon the written request of the Decree Procedures Act and rules promulgated thereunder. Assistant Attorney General in charge of This Section shall be broadly construed, the Antitrust Division, made to the Plaintiff, the United States of and any ambiguity or uncertainty defendants’ principal offices, the America, submits this short regarding the filing of notice under this defendants shall submit written reports, memorandum summarizing the Section shall be resolved in favor of under oath if requested, with respect to procedures regarding the Court’s entry filing notice. any matter contained in the Final of the proposed Final Judgment. The Citadel shall not enter into any JSA or Judgment. Judgment would settle this case any other cooperative selling C. No information or documents pursuant to the Antitrust Procedures arrangement with any other operator of obtained by the means provided in and Penalties Act, 15 U.S.C. 16(b)–(h) radio stations that sells or helps to sell Section VIII of this Final Judgment shall (the ‘‘APPA’’), which applies to civil

VerDate 06-MAY-99 12:05 May 14, 1999 Jkt 183247 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\A17MY3.046 pfrm04 PsN: 17MYN1 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices 26779 antitrust cases brought and settled by Decree Procedures were served this 28th The complaint alleges that in the United States. day of April, 1999, by hand and Fedex, Spokane, Citadel’s KAEP–FM, KDRK– 1. Today, plaintiff has filed a to the following: FM, KJRB–AM, and KGA–AM competed Complaint, a proposed Final Judgment, Debra H. Dermody, Reed, Smith, Shaw, against Triathlon’s KKZX–FM, KEYF– and a Stipulation by which the parties & McClay, 435 Sixth Avenue, FM, KEYF–AM, and KUDY–AM prior to have agreed to the Court’s entry of the Pittsburgh, PA 15219, Counsel for the JSA. The complaint further alleges proposed Final Judgment following Citadel Communications Corporation, that since Citadel and Triathlon compliance with the APPA, and a By Fedex. instituted the JSA in Spokane, Citadel Motion to Enter the Stipulation and David J. Laing, Baker & McKenzie, 815 now sets the prices for radio advertising Order. The defendants have agreed not Connecticut Avenue, N.W., for both its and these Triathlon stations. to consummate their transaction until Washington, D.C. 20006, Counsel for In addition, the complaint alleges that the Court signs the Stipulation and Triathlon Broadcasting Company, By Triathlon later acquired KNFR–FM, Order. The Court’s entry of the hand. KISC–FM, and KAQQ–AM in Spokane, Stipulation will enable it immediately Neil W. Imus, Vinson & Elkins L.L.P., and has a reduced incentive to compete to govern the parties’s behavior relating 1455 Pennsylvania Avenue, N.W., against the JSA because it receives a to the transaction, until such time as the Washington, D.C. 20006, Counsel for share of the profits from the JSA. Final Judgment is entered pursuant to Capstar Broadcasting Corporation, By Finally, the complaint alleges that the APPA. hand. Capstar Broadcasting Corporation 2. Plaintiff is also filing a Competitive Karl D. Knutsen (‘‘Capstar’’) has announced its Impact Statement relating to the agreement to acquire Triathlon, proposed Judgment [15 U.S.C. 16(b)]. Amended Competitive Impact including its stations in Colorado 3. The APPA requires that plaintiff Statement Springs and Spokane. After it acquires publish the proposed Final Judgment The United States, pursuant to Triathlon, Capstar would become a and Competitive Impact Statement in Section 2(b) of the Antitrust Procedures party to the JSA, if the JSA were still in the Federal Register and in certain and Penalties Act (‘‘APPA’’), 15 U.S.C. existence. newspapers at least 60 days prior to 16(b)–(h), files this Amended The prayer for relief seeks: (a) entry of the Final Judgment. The notice Competitive Impact Statement relating adjudication that Citadel’s JSA with will inform members of the public that to the proposed Final Judgment Triathlon in Colorado Springs violates they may submit comments about the submitted for entry in this civil antitrust Section One of the Sherman Act, 15 Final Judgment to the United States proceeding. U.S.C. 1; (b) adjudication that Citadel’s Department of Justice, Antitrust JSA with Triathlon and Triathlon’s Division [15 U.S.C. 16(b)-(c)]. I. Nature and Purpose of the Proceeding acquisition of non-JSA stations in 4. During the sixty-day period, The plaintiff filed an amended civil Spokane violate Section One of the plaintiff will consider, and at the close antitrust Complaint on April 30, 1999 Sherman Act, 15 U.S.C. 1; (c) entry of of that period respond to, any comments (‘‘Complaint’’) alleging that Citadel an injunction terminating the JSA in received, and it will publish the Communication Corporation’s both Colorado Springs and Spokane and comments and responses in the Federal (‘‘Citadel’’) ‘‘Joint Sale Agreement’’ requiring Capstar to divest KEF–FM in Register. (‘‘JSA’’) with Triathlon Broadcasting Spokane; (d) entry of an injunction 5. After the expiration of the sixty-day (‘‘Triathlon’’) violates Section One of preventing Citadel from discussing the period, plaintiff will file with the Court the Sherman Act, 15 U.S.C. 1. The price of radio advertising time with the comments, the government’s Complaint alleges that the JSA between competitors in Colorado Springs and responses, and a Motion for Entry of the Citadel and Triathlon is anticompetitive Spokane; and (e) such other relief as is Final Judgment (unless the United in the Colorado Springs, Colorado, and proper. States has decided to withdraw its Spokane, Washington, radio advertising The United States has reached a consent to entry of the Final Judgment, markets. The Complaint also alleges that proposed settlement with Citadel and as permitted by Paragraph 2 of the Triathlon’s acquisition of additional Capstar which is memorialized in the Stipulation) [see 15 U.S.C. 16(d)]. radio stations in Spokane is proposed Final Judgment filed with the 6. At that time, pursuant to the APPA, anticompetitive. Court. Under the terms of the proposed 15 U.S.C. 16(e)–(f), the Court may enter The Complaint alleges that in Final Judgment, Citadel and Capstar the Final Judgment without a hearing, if Colorado Springs, Citadel’s KKFM–FM, will terminate the JSA and Capstar will it finds that the Final Judgment is in the and KKMG–FM competed against divest KEYF–FM. public interest. Triathlon’s KSPZ–FM, KVUU–FM, The plaintiff and defendants Citadel and Capstar have stipulated that the Dated: April 28, 1999. KTWK–AM, and KVOR–AM prior to the JSA, and that since the creation of the proposed Final Judgment may be Respectfully submitted. entered after compliance with the APPA Karl D. Knutsen, JSA, Citadel has acquired KKLI–FM. The complaint further alleges that since and that they can fulfill their obligations Attorney, United States Department of Justice, under the Final Judgment. Entry of the Antitrust Division, Merger Task Force, 1401 Citadel and Triathlon instituted the JSA in Colorado Springs, Citadel now sets proposed Final Judgment would H St., NW, Suite 4000, Washington, DC 20530, terminate this action, except that the (202) 514–0976. the prices for radio advertising for both its and Triathlon’s stations. In addition, Court would retain jurisdiction to Certificate of Service the complaint alleges that Citadel construe, modify, or enforce the I, Karl D. Knutsen, of the Antitrust approached its remaining competitors in provisions of the Final Judgment and to Division of the United States Colorado Springs and suggested that punish violations thereof. Department of Justice, do hereby certify they could all make more money if they II. The Alleged Violation that true copies of the foregoing were to eliminate a discount to certain Complaint, Final Judgment, Stipulation, advertisers, thus indicating its intent A. The Defendants Competition Impact Statement, and and willingness to collude and avoid Citadel is a Nevada corporation with Plaintiff’s Explanation of Consent price competition. its headquarters in Las Vegas, Nevada.

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According to industry estimates, it owns in an effort to reach potential customers, substantially harms competition. The 107 radio stations in 20 U.S. markets. use a mix of electronic and print media Complaint alleges that Citadel’s JSA Triathlon is a Delaware Corporation to deliver their advertising messages. In with Triathlon in Colorado Springs and with its headquarters in San Diego, so doing, they have learned that certain Spokane along with Triathlon’s California. According to industry media are more cost-effective than subsequent acquisition of additional estimates, it currently owns 31 radio others in meeting certain of their stations in Spokane harms competition. stations in six U.S. markets. Capstar has advertising goals and that radio can Prior to the JSA, an advertiser buying announced its agreement to acquire serve several such goals. radio advertising time could select a Triathlon. When radio advertisers use radio as combination of Citadel, Triathlon, and Capstar is a Delaware corporation part of a ‘‘media mix,’’ they often view independent stations that would allow with its headquarters in Austin, Texas. the other advertising media (such as it to exclude either the Triathlon or It is associated with Hicks, Muse, Tate, television or newspapers) as a Citadel stations—thus giving both & Furst Incorporated (‘‘Hicks-Muse’’), a complement to, and not a substitute for, Citadel and Triathlon an incentive to Delaware corporation with its radio advertising. Many advertisers who negotiate with the advertiser. After the headquarters in Irving, Texas. use radio as part of a multi-media JSA, however, the Citadel and Triathlon According to industry estimates, Capstar campaign do so because they believe stations subject to the JSA no longer owns approximately 309 radio stations that the radio component enhances the compete with each other. Because the in 76 U.S. markets. Chancellor Media effectiveness of their overall advertising JSA represents a large percentage of the Company, a company with which campaign. They view radio as giving radio advertising available in those Capstar shares some directors and them unique and cost-effective access to geographic markets, many advertisers in owners, has announced its intention to certain audiences. They recognize that those markets cannot meet their listener acquire Capstar. because radio is portable, people can goals without using the JSA stations. listen to it anywhere—especially in Realizing that these advertisers cannot B. Description of the Events Giving Rise places and situations where other media buy around its JSA, Citadel can raise to the Alleged Violation are not present, such as in the office and prices to many advertisers. Prior to December, 1995, the Citadel car. In addition, they know that radio b. Advertisers could not turn to other and Triathlon radio stations in Colorado formats are designed to attract listeners Colorado Springs or Spokane radio Springs and Spokane competed against in specific demographic groups. As a stations to prevent Citadel from each other within their respective cities. consequence of the foregoing factors, the imposing an anticompetitive price On or about December 15, 1995, closest substitute to advertising on one increase. If Citadel and Triathlon raised however, Citadel and Triathlon’s radio station, for many advertisers, is prices to advertisers in Colorado Springs predecessor corporation entered into a advertising on other radio stations. or Spokane, other radio stations in Joint Sales Agreement (‘‘JSA’’). Under In addition to accomplishing these Colorado Springs and Spokane would the terms of the JSA, Citadel sets prices goals more efficiently than other media, not and could not profitably offer and sells advertising time on the radio radio advertising is the relevant market additional advertising inventory or stations subject to the JSA in both in which to evaluate the JSA because a change their formats to provide access Colorado Springs and Spokane. Citadel hypothetical monopolist of radio to different audiences, thus mitigating also collects payments from advertisers, stations could profitably raise prices. the effect of the price increase. Stations makes a monthly report to Triathlon, Although some local and national are constrained in their ability to play deducts expenses, and divides the advertisers may switch some of their additional commercials by the tendency profits between the parties. Citadel and advertising to other media rather than of listeners to avoid stations that play Triathlon have operated under the JSA absorb a price increase in the cost of too much advertising and the insistence since December, 1995. Later, Triathlon radio advertising time, the existence of of advertisers on ‘‘separation’’ from acquired another group of radio stations such advertisers would not prevent all similar advertisers. Thus, even if in Spokane. radio stations in the Colorado Springs advertisers trying to avoid a price and Spokane markets from profitably increase wanted to run additional C. Anticompetitive Consequences of the raising their prices a small but commercials on non-Citadel and non- JSA significant amount. At a minimum, Triathlon stations, the alternative 1. The Sale of Radio Advertising Time stations could profitably raise prices to stations would likely be unable to in Colorado Springs, Colorado, and those advertisers who view radio as a accommodate them. Moreover, even Spokane, Washington, Are The necessary advertising medium for them, assuming that such a station could Appropriate Markets in Which To or as a necessary advertising accommodate an increase in advertisers, Analyze This Antitrust Action complement to other media. Radio it would perceive the increase in stations negotiate prices individually demand for its product and would have The Complaint alleges that the with advertisers; consequently, radio an incentive to raise its prices as well. provision of advertising time on radio stations can charge different advertisers Finally, successful stations are reluctant stations serving Colorado Springs, different prices. Radio stations generally to change formats because of the risk Colorado, and Spokane, Washington, can identify advertisers with strong and costs involved in a format change constitutes a line of commerce and radio preferences. Because of this ability and unsuccessful stations may not be sections of the country, or relevant to price discriminate among customers, able to gain a large enough audience to markets, for antitrust purposes. Radio radio stations may charge higher prices undermine a supra-competitive price stations, by their programming, seek to to advertisers that view radio as increase. In addition, an advertiser attract listeners. The radio stations then particularly effective for their needs, wishing to reach a broad audience sell advertising time to advertisers who while maintaining lower prices for other cannot simply run more commercials on want to reach those listeners. Radio’s advertisers. fewer stations, because the advertiser unique characteristics as an inexpensive will not reach a broad enough audience drive-time and workplace news and 2. Harm to Competition without a range of stations. entertainment companion has given it a. The concentration of radio stations In both the Colorado Springs and distinct and special qualities. Retailers, in Colorado Springs and Spokane Spokane radio advertising markets, new

VerDate 06-MAY-99 12:05 May 14, 1999 Jkt 183247 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\A17MY3.051 pfrm04 PsN: 17MYN1 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices 26781 entry is unlikely as a response to a Finally, the proposed Final Judgment The proposed Final Judgment supra-competitive price increase from prevents Citadel from discussing radio provides that the Court retains the JSA. In addition, it is unlikely that advertising prices and discounts with jurisdiction over this action, and the stations in adjacent communities could other radio stations in both Colorado parties may apply to the Court for any boost their power so as to enter the Springs and Spokane. Nothing in this order necessary or appropriate for the Colorado Springs or Spokane markets proposed Final Judgment limits the modification, interpretation, or without interfering with other stations plaintiff’s ability to investigate or bring enforcement of the Final Judgment. and thus violating Federal actions, where appropriate, challenging VI. Alternatives to the Proposed Final Communications Commission other past or future activities of Judgment regulations. defendants in Colorado Springs, Spokane, or any other markets, The plaintiff considered, as an III. Explanation of the Proposed Final including their entry into a JSA or any alternative to the proposed Final Judgment other agreements related to the sale of Judgment, a full trial on the merits of its The proposed Final Judgment would advertising time except those complaint against defendants. The preserve competition in the sale of radio specifically identified in the Complaint. plaintiff is satisfied, however, that the advertising time in both Colorado termination of the JSA and other relief Springs and Spokane. It requires Citadel IV. Remedies Available to Potential contained in the proposed Final and Capstar 1 to terminate their JSA as Private Litigants Judgment will preserve viable soon as possible, but no later than June Section 4 of the Clayton Act, 15 competition in the sale of radio 2, 1999. Plaintiff, at its sole discretion, U.S.C. 15, provides that any person who advertising time in the Colorado Springs may extend the time period for the has been injured as a result of and Spokane radio advertising markets. parties to comply with the terms of the conducted prohibited by the antitrust Thus, the proposed Final Judgment Final Judgment for two additional 30- laws may bring suit in federal court to achieves all of the relief the Government day periods. In addition, the proposed recover three times the damages the would have obtained through litigation, Final Judgment requires Capstar to person has suffered, as well as costs and but avoids the time, expense and divest KEYF–FM in Spokane. reasonable attorneys’ fees. Entry of the uncertainty of a full trial on the merits Defendants have also expressed their proposed Final Judgment will neither of the complaint. desire to exchange certain other stations impair nor assist the bringing of any VII. Standard of Review Under the among themselves and plaintiff has private antitrust damage action. APPA for Proposed Final Judgment stipulated that it will not contest any or V. Procedures Available for all of their proposed exchanges. See The APPA requires that proposed Modification of the Proposed Final Stipulation and Order, ¶¶ 4 & 5. The consent judgments in antitrust cases Judgment Final Judgment provides that neither brought by the United States be subject defendant, nor their successors, can The plaintiff and the defendants have to a sixty (60) day comment period, after acquire any other radio station in either stipulated that the proposed Final which the court shall determine Colorado Springs or Spokane without Judgment may be entered by the Court whether entry of the proposed Final giving the Antitrust Division of the after compliance with the provisions of Judgment ‘‘is in the public interest.’’ Department of Justice prior notice. the APPA, provided that the United In making that determination, the Furthermore, the Final Judgment places States has not withdrawn its consent. court may consider— conditions on the parties if they wish to The APPA conditions entry upon the (1) the competitive impact of such enter any subsequent JSA in either Court’s determination that the proposed judgment, including termination of alleged Colorado Springs or Spokane. Capstar Final Judgment is in the public interest. violations, provisions for enforcement and (never a party to the JSA) may not enter The APPA provides a period of at modification, duration or relief sought, into a JSA in those cities without least sixty (60) days preceding the anticipated effects of alternative remedies notifying that Antitrust Division; Citadel effective date of the proposed Final actually considered, and any other Judgment within which any person may considerations bearing upon the adequacy of may not enter a JSA in those cities such judgment; without permission from the Antitrust submit to the United States written (2) the impact of entry of such judgment Division. Despite their clear competitive comments regarding the proposed Final upon the public generally and individuals significance. JSAs may not all be Judgment. Any person who wishes to alleging specific injury from the violations reportable to the Department under the comment should do so within sixty (60) set forth in the complaint including Hart-Scott-Rodino Antitrust days of the date of publication of this consideration of the public benefit, if any, to Improvements Act of 1976, as amended, Competitive Impact Statement in the be derived from a determination of the issues 15 U.S.C. 18a (the ‘‘HSR Act’’). Thus, Federal Register. The United States will at trial. this provision in the proposed Final evaluate and respond to the comments. 15 U.S.C. 16(e). As the United States Judgment ensures that the Department All comments will be given due Court of Appeals for the District of will receive notice of and be able to act, consideration by the Department of Columbia Circuit recently held, this if appropriate, to stop any agreements Justice, which remains free to withdraw statute permits a court to consider, that might have anticompetitive effects its consent to the proposed Final among other things, the relationship in these radio advertising markets. Judgment at any time prior to its entry. between the remedy secured and the The comments and the response of the specific allegations set forth in the 1 Although this action names Triathlon as a United States will be filed with the government’s complaint, whether the defendant, the Department expects that Triathlon Court and published in the Federal decree is sufficiently clear, whether will be acquired by Capstar soon and will be acquired by Capstar soon and will then cease to Register. enforcement mechanisms are sufficient, have a separate legal existence. Hence, relief against Any such written comments should and whether the decree may positively it is unnecessary. When Triathlon’s separate be submitted to: Craig W. Conrath, harm third parties. See United States v. existence is terminated, the Department will move Chief, Merger Task Force, Antitrust Microsoft Corp., 56 F.3d 1448, 1461–62 to dismiss it as a defendant. This will occur before the Department moves for entry of the proposed Division, United States Department of (D.C. Cir. 1995). In conducting this Final Judgment at the conclusion of the Tunney Act Justice, 1401 H Street, N.W., Suite 4000, inquiry. ‘‘[t]he Court is nowhere review process. Washington, D.C. 20530. compelled to go to trial or to engage in

VerDate 06-MAY-99 12:05 May 14, 1999 Jkt 183247 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\A17MY3.053 pfrm04 PsN: 17MYN1 26782 Federal Register / Vol. 64, No. 94 / Monday, May 17, 1999 / Notices extended proceedings which might have if it falls short of the remedy the court DEPARTMENT OF JUSTICE the effect of vitiating the benefits of would impose on its own, as long as it prompt and less costly settlement falls within the range of acceptability or Antitrust Division through the consent decree process.’’ 2 is ‘within the reaches of public United States v. Suiza Foods Rather, interest.’ ’’ 14 [a]bsent a showing of corrupt failure of the Corporation and Broughton Foods government to discharge its duty, the Court, In this case, the proposed Final Company; Proposed Final Judgment in making its public interest finding, should Judgment meets the appropriate and Competitive Impact Statement ** * carefully consider the explanations of standard. The Final Judgment dissolves the government in the competitive impact the JSA. In addition, Capstar’s Notice is hereby given pursuant to the statement and its responses to comments in divestiture of KEYF-FM in Spokane will Antitrust Procedures and Penalties Act, order to determine whether those 15 U.S.C. Section 16(b) through (h), that cure the anticompetitive effects of explanations are reasonable under the a proposed Final Judgment, Stipulation Triathlon’s prior acquisitions there. The circumstances. and Competitive Impact Statement have exchanges of stations anticipated by been filed with the United States United States v. Mid-America defendants Citadel and Capstar leave Dairymen, Inc., 1977–1 Trade Cas. District Court for the Eastern District of both surviving parties with radio ¶ 61,508, at 71,980 (W.D. Mo. 1977). Kentucky, London Division in United Accordingly, with respect to the advertising market shares of States of America v. Suiza Foods adequacy of the relief secured by the approximately 40% or less in both Corporation and Broughton Foods decree, a court may not ‘‘engage in an Colorado Springs and Spokane. Company, Civil Action No. 99–CV–130. unrestricted evaluation of what relief VIII. Determinative Documents On March 18, 1999, the United States would best serve the public.’’ United filed a Complaint alleging that the States v. BNS, Inc., 858 F.2d 456, 462 There are no determinative materials proposed acquisition by Suiza Foods (9th Cir. 1988) (citing United States v. or documents within the meaning of the Corporation (‘‘Suiza’’) of the stock of Bechtel Corp., 648 F.2d 660, 666 (9th APPA that were considered by the Broughton Foods Company Cir.)); see also Microsoft, 56 F.3d at United States in formulating the (‘‘Broughton’’), would violate Section 7 1460–62. Rather, proposed Final Judgment. of the Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed on April the balancing of competing social and Respectfully submitted. 22, 1999, requires Suiza to divest the political interests affected by a proposed Karl D. Knutsen, antitrust consent decree must be left, in the Southern Belle plant and related assets first instance, to the discretion of the Attorney, Colorado Bar Reg. No. 23997, in Somerset, Kentucky, pursuant to the Attorney General. The court’s role in Merger Task Force, U.S. Department of Final Judgment. Copies of the protecting the public interest is one of Justice, Antitrust Division, 1401 H Street, Complaint, proposed Final Judgment insuring that the government has not N.W., Washington, D.C. 20530, (202) 514– and Competitive Impact Statement are breached its duty to the public in consenting 0976. available for inspection at the to the decree. The court is required to determine not whether a particular decree is Certificate of Service Department of Justice in Washington, the one that will best serve society, but D.C. in Room 200, 325 Seventh Street, whether the settlement is ‘‘within the reaches I, Karl D. Knutsen, of the Antitrust N.W., and at the Office of the Clerk of of the public interest.’’ More elaborate Division of the United States the United States District Court for the requirements might undermine the Department of Justice, do hereby certify District of the District of Columbia. effectiveness of antitrust enforcement by that true copies of the foregoing Public comment is invited within 60 consent decree.3 Amended Complaint and amended days of the date of this notice. Such The proposed Final Judgment, therefore, Competitive Impact Statement were comments, and responses thereto, will need not be certain to eliminate every served this 26th day of April, 1999, by be published in the Federal Register anticompetitive effect of a particular United States mail, to the following: and filed with the Court. Comments practice. Court approval of a final should be directed to Craig W. Conrath, judgment requires a more flexible and Debra H. Dermody, Reed, Smith, Shaw, Chief, Merger Task Force, Antitrust less strict standard than the standard & McClay, 435 Sixth Ave., Pittsburgh, Division, Department of Justice, 1401 H required for a finding of liability. ‘‘[A] PA 15219, Counsel for Citadel St. N.W., Suite 4000, Washington, D.C. proposed decree must be approved even Communications Corporation 20530 (telephone: (202) 307–0001). Constance K. Robinson, 2 119 Cong. Rec. 24598 (1973). See United States David J. Laing, Baker & McKenzie, 815 v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass. Connecticut, Washington, D.C. 20006, Director of Operations & Merger Enforcement. 1975). A ‘‘public interest’’ determination can be Counsel for Triathlon Broadcasting United States of America, Plaintiff, vs. made properly on the basis of the Competitive Company Suiza Foods Corporation, d/b/a Louis Trauth Impact Statement and Response to Comments filed Dairy, Land O’Sun Dairy, and Flav-O-Rich pursuant to the APPA. Although the APPA Neil W. Imus, Vinson & Elkins, 1455 Dairy, and Broughton Foods Company, d/b/ authorizes the use of additional procedures, 15 Pennsylvania Avenue, N.W., a Southern Belle Dairy, Defendants. Civil U.S.C. 16(f), those procedures are discretionary. A court need not invoke any of them unless it believes Washington, D.C. 20006, Counsel for Action No. 99–CV–130. Capstar Broadcasting Corporation that the comments have raised significant issues Stipulation and Order and that further proceedings would aid the court in Karl D. Knutsen resolving those issues. See H.R. Rep. 93–1463, 93rd It is stipulated by and between the Cong. 2d Sess. 8–9 (1974), Reprinted in [FR Doc. 99–12339 Filed 5–14–99; 8:45 am] undersigned parties, by their respective U.S.C.C.A.N. 6535, 6538. BILLING CODE 4410±11±M attorneys, as follows: 3 Bechtel, 648 F.2d at 666 (citations omitted) (emphasis added); see BNS, 858 F.2d at 463; United (1) The Court has jurisdiction over the States v. National Broad, Co., 449 F. Supp. 1127, 4 United States v. American Tel. and Tel. Co., 552 subject matter of this action and over 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716. F. Supp. 131, 151 (D.D.C. 1982), aff’d. sub nom. each of the parties hereto, and venue of See also Microsoft, 56 F.3d at 1461 (whether ‘‘the Maryland v. United States, 460 U.S. 1001 (1983) this action is proper in the Eastern remedies [obtained in the decree are] so (quoting Gillette Co., 406 F. Supp. at 716 (citations inconsonant with the allegations charged as to fall omitted)); United States v. Alcan Aluminum, Ltd., District of Kentucky, London Division. outside of the ‘reaches of the public interest’ ’’) 605 F. Supp. 619, 622 (W.D. Ky. 1985). Washington, (2) The parties stipulate that a Final (citations omitted). D.C. 20530 Judgment in the form hereto attached

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