31612 Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Notices

The proposed Consent Decree may be v. Ray McCune et al., Civ. Action No. The Department of Justice will receive examined at the Office of the United 2:97CV 0860B, DOJ # 90–11–2–1270. for a period of thirty (30) days from the States Attorney, Hal Boggs Federal The proposed Consent Decree may be date of this publication comments Building, 501 Magazine Street, New examined at the Office of the United relating to the Consent Decree. Orleans, Louisiana 70130; the Region VI States Attorney, District of Utah, 350 Comments should be addressed to the Office of the Environmental Protection South Main Street, Salt Lake City, Utah Assistant Attorney General of the Agency, 1445 Ross Avenue, Dallas 84107; at the Region VIII Office of the Environment and Natural Resources Texas 75202; and at the Consent Decree U.S. Environmental Protection Agency, Division, Department of Justice, Library, 1120 G Street, NW, 3rd Floor, 999 18th Street, Suite 500, North Tower, Washington, DC 20530, and should refer Washington, DC 20005, (202) 624–0892. Denver, CO 90202; and at the Consent to U.S. v. Quanex Corporation, D.J. Ref. A copy of the proposed Consent Decree Decree Library, 1120 G Street, NW, 3rd 90–5–1–1–4495. may be obtained in person or by mail Floor, Washington, DC 20005, (202) The Consent Decree may be examined from the Consent Decree Library, 1120 624–0892. Copies of the Consent at the Office of the Untied States G Street, NW, 4th Floor, Washington, Decrees may be obtained in person or by Attorney, 910 Travis, Suite 1500, DC 20005. In requesting a copy please mail from the Consent Decree Library, Houston, Texas 77208, at U.S. EPA refer to the referenced case and enclose 1120 G Street, NW, 3rd Floor, Region 6, 1445 Ross Avenue, Dallas, a check in the amount of $9.25 (25 cents Washington, DC 20005. In requesting Texas 75202, and at the Consent Decree per page reproduction costs), payable to copies, please enclose a check in the Library, 1120 G Street, NW, 3rd Floor, the Consent Decree Library. amount of $4.75 for the Ray McCune Washington, DC 20005, (202) 624–0892. Joel M. Gross, Consent Decree (25 cents per page A copy of the Consent Decree may be Chief, Environmental Enforcement Section, reproduction costs (payable to the obtained in person or by mail from the Environment and Natural Resources Division. Consent Decree Library. Consent Decree Library, 1120 G Street, [FR Doc. 99–14894 Filed 6–10–99; 8:45 am] Joel M. Gross, NW, 3rd Floor, Washington, DC 20005. BILLING CODE 4410±15±M Environmental Enforcement Section, In requesting a copy, please enclose a Environment and Natural Resources Division. check in the amount of $15.25 (25 cents [FR Doc. 99–14893 Filed 6–10–99; 8:45 am] per page reproduction cost) payable to DEPARTMENT OF JUSTICE BILLING CODE 4410±15±M the Consent Decree Library. Joel M. Gross, Notice of Consent Judgments Chief, Environmental Enforcement Section, Pursuant to the Comprehensive DEPARTMENT OF JUSTICE Environment and Natural Resources Division. Environmental Response, [FR Doc. 99–14892 Filed 6–10–99; 8:45 am] Compensation and Liability Act Notice of Lodging of Consent Decree Under the Clean Water Act BILLING CODE 4410±15±M In accordance with Departmental Policy, 28 CFR § 50.7, notice is hereby Under 28 CFR 50.7 notice is hereby given a proposed Consent Decree in given that on May 26, 1999, a proposed DEPARTMENT OF JUSTICE United States v. Ray McCune et al., Civ. Consent Decree in United States v. Antitrust Division Action No. 2:97CV 0860B was lodged in Quanex Corporation, Civil Action No. the United States District Court for the H–99–1633, was lodged with the United United States v. Capstar Broadcasting District of Utah on May 11, 1999. States District Court for the Southern Corporation and Triathlon The proposed decree settles the District of Texas. Broadcasting Company; Proposed United States’ Complaint against Ray R. In this action the United States sought Final Judgment and Competitive McCune under sections 104, 107 and civil penalties and injunctive relief for Impact Statement 113(g)(2) of the Comprehensive violations of National Pollutant Environmental Response, Compensation Discharge Elimination System (NPDES) Notice is hereby given pursuant to the and Liability Act (‘‘CERCLA’’), 42 U.S.C. permits and pollution prevention Antitrust Procedures and Penalties Act, 9604, 9607, and 9613(g)(2), for regulations at a facility located in 15 U.S.C. Section 16(b) through (h), that reimbursement of costs incurred by the Rosenberg, Fort Bend County, Texas. a proposed Final Judgment, Stipulation United States in response to the release The Consent Decree resolves allegations and Competitive Impact Statement have or threat of release of hazardous that Quanex Corporation, the facility been filed with the United States substances from the Reclaim Barrel owner until December 3, 1997, and District Court for the District of Company Site located at 8487 South Vision Metals, Inc., the facility owner Columbia in United States of America v. Redwood Road, West Jordan, Salt Lake after December 3, 1997, failed to comply Capstar Broadcasting Corporation and County, Utah (‘‘the Site’’). The proposed with NPDES permits by violating Triathlon Broadcasting Company, Civil decree provides for recovery of effluent limits, failing to monitor, failing Action No. 99–CV00993. On April 21, $10,000.00 in response costs based on to report, failing to properly operate and 1999, the United States filed a Mr. McCune’s limited financial ability maintain the facility, and failing to Complaint alleging that the proposed to fully reimburse the United States for comply with the Spill Prevention acquisition by Capstar Broadcasting response costs. Control and Countermeasure Plan Corporation (‘‘Capstar’’) of the radio The Department of Justice will regulatory requirements. The Consent assets of Triathlon Broadcasting receive, for a period of thirty (30) days Decree also resolves allegations that Company (‘‘Triathlon’’) in Wichita, from the date of this publication, Quanex failed to comply with two Kansas, would violate Section 7 of the written comments relating to the Administrative Orders. Quanex is Clayton Act, 15 U.S.C. 18. The proposed proposed Consent Decrees. Comments required to pay a civil penalty of Final Judgment, filed the same time as should be addressed to the Assistant $466,421. Vision Metals, Inc. is required the Compliant, requires Capstar to Attorney General for the Environment to pay a civil penalty of $58,907 and divest five radio stations in Wichita and Natural Resources Division, perform injunctive relief to ensure pursuant to the Final Judgment. Copies Department of Justice, Washington, DC compliance with its NPDES permit and of the Complaint, proposed Final 20530, and should refer to United States the pollution prevention regulations. Judgment and Competitive Impact

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Statement are available for inspection at proposed final Judgment agreed upon in this Final Judgment pending its the Department of Justice in writing by the parties and submitted to approval by the Court; Washington, DC in Room 215, 325 the Court. And Whereas, the essence of this Seventh Street, NW, and at the Office of 5. In the event plaintiff withdraws its Final Judgment is the prompt and the Clerk of the United States District consent, as provided in paragraph 2 certain divestiture of certain assets to Court for the District of the District of above, or in the event the proposed assure that competition is not Columbia. Final Judgment is not entered pursuant substantially lessened; Public comment is invited within 60 to this Stipulation, the time has expired And Whereas, plaintiff requires days of the date of this notice. Such for all appeals of any Court ruling Defendants to make certain divestitures comments, and responses thereto, will declining entry of the proposed Final for the purpose of remedying the loss of be published in the Federal Register Judgment, and the Court has not competition alleged in the complaint; and filed with the Court. Comments otherwise ordered continued And Whereas, Defendants have should be directed to Craig W. Conrath, compliance with the terms and represented to the plaintiff that the Chief Merger Task Force, Antitrust provisions of the proposed Final divestitures ordered herein can and will Division, Department of Justice, 1401 H Judgment, then the parties are released be made and that Defendants will not St. NW., Suite 4000, Washington, DC from all further obligations under this later raise claims of hardship, 20530 (telephone: (202) 307–0001). Stipulation, and the making of this contractual bar, or difficulty as grounds Constance K. Robinson, Stipulation shall be without prejudice to for asking the Court to delay or modify Director of Operations & Merger Enforcement. any party in this or any other the divestiture described below; proceeding. Now, Therefore, before the taking of United States of America, United States any testimony, and without trial or Department of Justice, Antitrust Division, 6. Defendants represent that the 4000 City Center Building, Washington, DC divestitures ordered in the proposed adjudication of any issue of fact or law 20530, Plaintiff, v. Capstar Broadcasting Final Judgment can and will be made, herein, and upon consent of the parties Corporation, 600 Congress Ave. Suite 1400, and that defendants will later raise no hereto, it is hereby ordered, adjudged, Austin, TX 78701 and Triathlon Broadcasting claim of hardship or difficulty as and decreed as follows. Company, 750 B Symphony Towers, Suite 1920, San Diego, CA 92101, Defendants. grounds for asking the Court to modify I. Jurisdiction any of the divestiture provisions [Civil Action No. 990993] This Court has jurisdiction over each contained therein. of the Defendants and over the subject Stipulation Dated: April 20, 1999. matter of this action, and Defendants It is stipulated by and between the For Plaintiff United States of America. have agreed to waive any objection to undersigned parties by their respective Karl D. Knutsen, personal jurisdiction or venue. The attorneys, as follows: United States Department of Justice, Antitrust Complaint states a claim upon which 1. This Court has jurisdiction over the Division, Merger Task Force, 1401 H Street, relief may be granted against the subject matter of this action and the N.W., Washington, D.C. 20530, (202) 514– Defendants, as hereinafter defined, parties have agreed to waive all 0976. under Section 7 of the Clayton Act, as objections to personal jurisdiction and For Defendant Capstar Broadcasting amended, 15 U.S.C. 18. venue in the United States District Court Corporation. II. Definitions for the District of Columbia. Neil W. Imus, 2. The parties stipulate that a Final Vinson & Elkins L.L.P., 1455 Pennsylvania As used in this Final Judgment: Judgment in the form hereto attached Ave., N.W., Washington, D.C. 20006, (202) A. ‘‘Capstar’’ means defendant may be filed and entered by the Court, 639–6675. Capstar Broadcasting Corporation, a upon the motion of any party or upon Delaware corporation with its the Court’s own motion, at any time For Defendant Triathlon Broadcasting headquarters in Austin, Texas, and its Company. after compliance with the requirements successors, assigns, subsidiaries, of the Antitrust Procedures and David J. Laing, divisions, groups, affiliates, Penalties Act, 15 U.S.C. 16, and without Baker & McKenzie, 815 Connecticut Ave., partnerships and joint ventures, and further notice to any party or other NW., Washington, DC 20006, (202) 452–7023. directors, officers, managers, agents, and proceedings, provided that plaintiff has United States of America, Plaintiff, v. employees, including but not limited to not withdrawn its consent, which it may Capstar Broadcasting Corporation, and Hicks, Muse, Tate, & Furst Incorporated do at any time before the entry of the Triathlon Broadcasting Company, (‘‘Hicks-Muse’’), a Delaware corporation proposed Final Judgment by serving Defendants. with its headquarters in Dallas, Texas. notice thereof on defendants and by [Civil Action No. 99 0993] B. ‘‘Triathlon’’ means defendant filing that notice with the Court. Final Judgment Triathlon Broadcasting Company, a 3. Defendants shall abide by and Delaware corporation with its comply with the provisions of the Whereas, plaintiff, the United States headquarters in San Diego, California, proposed Final Judgment pending entry of America, filed its complaint in this and its successors, assigns, subsidiaries, of the Final Judgment by the Court, or action on April 21, 1999, and plaintiff divisions, groups, affiliates, until expiration of time for all appeals and defendants Capstar and Triathlon partnerships and joint ventures, and of any Court ruling declining entry of by their respective attorneys, having directors, officers, managers, agents, and the proposed Final Judgment, and shall, consented to the entry of this Final employees. from the date of the signing of this Judgment without trial or adjudication C. ‘‘Defendants’’ means Capstar and Stipulation by the parties, comply with of any issue of fact or law herein, and Triathlon. all the terms and provisions of the without this Final Judgment D. ‘‘Antitrust Division’’ means the proposed Final Judgment as though the constituting any evidence against or an Antitrust Division of the United States same were in full force and effect as an admission by any party with respect to Department of Justice. Order of the Court. any issue of law or fact herein; E. ‘‘Radio Assets’’ means all of the 4. This Stipulation shall apply with And Whereas, these Defendants have assets, tangible or intangible, used in the equal force and effect to any amended agreed to be bound by the provisions of operation of the radio stations KEYN–

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FM, KWSJ–FM, KNSS–AM, KFH–AM, this Final Judgment, or by the Trustee V. Appointment of Trustee and KQAM–AM, that sell advertising appointed pursuant to Section V, shall A. In the event that Capstar has not time in Wichita, Kansas, including all include all the Radio Assets and shall be divested the Radio Assets in the time real property (owned or leased) used in accomplished in such a way as to satisfy period specified in § IV above, Henry the operation of these stations, all plaintiff, in its sole discretion, that the M. Rivera shall, subject to the prior broadcast equipment, office equipment, Radio Assets can and will be used by an approval of the FCC, become Trustee office furniture, fixtures, materials, Acquirer as a viable and ongoing radio (the ‘‘Trustee’’) to effect the operation supplies, and other tangible property business. The divestiture, whether and sale of the Radio Assets pursuant to used in the operation of these stations; pursuant to section IV or section V of an FCC Trust Agreement submitted by all licenses, permits, authorizations, and this Final Judgment, shall be made (1) Capstar to the FCC, as amended, and applications therefor issued by the to an Acquirer that, in the sole judgment attached to this proposed Final Federal Communications Commission of plaintiff, has the capability and the Judgment as Exhibit A (the ‘‘FCC Trust (‘‘FCC’’) and other government agencies intent of completing effectively, and has Agreement’’). In the event of Mr. related to these stations; all contracts, the managerial, operational, and Rivera’s resignation, incapacity to act, agreements, leases and commitments of financial capability to compete effective death, or insolvency, the Court shall Defendants relating to their operations; as a radio operator in the Wichita area; appoint, on application of plaintiff and all trademarks, service marks, trade and (2) pursuant to agreements the subject to such prior approvals as may names, copyrights, patents, slogans, terms of which shall not, in the sole be required, a Trustee selected by programming materials, and judgment of plaintiff, interfere with the plaintiff, to effect the divestiture of the promotional materials relating to these ability of the Acquirer to compete assets. stations; and all logs and other records effectively. B. After the Trustee’s appointment maintained by the operator or owner in B. Defendant Capstar agrees to use its has become effective, only the Trustee connection with its business, except best efforts to divest the Radio Assets, shall have the right to sell the Radio that in the case of KNSS–AM, the and to obtain all regulatory approvals Assets. The Trustee shall have the divestiture may include only those necessary for such divestiture, as power and authority to accomplish the assets necessary to continue the expeditiously as possible. sale pursuant to the conditions of the transmitting, programming, and selling C. In accomplishing the divestiture FCC Trust Agreement. of that station in its present form. ordered by the Final Judgment, C. The Trustee shall serve at the cost F. ‘‘Acquirer’’ means the entity to defendant Capstar promptly shall make and expense of defendant Capstar, on whom defendant Capstar divests the known, by usual and customary means, such terms and conditions contained in Radio Assets. the availability of the Radio Assets. the FCC Trust Agreement or as the Court G. ‘‘Wichita’’ means the Wichita, Defendant Capstar shall inform any Kansas Metropolitan Survey Area, may prescribe, and shall account for all person making an inquiry regarding a monies derived from the sale of the which includes Sedgwick, Harvey and possible purchase that the sale is being Butler Counties, Kansas. assets sold by the Trustee and all costs made pursuant to this Final Judgment and expenses so incurred pursuant to III. Applicability and provide each person with a copy of the attached FCC Trust Agreement. A. The provisions of this Final this Final Judgment. Defendant Capstar D. Defendants shall take no action to Judgment apply to the Defendants, their shall make known to any person making interfere with or impede the Trustee’s successors and assigns, their an inquiry regarding a possible purchase accomplishment of the divestiture of the subsidiaries, directors, officers, of the Radio Assets described in Section Radio Assets, and shall use their best managers, agents, and employees, and II that the Radio Assets are being offered efforts to assist the Trustee in all other persons in active concert or for sale. Capstar shall also offer to accomplishing the required divestiture, participation with any of them who furnish all prospective purchasers, including its best efforts to effectuate all shall have received actual notice of this subject to customary confidentiality necessary regulatory approvals. Subject Final Judgment by personal service or assurances, all information regarding to a customary confidentiality otherwise, specifically including any the Radio Assets customarily provided agreement, the Trustee shall have full trustee or trustees appointed by in a due diligence process, except such and complete access to the personnel, defendant pursuant to an FCC Trust information that is subject to attorney- books, records and facilities related to Agreement (as defined in Section V(A)) client privilege or attorney-work the Radio Assets, and, at the Trustee’s applicable to the Radio Assets. product privilege. Defendant Capstar request, Defendants shall develop such B. Defendant Capstar shall require, as shall make available such information to financial or other information as may be a condition of the sale or other plaintiff at the same time that such necessary for the divestiture of the disposition of any of the Radio Assets, information is made available to any Radio Assets. The Trustee shall permit that the Acquirer or Acquirers agree to other person. prospective purchasers of the Radio be bound by the provisions of this Final D. In accomplishing the divestiture Assets to have access to personnel and Judgment. ordered by this Section IV, defendant to make such inspection of physical Capstar shall permit prospective facilities and any and all financial, IV. Divestiture of Radio Assets purchasers of the Radio Assets to have operational, or other documents and A. Capstar is hereby ordered and access to personnel and to make such information as may be relevant to the directed in accordance with the terms of inspection of assets, and any and all divestiture required by this Final this Final Judgment to divest the Radio financial, operational, and or other Judgment. Assets to (i) an Acquirer acceptable to documents and information, as is E. After his appointment becomes the Antitrust Division at its sole customary in a due diligence process. effective, the Trustee shall file reports discretion or (ii) the Trustee identified E. Defendant Capstar shall not pursuant to this Final Judgment and the pursuant to § V at the same time it interfere with any efforts by any FCC Trust Agreement with defendant acquires Triathlon. Unless plaintiff Acquirer to employ the general manager Capstar, the plaintiff, and the Court, otherwise consents in writing, the or any other employee of the Radio setting forth the Trustee’s efforts to divestiture pursuant to the section IV of Assets. accomplish divestiture of the Radio

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Assets as contemplated under this Final Rodino Antitrust Improvements Act of B. Defendants shall use all reasonable Judgment; provided, however, that to 1976, as amended, 15 U.S.C. 18a (the efforts to maintain and increase sales of the extent that such reports contain ‘‘HSR Act’’). advertising time by the Radio Assets, information that the Trustee deems Notification under this section shall and shall maintain at 1997, 1998, or confidential, such reports shall not be be provided to the Antitrust Division in previously approved levels for 1999, filed in the public docket of the Court. the same format as, and per the whichever are higher, promotional Such reports shall include the name, instructions relating to the Notification advertising, sales, marketing and address and telephone number of each and Report Form set forth in the merchandising support for such radio person who, during the preceding Appendix to Part 803 of Title 16 of the stations. month, made an offer to acquire, Code of Federal Regulations as C. Defendants shall take all steps expressed an interest in acquiring, amended, except that the information necessary to ensure that the assets used entered into negotiations to acquire, or requested in Items 5–9 of the in the operation of the Radio Assets are was contacted or made an inquiry about instructions must be provided only fully maintained. The sales and acquiring, any interest in the Radio about the sales of radio advertising time marketing employees of the Radio Assets, and shall describe in detail each in Wichita. Notification shall be Assets shall not be transferred or contact with any such person during provided at least thirty (30) days prior reassigned to any other station, except that period. The Trustee shall maintain to the acquisition of any such interest, for transfer bids initiated by employees full records of all efforts made to divest and shall include, beyond what may be pursuant to each defendant’s regular, the Radio Assets. required by the applicable instructions, established job posting policies, F. Within four (4) months after the the names of the principal provided that Defendants give plaintiff date of entry of this proposed Final representatives of the parties to the and Acquirer ten (10) days’ notice of Judgment, if the Trustee has not agreement who negotiated the such transfer. accomplished the divestiture required agreement, and any management or D. Defendant Capstar shall not, except by Section V of this Final Judgment, the strategic plans discussing the proposed as part of a divestiture approved by Trustee shall promptly file with the transaction. If within the 30-day period plaintiff, sell any Radio Assets. Court a report setting forth: (1) the after notification, representatives of the E. Defendants shall take no action that Trustee’s efforts to accomplish the Antitrust Division make a written would jeopardize the sale of the Radio required divestiture, (2) the reasons, in request for additional information, Assets. the Trustee’s judgment, why the Defendant Capstar shall not F. Defendant Capstar shall appoint a required divestiture has not been consummate the proposed transaction person or persons to oversee the assets accomplished, and (3) the Trustee’s or agreement until twenty (20) days after to be held separate who will be recommendations; provided, however, submitting all such additional responsible for Defendant’s compliance that to the extent such reports contain information. Early termination of the with Section VI of this Final Judgment. information that the Trustee deems waiting periods in this paragraph may confidential, such reports shall not be VIII. Financing be requested and, where appropriate, filed in the public docket of the Court. Defendant Capstar is ordered and granted in the same manner as is The Trustee at the same time shall directed not to finance all or any part of applicable under the requirements and furnish such reports to the plaintiff and any purchase by an Acquirer made provisions of the HSR Act and rules to defendant Capstar, which shall have pursuant to Sections IV or V or this the right to be heard and to make promulgated thereunder. This Section Final Judgment. additional recommendations. The Court shall be broadly construed, and any IX. Compliance Inspection shall thereafter enter such orders as it ambiguity or uncertainty regarding the deems appropriate to accomplish the filing of notice under this Section shall For purposes of determining or purpose of this Final Judgment, which be resolved in favor of filing notice. securing compliance with the Final shall, if necessary, include extending VII. Preservation of Assets/Hold Judgment or determining whether the the term of the Trustee’s appointment Separate Final Judgment should be modified or after all applicable government terminated and subject to any legally approvals are obtained. Until the divestiture of the Radio recognized privilege, from time to time: G. Upon divestiture of the radio Assets required by Sections IV or V of A. duly authorized representatives of assets, the FCC Trust will be deemed the Final Judgment has been the plaintiff, upon the written request of terminated and the Trustee discharged. accomplished: the Assistant Attorney General in charge A. Defendants shall take all steps of the Antitrust Division, and on VI. Notice necessary to operate the Radio Assets as reasonable notice to the Defendants Capstar shall provide advance separate, independent, ongoing, made to their principal offices, shall be notification of the Antitrust Division economically viable and active permitted: when it directly or indirectly acquires competitors to the other stations in (1) Access during office hours of the any assets of or any interest (including Wichita, Kansas, and shall take all steps Defendants to inspect and copy all books, any financial, security, loan, equity or necessary to ensure that, except as ledgers, accounts, correspondence, management interest) in any broadcast necessary to comply with Section IV memoranda, and other records and radio station that sells advertising time and paragraphs B and C of this Section documents in the possession or under the in Wichita, Kansas, or enters into any of the Final Judgment, the management control of the Defendants, who may have joint sales agreement or any cooperative of said stations, including the counsel present, relating to the matters selling arrangement with any other performance of decision-making contained in this Final Judgment; and operator of radio stations serving functions regarding marketing and (2) Subject to the reasonable convenience of the Defendants and without restraint or listeners in Wichita, Kansas. This pricing, will be kept separate and apart interference from any of them, to interview, obligation to provide notice is met from, and not influenced by, defendant either informally or on the record, their under this section when a transaction is Capstar in the case of Triathlon stations officers, employees, and agents, who may subject to the reporting and waiting and defendant Triathlon in the case of have counsel present, regarding any such period requirements of the Hart-Scott- Capstar stations. matters.

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B. Upon the written request of the B. Within twenty (20) calendar days Broadcasting Company, a Delaware Assistant Attorney General in charge of of the filing of this Final Judgment, corporation (‘‘Triathlon’’), Merger Sub will be the Antitrust Division, made to the defendant Capstar shall deliver to merged (the ‘‘Merger’’) with and into Triathlon, with Triathlon being the surviving Defendants’ principal offices, the plaintiff an affidavit which describes in corporation and an indirect wholly-owned Defendants shall submit written reports, reasonable detail all actions defendant subsidiary of Beneficiary. Triathlon, through under oath if requested, with respect to Capstar has taken and all steps its subsidiaries, holds various licenses, any matter contained in the Final defendant Triathlon has implemented permits, and authorizations issued by the Judgment. on an on-going basis to preserve the FCC with respect to certain radio stations in C. No information or documents Radio Assets describing any changes to the Wichita Market listed on Annex B hereto obtained by the means provided in the efforts and actions outlined in its (the ‘‘Triathlon Wichita Stations’’). The earlier affidavit(s) filed pursuant to this Merger will result in the attribution to Section IX or X of this Final Judgment Beneficiary of the Triathlon Wichita Stations. shall be divulged by a representative of section within fifteen (15) calendar days Accordingly, each reference in this Trust the plaintiff to any person other than a after such change is implemented. Agreement to Beneficiary shall be deemed, duly authorized representative of the C. Defendant Capstar shall preserve following the consummation of the merger, to Executive Branch of the United States, all records of all efforts to preserve the include Triathlon, and the Capstar Wichita except in the course of legal proceedings Radio Assets and to divest the Radio Station and the Triathlon Wichita Stations to which the plaintiff is a party Assets. shall be referred to collectively as the ‘‘Stations.’’ (including grand jury proceedings), or XI. Retention of Jurisdiction C. The Communications Act of 1934, as for the purpose of securing compliance Jurisdiction is retained by this Court amended, and the rules, regulations, and with this Final Judgment, or as policies of the FCC (collectively, the otherwise required by law. for the purpose of enabling any of the ‘‘Communications Act’’) do not permit parties to this Final Judgment to apply D. If at the time information or Beneficiary to own and operate all of the to this Court at any time for such further documents are furnished by the Stations. Beneficiary desires to enter into this orders and directions as may be Defendants to the plaintiff, the Trust Agreement to facilitate consummation necessary or appropriate for the of the Merger by assuring that such Defendants represent and identify in construction or carrying out of this Final consummation will not result in the writing the material in any such Judgment, for the modification of any of attribution to Beneficiary of radio stations information or documents to which a the provisions hereof, for the with overlapping signal contours in the claim of protection may be asserted Wichita Market in contravention of the enforcement of compliance herewith, under Rule 26(c)(7) of the Federal Rules Communications Act. and for the punishment of any of civil Procedure, and the Defendants D. Interim acquisition by the Trustee of the violations hereof. mark each pertinent page of such Station Assets (as hereinafter defined) for the material, ‘‘Subject to claim of protection XII. Termination purpose of holding and operating the same for productive business use and selling the under Rule 26(c)(7) of the Federal Rules Unless this Court grants an extension, Station Assets to a government-approved of Civil Procedure,’’ then ten (10) this Final Judgment will expire upon buyer or buyers pursuant to the Final calendar days’ notice shall be given by the tenth anniversary of the date of its Judgment in United States v. Capstar the plaintiff to the Defendants prior to entry. Broadcasting Corporation and Triathlon divulging such material in any legal Broadcasting Company, C.A. No. lllll proceeding (other than a grand jury XIII. Public Interest (D.D.C. Apr. ll, 1999) as proposed, entered proceeding) to which the Defendants are Entry of this Final Judgment is in the or modified (the ‘‘Final Judgment’’) not a party. (proposed Final Judgment attached hereto), public interest. provided that the Trustee continues to X. Affidavits Dated: llllllllllllllll operate the Stations until such a sale can be lllllllllllllllllllll consummated, would provide an appropriate A. Within twenty (20) calendar days United States District Judge mechanism to facilitate consummation of the of the filing of this Final Judgment and Merger while complying with the laws and every thirty (30) calendar days thereafter ATTACHMENT A regulations relating to transactions of this until the divestiture has been Wichita Stations Trust Agreement type, and accordingly the Trustee and Beneficiary desire to associate together for completed, whether pursuant to Section THIS TRUST AGREEMENT (the ‘‘Trust IV or Section V of this Final Judgment, the joint conduct of the business of holding Agreement’’) is entered into as of April 30, and operating such Station Assets. defendant Capstar shall deliver to 1999, and shall be effective April 30, 1999, Now, Therefore, in consideration of the plaintiff an affidavit as to the fact and by and between Capstar Broadcasting recitals and of the respective agreements and manner of defendant’s compliance with Corporation, a Delaware corporation covenants contained herein, and other good Section IV or V of this Final Judgment. (‘‘Beneficiary’’), and Henry M. Rivera (the and valuable consideration, the receipt and Each such affidavit shall include, inter ‘‘Trustee’’). sufficiency of which are hereby alia, the name, address and telephone Recitals acknowledged, the parties, intending to be legally bound hereby, agree as follows: number of each person who, at any time A. Beneficiary, through subsidiaries, holds after the period covered by the last such various licenses, permits and authorizations Agreements report, was contacted by defendant, or issued by the Federal Communications 1. Creation and Purpose of The Wichita its representatives, made an offer to Commission (the ‘‘FCC’’) with respect to the Stations Trust. Subject to the terms and acquire, expressed an interest in radio station in the Wichita, Kansas radio conditions hereof, a trust in respect of the acquiring, entered into negotiations to market (the ‘‘Wichita Market’’) listed on Stations is hereby created and established, to acquire, or made an inquiry about Annex A hereto (the ‘‘Capstar Wichita be known as the ‘‘Wichita Stations Trust,’’ acquiring, any interest in the Radio Station’’). and the Trustee hereby accepts the trust Assets, and shall describe in detail each B. Pursuant to the Agreement and Plan of created hereby and agrees to serve as trustee Merger dated as of July 23, 1998 (the contact with any such person during hereunder. The trust created hereby shall be ‘‘Purchase Agreement’’), among Capstar irrevocable until such time as the Trustee that period. Each such affidavit shall Radio Broadcasting Partners, Inc., TBC Radio sells the Station Assets to a government- also include a description of the efforts Acquisition Corp., a wholly-owned approved buyer or buyers. that defendant Capstar has taken to subsidiary of Capstar Radio Broadcasting 2. Assets to be Conveyed; Assumption of solicit a buyer for the Radio Assets. Partners, Inc. (‘‘Merger Sub’’), and Triathlon Obligations.

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(a) From time to time on or before (x) All of Beneficiary’s rights under Trustee under Section III(A) thereof effective consummation of the Merger, Beneficiary manufacturers’ and vendors’ warranties this date, consistent with the obligations shall convey, transfer, assign, and deliver to relating to items included in the Station assumed by Beneficiary under the Trustee, and Trustee shall acquire and Assets and all similar rights against third Stipulation and Order (attached hereto). assume from Beneficiary, all of Beneficiary’s parties relating to items included in the Without limiting the generality of the right, title, interest, and obligations in and to Station Assets to the extent contractually foregoing, the Trustee shall have the power all of the assets, properties, contracts, leases, assignable; and and authority to hire at the cost and expense and agreements that are used, held for use, (xi) All intangible assets of Beneficiary of Beneficiary any investment bankers, useful or necessary in the conduct of the relating to any Station or the business and attorneys or other agents reasonably business and operation of each Station as of operation of any Station not specifically necessary, in the judgment of the Trustee, to the date of this Trust Agreement, including described above, including goodwill, and all assist in the sale of the Station Assets, and the following assets: other assets used or held for use in such professionals or agents shall be solely (i) All of Beneficiary’s right, title and connection with any Station. accountable to the Trustee. The Trustee shall interest in and to the licenses, permits and The assets to be transferred to the Trustee have the power and authority to accomplish other authorizations issued by any hereunder are hereinafter collectively the sale of the Station Assets at the earliest governmental authority and used, held for referred to as the ‘‘Station Assets.’’ possible time to any purchaser approved by use, useful or necessary in the conduct of the Notwithstanding this Section 2(a), the Department of Justice (‘‘DOJ’’) who the business and operation of any Station, beneficiary and Trustee acknowledge that the DOJ determines has the intent and including the call letters of each Station and Station Assets shall include only those assets managerial, operational and financial any applications for such licenses, permits that Beneficiary would have sold to a third capability to compete effectively as a radio and authorizations; party in an arms-length transaction involving station operator in the Wichita Market. (ii) All of Beneficiary’s right, title and the Stations consistent with the Final Beneficiary shall not take any action to interest in and all to all real property, Judgment. The Trustee shall retain and hold jeopardize the Trustee’s sale of the Station including leasehold interests and easements, the Station Assets only in accordance with Assets, but shall use its best efforts to assist used, held for use, useful or necessary in the the terms and conditions set forth in this the Trustee in accomplishing the required conduct of the business and operation of any Trust Agreement. sale, including its best efforts to effect all Station; (b) The Trustee shall assume and be solely regulatory approvals. The Trustee and (iii) All equipment, office furniture and responsible for the payment, performance Beneficiary shall permit prospective fixtures, office materials and supplies, and discharge of all of Beneficiary’s purchasers of the Stations to have access to inventory, spare parts, motor vehicles and liabilities, obligations, and duties under or in personnel and to make such inspection of other tangible personal property of every respect of the Assumed Contracts that relate physical facilities and any and all financial, kind and description, owned, leased or held to and accrue in the period after transfer of operational and other documents and by Beneficiary and used, held for use, useful the Station Assets. Except as specifically information as may be relevant to the sale of or necessary in the conduct of the business provided in this Trust Agreement, the the Station Assets. To facilitate the sale of the and operation of the Stations; Trustee shall not be liable for and shall not Station Assets, the Trustee may request in (iv) All cash in each Station’s operating assume any liabilities, obligations, or duties writing from Beneficiary such bank accounts; of Beneficiary (whether known or unknown, representations and warranties, consents, (v) All accounts receivable arising out of matured or unmatured, or fixed or information, covenants and indemnities the operation of each Station; contingent). (which may be directly provided by (vi) All of Beneficiary’s rights under and (c) Prior to the date hereof, Beneficiary Beneficiary to a buyer, as negotiated and interest in all contracts relating to the shall have obtained policies of insurance, or determined by the Trustee, so long as notice conduct of the business of any Station (the procured the amendment of or riders to and copies of any such communications are ‘‘Assumed Contracts’’), and any contract for existing policies of insurance, to provide given by Beneficiary to the Trustee) regarding the sale of the Stations as contemplated by insurance coverage related to the Station such sale, and such request shall not be Section 3; Assets under the umbrella policies currently unreasonably denied. (vii) All programs and programming held by Beneficiary. All such policies shall (ii) In fulfilling its obligations to effectuate materials of whatever form or nature owned name the Trustee as the insured or an the sale of the Station Assets, the Trustee by Beneficiary and used or held for use on additional insured and shall not be canceled shall take all actions necessary or appropriate or by any Station; or amended without thirty (30) days prior to effectuate the transfer of title to the Station (viii) All of Beneficiary’s rights, title and written notice to the Trustee. The Trustee is Assets held by the Trustee pursuant to this interest in and to the trademarks, trade hereby authorized to make payment of all Trust Agreement to (and assumption of the names, service marks, franchises, copyrights, premiums, and all deductibles and excesses, liabilities, obligations and commitments of including registrations and applications for related to such policies of insurance in the the Station Assets by) an unaffiliated third registration of any of them and good will same manner as any other expense in the party. In this regard, the Trustee shall enter related thereto, jingles, logos, slogans, ordinary course of business of the Stations. into appropriate agreements and submit and licenses, permits and privileges owned or 3. Management and Other Actions by fully prosecute appropriate applications to held by Beneficiary and used, held for use, Trustee. the FCC requesting approval to assign the useful or necessary in the conduct of the (A) The Wichita Stations Trust is Station Assets. The Trustee also shall seek business and operation of any Station; authorized to carry on business. During the and obtain the prior approval of the DOJ for (ix) All files, records, books of account, term of this Trust Agreement, the right to the sale of the Station Assets. Beneficiary computer programs and software and logs manage and direct the management of the shall have the right to request the Trustee to relating to the operation of any Station, business of the Stations shall be solely vested sell the Station Assets to an unaffiliated third including payable records, receivable in the Trustee, subject to the following: party it a binding contract (an ‘‘Existing Sale records, invoices, statements, traffic material, (i) The Trustee shall have the obligation to Agreement’’) has been entered into, but not programming information and studies, consummate the sale of the Station Assets consummated, prior to the effective date of technical information and engineering data, within four (4) months from the date of the this Trust Agreement. If the DOJ concurs news and advertising studies and entry of the Final Judgment, pursuant to the with such sale, the Trustee shall take all consultants’ reports, ratings reports, conditions contained herein and at a price necessary and appropriate actions to marketing and demographic data, sales that renders to Beneficiary the maximum effectuate the sale as provided herein and correspondence, lists of advertisers, cash present value for the Station Assets. The therein, including without limitation by promotional materials, credit and sales Trustee has read that certain Stipulation and accepting the assignment of the Existing Sale reports, budgets, financial reports and Order and the proposed Final Judgment Agreement. projections, sales, operating and business attached thereto which Beneficiary executed (iii) The Trustee shall file monthly reports plans, filings with the FCC and original on April ll, 1999, in the Civil Action with Beneficiary and the DOJ setting forth the executed copies of all written contracts to be styled ‘‘United States v. llllll,’’ Trustee’s efforts to sell the Station Assets as assigned hereunder. which Final Judgment shall apply to the contemplated by this Trust Agreement. Such

VerDate 06-MAY-99 16:01 Jun 10, 1999 Jkt 183247 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\A11JN3.202 pfrm07 PsN: 11JNN1 31618 Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Notices reports shall be designated confidential and (vi) The Trustee shall conduct the under any of Beneficiary’s employee benefit shall include the name, address and operations of the Stations in accordance with plans, programs or arrangements, whether telephone number of each person who, its duties as a licensee of the FCC. In such liabilities or obligations arise, or relate during the preceding month, made an offer addition, the Trustee shall, within fifteen (15) to a period, prior or subsequent to the to acquire, expressed an interest in acquiring, days of the end of each calendar month, effective date of this Trust Agreement, except entered into negotiations to acquire, or was provide to Beneficiary’s Chief Financial for liabilities or obligations caused by contacted or made an inquiry about Officer such monthly financial reports Trustee’s own gross negligence or willful acquiring, any interest in the Station Assets, consisting of unaudited balance sheets of the misconduct. All liabilities or obligations that and shall describe in detail each contact with Stations and related statements of operations relate to or arise under any of Beneficiary’s any such person during that period. The and cash flows for the month and three- employee benefit plans, programs or Trustee shall maintain full records of all month period then ended as shall be arrangements, except for liabilities or efforts undertaken to sell the Station Assets. necessary for Beneficiary to meet its financial obligations caused by Trustee’s own gross If the Trustee has failed to consummate the reporting requirements to its accountants, negligence or willful misconduct, shall sale of the Station Assets within four (4) lenders, the Securities and Exchange remain the sole and complete responsibility months from the date of the entry of the Final Commission and any other governmental of Beneficiary and shall be subject to the Judgment, the Trustee shall promptly authorities of competent jurisdiction. In no indemnification provided in Section 4(c) of produce a report stamped confidential to case shall such information be provided to this Trust Agreement. Beneficiary, the DOJ and the Court setting Beneficiary’s employees who are involved in (d) To the extent that the Trustee forth (1) the Trustee’s efforts to sell the the management or operation of Beneficiary’s determines in his discretion that Station Assets; (2) the reasons, in the radio stations in the Wichita Market. management and operation of the Stations Trustee’s judgment, why the required sale (vii) Any employee hired by the Trustee consistent with past practice or that payment has not been consummated; and (3) the who is not employed at the Stations as of the of the charges and other expenses set forth Trustee’s recommendations. effective date of this Trust Agreement shall in Section 4(c) requires funds in excess of the (iv) Within five (5) business days following not be a 1% or greater shareholder, director, ordinary cash flow of the Stations (as execution of a binding agreement for the sale officer, or employee of Beneficiary or its diminished by any prior remittances of cash of the Station Assets, including all affiliates, and may not have any business and accumulations from operations in excess of contemplated ancillary agreements (e.g., familial relationship (as defined in the FCC the actual and projected expenses as financing agreements), to effect, in whole or Policy Statement in MM Docket No. 85–218, determined by the Trustee in his sole in part, the sale of the Station Assets, the FCC 86–67 (March 17, 1986)) with discretion (‘‘Excess Cash Flow’’), Beneficiary Trustee shall notify Beneficiary and the DOJ Beneficiary or with any 1% or greater agrees to provide a line of credit to Trustee of the proposed sale. The notice (as provided shareholder, director, officer, or employee of in the amount of $250,000. Beneficiary shall for herein) shall set forth the details of the Beneficiary or its affiliates. not communicate directly or indirectly with proposed transaction and list the name, (b) The trustee shall cause any employee the Trustee about, or participate with the address and telephone number of each hired by him pursuant to Section 3(a)(vii) Trustee in making, any decision to draw on person not previously identified who offered and any person previously employed by the line of credit or as to when or how the to, or expressed an interest in or desire to, acquire any ownership interest in the Station Beneficiary whom the Trustee elects to funds will be used. The Trustee may draw on Assets, together with the full details of same. retain, to execute and deliver to the Trustee the line of credit by making a written draft Within fifteen (15) calendar days of receipt an agreement, in form and substance on Beneficiary for a specific amount of funds. by the DOJ, the DOJ may request from acceptable to the Trustee, pursuant to which Beneficiary shall, within ten days of receipt Beneficiary, the proposed purchaser, any such employee agrees to comply with the of such draft, provide such funds to Trustee other third party, or the Trustee, additional rules, regulations and policies of the FCC, in the amount requested, up to the limit of information concerning the proposed sale, including without limitation all rules, the line of credit. The outstanding principal the proposed purchaser and any other regulations and policies governing balance under the line of credit shall bear potential purchaser. Beneficiary and the communications among such employee and interest at a rate equal to the rate in effect Trustee shall furnish the requested Beneficiary or its officers, directors, under Beneficiary’s credit facility at the time information within fifteen (15) calendar days employees, and affiliates, regarding the the Trustee draws on such line of credit. The of receipt of the request. Within thirty (30) Stations and their management and principal amount of any drawings on the line calendar days after receipt of the notice or operations. of credit, together with accrued and unpaid within twenty (20) calendar days after the (c) Effective as of the effective date of this interest thereon, shall be paid from (i) Excess DOJ has been provided the additional Trust Agreement, the Trustee will hire on Cash Flow and (ii) if any balance is information, whichever is later, the DOJ shall behalf of the Wichita Stations Trust those outstanding upon completion of any sale of provide written notice to Beneficiary and the current employees of the Stations on the the Station Assets pursuant to Section 3, then Trustee, stating whether or not it objects to same terms and conditions as such prior to any distribution contemplated by the proposed sale. If the DOJ fails to object employees were employed by Beneficiary, Section 5(b), from the proceeds of any such within the period specified, or if the DOJ provided that the Trustee is not required to sale. All amounts paid under this Section provides written notice that it does not provide such employees with any medical, 3(d) shall be applied first to all interest then object, then the DOJ will be deemed to have pension, insurance or other employee benefit accrued and unpaid hereunder, and the approved the sale pursuant to the trust plans, programs or arrangements. To the balance, if any, to principal. agreement. Beneficiary may only object to the extent that Beneficiary provides such (e) To the extent that the Stations’ sale where the Trustee has acted with employees of the Wichita Stations Trust with operations generate Excess Cash Flow, such malfeasance. group medical, group insurance and/or Excess Cash Flow shall first be applied to (v) The Trustee shall have absolute and pension plan benefits on or after the date of repay amounts due to Beneficiary under the complete control over the operations of the this Trust Agreement through plans line of credit provided for in Section 3(d), Station Assets pending their sale. The maintained by Beneficiary for its employees, and thereafter shall be remitted to Trustee shall operate the Stations as separate, the Trustee shall within such reasonable time Beneficiary from time to time as the trustee independent, ongoing, economically viable as deemed necessary or appropriate by shall determine. and active competitors to Beneficiary, and Beneficiary provide to Beneficiary or its (f) No person other than the Trustee or the Trustee shall ensure that the management designee such reports, data or other managers designated by the Trustee shall of the Stations is kept separate and apart information as Beneficiary or its designee have any authority with respect to the from, and not influenced by, Beneficiary. The shall Beneficiary for purposes of management of the Stations or Station Assets Trustee shall use all reasonable efforts to administering such plans or satisfying any for so long as this Trust Agreement is in maintain and increase sales of advertising reporting or other requirements as may be effect. The Trustee shall have no beneficial time, and to maintain promotional required by law or any governmental agency. interest in the Station Assets. advertising, sales, marketing and In no event shall the Trustee or the Wichita (g) Except as expressly provided in this merchandising support for the Stations at Stations Trust be responsible for any Trust Agreement, the Trustee shall not: (1) 1998 levels or greater. liabilities or obligations relating to or arising incur any debt or guaranty obligation in favor

VerDate 06-MAY-99 16:01 Jun 10, 1999 Jkt 183247 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\A11JN3.203 pfrm07 PsN: 11JNN1 Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Notices 31619 of any other person; (2) engage in any purchaser under an agreement to sell the that the Wichita Trustee Fees and the Capstar business other than as necessary in Trustee’s Station Assets, which is permitted under this II Trustee Fees paid to the Trustee, in the reasonable opinion to meet his fiduciary Trust Agreement, with respect to, any local aggregate, do not exceed the Engagement Fee, duties with respect to the operation of the marketing agreement, time brokerage nothing in this Agreement shall restrict the Stations as a broadcast license serving the agreement, join sales agreement, or any other Trustee’s entitlement to the entire Wichita Market; (3) sell or otherwise transfer, similar agreement; Engagement Fee. The Trustee agrees that in assign or encumber the Station Assets, or (4) (viii) Fail to use commercially reasonable return for the Wichita Trustee Fees, he will enter into any agreement to do so, or enter efforts to maintain the ability of each Station devote such time to the Wichita Stations into any merger, consolidation, or similar to operate at a maximum power and full Trust as is necessary, appropriate, or transaction or engage in any reclassification coverage at all times; or advisable in the proper exercise of his or similar transaction. (ix) Agree to or make any commitment, fiduciary duties hereunder. Payment of (h) The Trustee shall have full authority orally or in writing any actions prohibited Trustee’s monthly compensation shall be and power over the operation and the this Trust Agreement or the Final made by Beneficiary within 20 days after the management of the Stations, shall conduct judgment. end of each calendar month during the term the operations of the Stations in the ordinary Notwithstand this Section 3(h), Beneficiary of this Trust Agreement. course of business consistent with past acknowledges that the business organization (b) The Trustee is expressly authorized to operations of the Stations, and, to the extent and operator of the Station Assets of station incur and pay from the Station Assets held possible, shall maintain the status quo of KNSS(AM)—as they exist on the date of this in trust all reasonable expenses, such operations as currently conducted with Trust Agreement will change as the station is disbursements, and advances incurred or a view to maximizing the value to be incorporated in the operation and business made by the Trustee in the performance of received by Beneficiary consistent with the organization of the Triathlon Wichita his duties hereunder (including reasonable Trustee’s duties as a licensee of the FCC and Stations. fees, expenses and disbursements of his as a fiduciary of Beneficiary. Without (i) The Trustee shall have any and all such counsel), which the Trustee in good faith limiting the generality of the foregoing, further powers and shall take such further deems necessary, proper, or advisable in the during the term of this Trust Agreement, actions (including, but not limited to, taking performance of his duties under this Trust except as contemplated by this Trust legal action) as may be necessary to fulfill the Agreement; provided, however, that the Agreement, the Trustee shall not: Trustee’s obligations under this Trust Trustee may pay legal fees attributable to (i) Fail to use all commercially reasonable Agreement. legal services that he personally performs for efforts to preserve intact Beneficiary’s present (j) If as of the date hereof any of the the Wichita Stations Trust in his capacity as business organization of the Stations and Stations are not subject to a binding Existing an attorney if, and only if, at any time during preserve each Station’s relationships with Sale Agreement for a Sale (or Sales) (as the calendar month in which such services customers, suppliers and other having defined below) of the Station Assets, or if any are performed the combined number of business dealings with it; Existing Sale Agreement terminates or stations in the Wichita Stations Trust and the (ii) Fail to use commercially reasonable expires during the term of this Agreement, Capstar Trust II is five or fewer. efforts to maintain the Station Assets in their the Trustee shall promptly take such actions (c) The Trustee shall not be liable, except current condition, except for ordinary wear and tear; and execute such documents in order to for his own gross negligence or willful (iii) Fail to use all commercially reasonable effect a disposition of the Station Assets misconduct and, except with respect to efforts to maintain the present format of the which renders to Beneficiary the maximum claims based upon such gross negligence or Stations; cash present value for the Station Assets. The willful misconduct that are successfully (iv) Except for amendments of employment Trustee may negotiate the terms and asserted against the Trustee, Beneficiary shall agreements in the ordinary course of business conditions of a binding agreement for the sale indemnify and hold harmless the Trustee and consistent with past operations of the of the Station Assets (a ‘‘Sale Agreement’’) in (and any successor trustee) from and against Stations, materially amend any material his sole and absolute discretion. Trustee shall any and all losses, liabilities, claims, actions, contract or default in any material respect (or submit and fully prosecute appropriate damages and expenses, including reasonable take or omit to take any action that, with or applications to such governmental attorneys’ fees and disbursements, arising out without the giving of notice or passage of authorities as such Sale Agreement requires, of and in connection with (i) the Trustee’s time, would constitute a material default) requesting approval to assign such Station performance of his duties under this Trust under any material contract or, except in the Assets, and, upon satisfaction of all closing Agreement and/or any Sale Agreement, (ii) ordinary course of business and consistent conditions under such agreements (unless Beneficiary’s failure to perform its with past operations of the Stations, enter waived, in whole or in part, by the Trustee), obligations under the Trust Agreement, (iii) into any new material contract; transfer title to the Station Assets to the third any liability arising out of or related to the (v) Sell (Whether by merger, consolidation, party (or parties). Station Assets that accrued or arose prior to or the sale of an equity interest or assets), 4. Concerning the Trustee. the date of transfer to the Trustee, including lease, or dispose of any Station Assets except (a) The Trustee shall be entitled to receive without limitation with respect to the pursuant to an agreement to sell the Station as a trustee fee (the ‘‘Wichita Trustee Fee’’) Assumed Contracts, (iv) losses arising out of Assets, which is permitted under this Trust for his services hereunder a fee of $2,500 per or related to the Station Assets, and the Agreement, or in the ordinary course of month for each Station that is in the Wichita operation thereof on a going concern basis, business and consistent with past practice or, Stations Trust (which amount shall be that are not recovered from the proceeds of even if in the ordinary course of business and prorated for each Station for partial months a Sale, or otherwise under the Trust consistent with past practices (other than based on a 30-day month), provided, Agreement, (v) fines and penalties levied by sales of surplus or obsolete equipment), however, that the Wichita Trustee Fee plus the FCC or any other governmental authority, whether in one or more transactions, in no any Capstar II Trustee Fee to which the and costs related thereto, which may be event involving a Station Asset or Station Trustee may be entitled under the Capstar caused or incurred by the transactions Assets having an aggregate fair market value Trust II Agreement entered into as of April contemplated by the Trust Agreement, any in excess of $75,000’ 30, 1999, by and between the Beneficiary and Sale or any other action, error or omission of (vi) (A) Mortgage, (B) pledge, or (C) subject the Trustee (the ‘‘Capstar Trust II any person other than the Trustee, (vi) taxes to any material lien, pledge, claim, security Agreement’’) shall not exceed a total of that may be levied upon or payable by the interest, restriction, mortgage, tenancy and $15,000 per month. The fee (the Trustee, in his personal capacity, arising out other possessory interest, conditional sale or ‘‘Engagement Fee’’) received by the Trustee of or related to the Trust and (vii) the other title retention agreement, assessment, pursuant to the Engagement and Assignment Trustee’s obligation, if any, under the easement, right of way, covenant, restriction, Agreement entered into as of February 3, employment laws, including without right of first refusal, defect in title, 1999, by and between the Beneficiary and the limitation the Employee Retirement Security encroachment or other burden, option or Trustee (the ‘‘Engagement and Assignment Act of 1974, as amended. Payments to the encumbrance of any kind, any Station Assets; Agreement’’) shall be credited toward any Trustee pursuant to this Section 4(c) shall be (vii) Enter into, or enter into negotiations amounts otherwise due as a Wichita Trustee made within 20 days of Trustee’s submission or discussions with any person other than a Fee and a Capstar II Trustee Fee. In the event to Beneficiary of an invoice or bill therefor,

VerDate 06-MAY-99 19:19 Jun 10, 1999 Jkt 183247 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\11JNN1.XXX pfrm08 PsN: 11JNN1 31620 Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Notices plus appropriate supporting documentation. shall not be 1% or greater stockholder, duly given (a) if transmitted by facsimile, The obligations of Beneficiary to the Trustee officer, employee, director, or affiliate of upon acknowledgement of receipt thereof in under this Section 4(c) shall survive the Beneficiary, and may not have any business writing by facsimile or otherwise, (b) if resignation, incapacity to act, death or or familial relationship (as defined in the personally delivered, upon delivery or insolvency of the Trustee and the termination FCC Policy Statement in MM Docket No. 85– refusal of delivery, or (c) if mailed by of this Trust Agreement. 218, FCC 86–67 (March 17, 1986)) with any registered or certified United States mail, (d) The Trustee shall be entitled to rely in officer, employee, director, or 1% of greater return receipt requested, postage prepaid, good faith upon any order, judgment, stockholder or affiliate of Beneficiary. upon delivery or refusal of delivery. All certification, demand, notice, instrument or Neither the Trustee nor any successor trustee notices, consents, waivers, or other other writing delivered to him hereunder will serve as an officer, employee, or director communications required or permitted to be without being required to determine the of Beneficiary, its affiliates, or its successor given hereunder shall be addressed to the authenticity or the correctness of any fact companies. respective party to whom such notice, stated therein or the propriety or validity or (i) The Trustee agrees to resign as Trustee consent, waiver, or other communication the service thereof. The Trustee may act in if requested to do so by the DOJ in order for relates at the following addresses: reliance upon any instrument or signature Defendants (as defined in the Final If to Beneficiary: Capstar Broadcasting believed by him in good faith to be genuine Judgment) to meet their obligations under the Corporation, 600 Congress Avenue, Suite and may assume that any person purporting Final Judgment. Such resignations will not be 1400, Austin, Texas 78701, Attention: to give receipt or advice or make any effective until a successor trustee has been William S. Banowsky, Jr., Facsimile: (512) statement or execute any document in appointed pursuant to the provisions of the 340–7890. connection with the provisions hereof has Trust Agreement. With copies to: been duly authorized to do so. The Trustee 5. Termination: Distribution of Station Vinson & Elkins L.L.P., 3700 Trammell Crow may act pursuant to the advice of counsel Assets or Proceeds from Sale of Station Center, 2001 Ross Avenue, Dallas, Texas with respect to any matter relating to this Assets. 75201, Attention: Michael D. Wortley, Trust Agreement and shall not be liable for (a) Subject to such FCC and DOJ approval Rodney L. Moore, Facsimile: (214) 999– any action taken or omitted in good faith in as may be required, and following the receipt 7732. accordance with such advice. The Trustee’s of such approval, this Trust Agreement and Wiley, Rein & Fielding, 1776 K Street, N.W., counsel and advisors shall be independent the Wichita Stations Trust created hereby Washington, D.C. 20006, Attention: of, and have no relationship with, shall terminate if such termination would not Nathaniel F. Emmons, Facsimile: (202) Beneficiary. cause Beneficiary to be in violation of the 719–7049 (e) Subject to Section 4(c), the rights and Communications Act or the Final Judgment. If to the Trustee: Henry M. Rivera, Shook duties of the Trustee hereunder shall (b) Upon the termination of this Trust Hardy & Bacon L.L.P., Hamilton Square, terminate upon the Trustee’s incapacity to Agreement under Section 5(a) or pursuant to Suite 800, 600 14th Street, NW, Washington, act, death or insolvency, and no interest in a Sale (or Sales) of all or substantially all of D.C. 20005–2004, Facsimile: (202) 783–4211. the Sale Agreement or the Station Assets the Station Assets to an unaffiliated third Any party by written notice to the other directly or indirectly held by the Trustee nor party (or parties) pursuant to Section 3, the parties pursuant to this Section 6(e) may any of the rights and duties of a deceased or Trustee shall receive the money, securities, change the address or the persons to whom insolvent Trustee may be transferred by will, rights or property which are distributed or notices or copies thereof shall be directed. devise, succession or in any manner except are distributable in respect of the Station 7. Miscellaneous. as provided in this Trust Agreement. The Assets, and, after paying (or reserving for (a) This Trust Agreement (which term shall heirs, administrators, executors or other payment thereof) any reasonable expenses or be deemed to include the annexes, exhibits, representatives of an incapacitated, deceased liabilities incurred pursuant to this Trust and schedules hereto and the other or insolvent Trustee shall, however, have the Agreement, shall promptly distribute or certificates, documents, and instruments right and duty to convey the Sale Agreement cause the distribution of such money, delivered hereunder), constitutes the entire and the Station Assets held by the Trustee to securities, rights or property to Beneficiary or agreement between the parties hereto and one or more successor trustees designated by its designee. supersedes all prior agreements, Beneficiary pursuant to Section 4(g). 6. Communications. commitments, or understandings with (f) The Trustee (and any successor trustee) (a) The Trustee may communicate with respect to the subject matter hereof. This may resign by giving not less than 60 days and provide reports to Beneficiary Trust Agreement shall not be amended, prior written notice of resignation to concerning the implementation of the altered or modified except by an instrument Beneficiary, provided that a successor trustee Wichita Station Trust, but not concerning the in writing duly executed by each of the has been appointed, such appointment has management and operations of the Stations parties hereto. Substantial changes in this received all necessary approval from the except as provided in Section 3(a)(vi). Trust Agreement may be made only as FCC, and any order granting such approval (b) The Trustee may engage in the approved by the FCC and the DOJ, pursuant has become a final order with respect to communications contemplated by Section 3 to and consistent with the Final Judgment. A which no action, request for stay, petition for hereof to facilitate a Sale (or Sales) of the copy of any substantial change shall be filed hearing or reconsideration, or appeal has Station Assets to an unaffiliated third party by the Trustee with the FCC and the DOJ expired. Beneficiary shall cooperate fully in (or parties). within ten days following the execution the prompt appointment of a successor (c) During the term of this Trust thereof, with copies to the appropriate trustee and shall not unreasonably interfere Agreement, neither Beneficiary nor any of its divisions and bureaus of the FCC and the with or delay the effectiveness of such officers, directors, employees, stockholders, DOJ. resignation. or affiliates shall communicate with the (b) This Trust Agreement shall be binding (g) In the event of such resignation, Trustee regarding the operation or upon and shall inure to the benefit of the incapacity to act, death or insolvency of the management of the Stations; provided, parties hereto and their respective permitted Trustee, the Court shall appoint, on however, that Beneficiary may communicate successors and permitted assigns, and application of the DOJ, a Trustee selected by with the Trustee as provided in Section 3, nothing in this Trust Agreement, express or the DOJ, subject to such prior approval of the and concerning the mechanics of implied, is intended to confer upon any other FCC as may be required, to effect the implementing any Sale of the Station Assets person any rights or remedies of any nature divestiture of the Station Assets. Any to an unaffiliated third party. whatsoever under or by reason of this Trust successor trustee shall succeed to all of the (d) Any communications permitted by Agreement. Subject to Section 4(g), this Trust rights and obligations of the Trustee replaced Section 6(a), (b), or (c) shall be evidenced in Agreement shall not be assignable by any of hereunder and shall be deemed the Trustee writing, and shall be retained the Trustee for the parties hereto. for purposes of this Trust Agreement, upon inspection upon request by the FCC. (c) If any term or other provision of this execution of such successor trustee of a (e) All notices, requests, consents, waivers, Trust Agreement is invalid, illegal, or counterpart of this Trust Agreement. and other communications required or incapable of being enforced by any rule of (h) The Trustee and any successor trustee permitted to be given hereunder shall be in applicable law, or public policy, all other designated pursuant to Sections 4(f) and (g) writing and shall be deemed to have been conditions and provisions of this Trust

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Agreement shall nevertheless remain in full Annex A Complaint would violate Section 7 of force and effect so long as the economic or KNSS(AM), Wichita, Kansas the Clayton Act, as amended, 15 U.S.C. legal substance of the transactions 18; (b) preliminary and permanent Annex B contemplated herein are not affected in any injunctive relief preventing the manner materially adverse to any party. KFH(AM), Wichita, Kansas Upon such determination that any term or consummation of the proposed KQAM(AM), Wichita, Kansas acquisition; (c) an award to the United other provision is invalid, illegal, or KEYN(FM), Wichita, Kansas incapable of being enforced, the parties KWSJ(FM), Haysville, Kansas States of the costs of this action, and (d) hereto shall negotiate in good faith to modify such other relief as is proper. United States of America, Plaintiff, v. this Trust Agreement so as to effect the Before this suit was filed, the United Capstar Broadcasting Corporation, and original intent of the parties as closely as States reached a proposed settlement possible in a mutually acceptable manner in Triathlon Broadcasting, Company, Defendants. with Capstar and Triathlon which is order that the transactions contemplated memorialized in the Stipulation and herein are consummated as originally [Civil Action No. 99–CV–00993] proposed Final Judgment which have contemplated to the fullest extent possible. (Judge Oberdorfer) (d) The headings of the sections of this been filed with the Court. Under the Trust Agreement are solely for convenience Competitive Impact Statement terms of the proposed Final Judgment, Capstar must divest five stations— of reference and shall not be given any effect The United States, pursuant to in the construction or interpretation of this KEYN–FM, KWSJ–FM, KFH–AM, Section 2(b) of the Antitrust Procedures Trust Agreement. Unless otherwise stated, KNSS–AM and KQAM–AM—to another and Penalties Act (‘‘APPA’’), 15 U.S.C. references in this Trust Agreement to radio operator approved by plaintiff at 16(b)–(h), files this Competitive Impact Sections, subsections, Annexes, Exhibits, the time it acquires Triathlon. If Capstar Statement relating to the proposed Final Schedules, and other subdivisions refer to does not divest these stations to an the corresponding Sections, subsections, Judgment submitted for entry in this approved buyer at the time it acquires Annexes, Exhibits, Schedules, and other civil antitrust proceeding. subdivisions of this Trust Agreement. The Triathlon, Capstar must place the words ‘‘this Trust Agreement,’’ ‘‘herein,’’ I. Nature and Purpose of the Proceeding stations in an FCC Trust. The FCC Trust ‘‘hereby,’’ ‘‘hereunder,’’ ‘‘hereof,’’ and words The plaintiff filed a civil antitrust Agreement was filed with the Court as of similar import, refer to this Trust Complaint on April 21, 1999, alleging an attachment to the proposed Final Agreement as a whole and not to any Judgment. Unless the Antitrust Division particular subdivision unless expressly so that Capstar Broadcasting Corporation’s (‘‘Capstar’’) proposed acquisition of of the United States Department of limited. The word ‘‘or’’ is not exclusive, and Justice (the ‘‘Antitrust Division’’) grants the word ‘‘including’’ (in its various forms) Triathlon Broadcasting Company means ‘‘including without limitation.’’ (‘‘Triathlon’’) would violate Section 7 of an extension, the Trustee must divest Pronouns in the masculine, feminine, or the Clayton Act, as amended, 15 U.S.C. the stations to a buyer approved by the neuter genders shall be construed to state and 18. The Complaint alleges that Capstar Antitrust Division at its sole discretion include any other gender. and Triathlon both own and operate within four (4) months of the date of (e) This Trust Agreement shall be governed radio stations throughout the United entry of the Final Judgment. by and construed in accordance with the States, and that they each own and The proposed Final Judgment also laws of the State of Texas without regard to requires both Capstar and Triathlon to conflicts of law principles. operate radio stations in the Wichita, Kansas, metropolitan area. Specifically, ensure, to the extent they are able under (f) This Trust Agreement may be executed the proposed Final Judgment, that these and delivered (including by facsimile the complaint alleges that Capstar owns transmission) in one or more counterparts, KKRD–FM, KRZZ–FM, and KNSS–AM stations will be operated independently each of which shall be deemed an original in Wichita and that Capstar controls as viable ongoing businesses while and all of which together shall constitute a approximately 20 percent of the Wichita Capstar and Triathlon continue to single instrument, and shall become effective radio advertising market. The complaint operate them. If the stations are when one or more counterparts have been also alleges that Triathlon owns KZSN– transferred to the Trustee, the Trustee signed and delivered by each of the parties FM, KRBB–FM, KEYN–FM, KWSY–FM, has agreed that he will operate the hereto, it being understood that all parties stations independently as viable need not sign the same counterpart. KFH–AM, and KQAM–FM in Wichita and controls approximately 33 percent ongoing businesses. Further, the 8. Relationship to Final Judgment. proposed Final Judgment requires The Trustee hereby agrees to be bound by of the radio advertising revenues in the the applicable provisions of the Final Wichita radio advertising market. The Capstar to give plaintiff prior notice Judgment, and to the extent that any proposed acquisition would give regarding future radio station provision contained in this Trust Agreement Capstar a significant share of the radio acquisitions or certain agreements is inconsistent with the Final Judgment, the advertising market in Wichita and pertaining to the sale of broadcast radio provisions of the Final Judgment shall control over stations that are close advertising time in Wichita. govern. substitutes for each other based upon The plaintiff and defendants have [Remainder of page intentionally left blank] their specific audience characteristics. stipulated that the proposed Final In witness whereof, the parties hereto According to industry estminates, the Judgment may be entered after have executed this Trust Agreement or proposed acquisition would give compliance with APPA. Entry of the caused this Trust Agreement to be duly Capstar control of over 45 percent of the proposed Final Judgment would executed on their behalf as of the date radio advertising revenue—even after terminate this action, except that the first written above. Capstar divests the two lowest ranked Court would retain jurisdiction to FM radio stations pursuant to Federal construe, modify, or enforce the Beneficiary: Capstar Broadcasting provisions of the proposed Final Corporation Communications Commission (‘‘FCC’’) lllllllllllllllllll regulations. As a result, the combination Judgment, and to punish violations By: thereof. William S. Banowsky, Jr., would substantially lessen competition Executive Vice President in the sale of radio advertising time in II. The Alleged Violation Trustee: Wichita Stations Trust the Wichita metropolitan area. A. The Defendants By: lllllllllllllllllll The prayer for relief seeks: (a) Henry M. Rivera adjudication that Capstar’s proposed Capstar is a Delaware corporation Trustee acquisition of Triathlon described in the with its headquarters in Austin, Texas.

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Capstar owns approximately 309 radio radio time (a) may be less expensive and 640 points. This substantial increase in stations in 76 U.S. markets. In 1997, more cost-efficient than other media at concentration is likely to give Capstar Capstar had total revenue of reaching the advertiser’s target audience unilateral power to raise advertising approximately $350 million, (individuals most likely to purchase the rates and reduce the level of service approximately $4.9 million of which advertiser’s products or services); (b) provided to advertisers in Wichita. was derived from its Wichita stations. may reach certain target audiences that Today, several Capstar and Triathlon Triathlon is a Delaware corporation cannot be reached as effectively through stations in Wichita compete head-to- headquartered in San Diego, California. other media; or (c) may render certain head to reach the same audiences and, Triathlon currently owns 31 radio services or offer promotional for many local and national advertisers stations in six U.S. markets. In 1997, opportunities to advertisers that they buying time in Wichita, they are close Triathlon had total revenue of cannot exploit as effectively using other substitutes for each other based on their approximately $33.6 million, media. For these and other reasons, specific audience characteristics. The approximately $8 million of which was many local and national advertisers in proposed merger would eliminate this derived from its Wichita stations. Wichita who purchase radio advertising competition. time view radio either as a necessary During individual price negotiations B. Description of the Events Giving Rise advertising medium for them or as a between advertisers and radio stations, to the Alleged Violation necessary advertising complement to advertisers provide the stations with On July 23, 1998, Capstar and other media. information about their advertising Triathlon entered into an Agreement Although some local and national needs, including their target audience and Plan of Merger (‘‘Agreement’’). advertisers may switch some of their and the desired frequency and timing of Under the terms of the Agreement, advertising to other media rather than ads. Radio stations thus have the ability Triathlon agreed to transfer its licensee absorb a price increase in radio to charge advertisers differing rates companies, including Triathlon advertising time in Wichita, the based in part on the number and Broadcasting of Wichita Licensee, Inc., existence of such advertisers would not attractiveness of competitive radio to Capstar. Also under the terms of the prevent radio stations from raising their stations that can meet a particular Agreement, Triathlon agreed to sell prices a small but significant amount. At advertiser’s specific target needs. Triathlon Broadcasting Company to a minimum, stations could raise prices During individualized rate Capstar. profitably to those advertisers who view negotiations, advertisers that desire to Capstar and Triathlon compete for the radio either as a necessary advertising reach certain listeners can help ensure business of local and national medium for them, or as a necessary competitive rates by ‘‘playing off’’ companies seeking to advertise in the advertising complement to other media. Capstar stations against Triathlon Wichita radio market. The proposed Radio stations, which negotiate prices stations. Capstar’s acquisition of acquisition of Triathlon by Capstar, and individually with advertisers, can Triathlon will end this competition. the threatened loss of competition that identify those advertisers with strong After the acquisition, such advertisers would be caused thereby, precipitated radio preferences. Consequently, radio will be unable to reach their desired the government suit. stations can charge different advertisers audiences with equivalent efficiency different rates. Because of this ability to without using Capstar stations. Because C. Anticompetitive Consequences of the price discriminate among different advertisers seeking to reach these Proposed Acquisition customers, radio stations may charge audiences would have inferior 1. The Sale of Radio Advertising Time higher rates to advertisers that view alternatives to the merged entity as a in Wichita radio as particularly effective for their result of the acquisition, the acquisition needs, while maintaining lower rates for would give Capstar the ability to raise The Complaint alleges that the other advertisers. prices and reduce the quality of its provision of advertising time on radio service to some advertisers on its stations serving the Wichita, Kansas 2. Harm to Competition stations in Wichita. Metropolitan Survey Area (‘‘MSA’’) The Complaint alleges that Capstar’s b. Advertisers could not turn to other constitutes a line of commerce and a proposed acquisition of Triathlon would Wichita radio stations to prevent section of the country, or a relevant lessen competition substantially in the Capstar from imposing an market, for antitrust purposes. The provision of radio advertising time in anticompetitive price increase. Wichita MSA is the geographical unit the Wichita MSA. The proposed If Capstar raised prices or lowered for which Arbitron furnishes radio transaction would create further market services to those advertisers who buy stations, advertising agencies, and concentration in an already advertising time on Capstar and advertisers with data to aid in concentrated market. Using a measure of Triathlon stations in Wichita because of evaluating radio audience size and market concentration called the their strength in delivering access to composition. Advertisers use this data Herfindahl-Hirschman Index (‘‘HHI’’), certain audiences, non-Capstar radio in making decisions about which radio explained in Appendix A of the stations in Wichita would not be station or combination of radio stations Complaint, a combination of Capstar induced to change their formats to can deliver their target audiences in the and Triathlon would substantially attract those audiences in sufficiently most efficient and cost-effective way. increase the concentration in the large numbers to defeat a price increase. The Wichita MSA includes Butler, Wichita radio advertising markets. The Successful radio stations are unlikely to Harvey, and Sedgwick Counties. Radio HHI currently is 3040. If Capstar divests undertake a format change solely in stations earn their revenues from the only the two least significant FM response to small but significantly sale of advertising time to local and stations, Capstar’s share of the Wichita increases in price being charged to national advertisers. Many local and radio market, based on advertising advertisers by a multi-station firm such national advertisers purchase radio revenue, would increase from as Capstar because they would likely advertising time in Wichita because approximately 20 percent to lose a substantial portion of their they find such advertising preferable to approximately 45 percent. The existing audiences. Even if less advertising in other media for their approximate post-merger HHI would be successful stations did change format, specific needs. For such advertisers, 3680, representing an increase of about they would still be unlikely to attract

VerDate 06-MAY-99 16:01 Jun 10, 1999 Jkt 183247 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\A11JN3.210 pfrm07 PsN: 11JNN1 Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Notices 31623 enough listeners to provide suitable been accomplished and (3) the Trustee’s bring suit in federal court to recover alternatives to the merged entity. In recommendations. At the same time the three times the damages the person has addition, new entry into the Wichita Trustee will furnish such report to the suffered, as well as costs and reasonable radio advertising market would not be plaintiff and defendants, who will each attorney’s fees. Entry of the proposed timely, likely or sufficient to deter the have the right to be heard and to make Final Judgment will neither impair nor exercise of market power. For all these additional recommendations. assist the bringing of any private reasons, plaintiff concludes that the The proposed Final Judgment requires antitrust damage action. under the proposed transaction would lessen that prior to the consummation of the provisions of Section 5(a) of the Clayton competition substantially in the sale of transaction, defendants will maintain Act, 15 U.S.C. 16(a), the proposed Final radio advertising time on radio stations the independence of their respective Judgment has no prima facie effect in serving the Wichita MSA in violation of radio stations in Wichita until the any subsequent private lawsuit that may Section 7 of the Clayton Act. closing of the merger and the transfer of be brought against defendants. KEYN–FM, KWSJ–FM, KFH–AM, III. Explanation of the Proposed Final KNSS–AM and KQAM–AM to either a V. Procedures Available for Judgment buyer approved by the plaintiff or to the Modification of the Proposed Final The proposed Final Judgment would Trustee. Judgment preserve competition in the sale of radio The proposed Final Judgment also The plaintiff and the defendants have advertising time in Wichita. It requires prohibits Capstar from entering into stipulated that the proposed Final Capstar to divest five stations: KEYN– certain agreements with other Wichita Judgment may be entered by the Court FM, KWSJ–FM, KFH–AM, KNSS–AM radio stations without providing at least after compliance with the provision of and KQAM–AM. The relief will reduce thirty (30) days’ notice to the plaintiff. the APPA, provided that the United the share in advertising revenues Specifically, Capstar must notify the States has not withdrawn its consent. Capstar would have achieved in the plaintiff before acquiring any interest in The APPA conditions entry upon the transaction from 45 percent to less than another Wichita radio station. Such Court’s determination that the proposed 40 percent. The divestitures will acquisitions could raise competitive Final Judgment is in the public interest. preserve choices for advertisers and will concerns but might be too small to be The APPA provides a period of at ensure that radio advertising prices do reported otherwise under the Hart-Scott- least sixty (60) days preceding the not increase and services do not decline Rodino Antitrust Improvements Act of effective date of the proposed Final as a result of the transaction. 1976, as amended, 15 U.S.C. 18a (the Judgment within which any person may Capstar must divest the KEYN–FM, ‘‘HSR Act’’). Moreover, Capstar may not submit to the United States written KWSJ–FM, KFH–AM, KNSS–AM and agree to sell radio advertising time for comments regarding the proposed Final KQAM–AM assets to either another any other Wichita radio station, or to Judgment. Any person who wishes to buyer or a Trustee at the time it acquires have another radio station that also sells comment should do so within sixty (60) Triathlon. The divestitures must be to a radio advertising time in Wichita sell its days of the date of publication of this purchaser or purchasers acceptable to radio advertising time, without Competitive Impact Statement in the the plaintiff in its sole discretion. providing plaintiff with notice. In Federal Register. The plaintiff will Except in the case of KNSS–AM, the particular, the provision requires evaluate and respond to the comments. divestitures shall include all the assets Capstar to notify the plaintiff before it All comments will be given due of the stations being divested. The enters into any Joint Sales Agreements consideration by the Department of divestitures shall be accomplished in (‘‘JSAs’’) in Wichita. Under a JSA, one Justice, which remains free to withdraw such a way as to satisfy plaintiff, in its station sells another station’s its consent to the proposed Final sole discretion, that such assets can and advertising time. Despite their clear Judgment at any time prior to its entry. will be used as viable, ongoing competitive significance, JSAs may not The comments and the response of the commercial radio businesses. If all be reportable to the Department United States will be filed with the defendants fail to divest these stations under the HSR Act. Thus, this provision Court and published in the Federal within the time periods specified in the in the proposed Final Judgment ensures Register. Final Judgment, a Trustee agreed upon that the plaintiff will receive notice of Any such written comments should by plaintiff and Defendants and and be able to act, if appropriate, to stop be submitted to: Craig W. Conrath, identified in the Final Judgment will be any agreements that might have Chief, Merger Task Force, Antitrust entrusted to effect the divestitures. If the anticompetitive effects in the Wichita Division, United States Department of Trustee is appointed, the proposed Final radio advertising market. Justice, 1401 H Street, NW, Suite 4000, Judgment provides that Capstar will pay The relief in the proposed Final Washington, DC 20530. all costs and expenses of the Trustee Judgment is intended to remedy the The proposed Final Judgment and any professionals and agents likely anitcompetitive effects of provides that the Court retains retained by the Trustee. After Capstar’s proposed transaction with jurisdiction over this action, and the appointment, the Trustee will file Triathlon in Wichita. Nothing in this parties may apply to the Court for any monthly reports with the plaintiff, Final Judgment is intended to limit the order necessary or appropriate for the Capstar and the Court, setting forth the plaintiffs ability to investigate or to modification, interpretation, or Trustee’s efforts to accomplish the bring actions, where appropriate, enforcement of the Final Judgment. divestitures ordered under the proposed challenging other past or future VI. Alternatives to the Proposed Final Final Judgment. If the Trustee has not activities of defendants in Wichita, or Judgment accomplished the divestitures within any other markets. four (4) months after the date of the The plaintiff considered, as an Order’s entry, the Trustee shall IV. Remedies Available to Potential alternative to the proposed Final promptly file with the Court a report Private Litigants Judgment, a full trail on the merits of its setting forth (1) the Trustee’s efforts to Section 4 of the Clayton Act, 15 Complaint against defendants. The accomplish the required divestitures, (2) U.S.C. 15, provides that any person who plaintiff is satisfied, however, that the the reasons, in the Trustee’s judgment, has been injured as a result of conduct divestiture of KEYN–FM, KWSJ–FM, why the required divestitures have not prohibited by the antitrust laws may KFH–AM, KNSS–AM, and KQAM–AM,

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Thus, the proposed statement and its responses to comments in Final Judgment would achieve the relief order to determine whether those or documents within the meaning of the the plaintiff would have obtained explanations are reasonable under the APPA that were considered by the through litigation, but avoids the time, circumstances. plaintiff in formulating the proposed expense and uncertainty of a full trial United States v. Mid-America Dairymen, Final Judgment. on the merits of the Complaint. Inc., 1977–1 Trade Cas. ¶ 61,508, at Dated: May 12, 1999. VII. Standard of Review Under the 71,980 (W.D. Mo. 1977). Respectfully submitted, APPA for Proposed Final Judgment Accordingly, with respect to the Karl D. Knutsen, adequacy of the relief secured by the Attorney, Merger Task Force. The APPA requires that proposed decree, a court may not ‘‘engage in an U.S. Department of Justice consent judgments in antitrust cases unrestricted evaluation of what relief brought by the United States be subject Antitrust Division, 1401 H Street, N.W., would best serve the public.’’ United Washington, D.C. 20530, (202) 514–0976. to a sixty (60) day comment period, after States v. BNS, Inc, 858 F.2d 456, 462 which the court shall determine (9th Cir. 1988) (citing United States v. Certificate of Service whether entry of the proposed Final Bechtel Corp. 648 F.2d 660, 666 (9th Cir. I, Karl D. Knutsen, of the Antitrust Judgment ‘‘is in the public interest.’’ In 1981)); see also Microsoft, 56 F.3d at Division of the United States making that determination, the Court 1460–62. Precedent requires that Department of Justice, do hereby certify may consider— the balancing of competing social and that true copies of the foregoing (1) The competitive impact of such political interests affected by a proposed Competitive Impact Statement were judgment, including termination of alleged antitrust consent decree must be left, in the served this 12th day of May, 1999, by violations, provisions for enforcement and first instance, to the discretion of the United States mail, to the following: modification, duration or relief sought, Attorney General. The court’s role in anticipated effects of alternative remedies protecting the public interest is one of David J. Laing, Baker & McKenzie, 815 actually considered, and any other insuring that the government has not Connecticut Ave. N.W., Washington, considerations bearing upon the adequacy of breached its duty to the public in consenting D.C. 20006, Counsel for Triathlon such judgment; to the decree. The court is required to Broadcasting Company. (2) The impact of entry of such judgment determine not whether a particular decree is Neil W. Imus, Vinson & Elkins, 1455 upon the public generally and individuals the one that will best serve society, but Pennsylvania Avenue, N.W., alleging specific injury from the violations whether the settlement is ‘‘within the reaches Washington, D.C. 20006, Counsel for of the public interest.’’ More elaborate set forth in the complaint including Capstar Broadcasting Corporation consideration of the public benefit, if any, to requirements might undermine the be derived from a determination of the issues effectiveness of antitrust enforcement by Karl D. Knutsen. consent decree.2 at trail. [FR Doc. 99–14896 Filed 6–10–99; 8:45 am] 15 U.S.C. 16(e). The proposed Final Judgment therefore BILLING CODE 4410±11±M should not be reviewed under a As the United States Court of Appeals standard of whether it is certain to for the District of Columbia Circuit held, eliminate very anticompetitive effect of DEPARTMENT OF JUSTICE this statute permits a court to consider, a particular practice or whether it among other things, the relationship mandates certainty of free competition Antitrust Division between the remedy secured and the in the future. Court approval of a final specific allegations set forth in the judgment requires a standard more United States of America v. Imetal, plaintiff’s Complaint, whether the flexible and less strict than the standard DBK Minerals, Inc., English China decree is sufficiently clear, whether required for a finding of liability. ‘‘[A] Clays, plc, and English China Clays, enforcement mechanisms are sufficient, proposed decree must be approved even Inc.; Proposed Final Judgment and and whether the decree may positively if it falls short of the remedy the court Competitive Impact Statement harm third parties. See United States v. would impose on its own, as long as it Notice is hereby given pursuant to the Microsoft Corp., 56 F.3d 1448, 1461–62 falls within the range of acceptability or Antitrust Procedures and Penalties Act, (D.C. Cir. 1995). is ‘within the reaches of public 15 U.S.C. Sections 16(b) through (h), In conducting this inquiry, ‘‘[t]he interest. ’’ 3 Court is nowhere compelled to go to This is strong and effective relief that that a Complaint, Hold Separate trial or to engage in extended should fully address the competitive Stipulation and Order, and a proposed proceedings which might have the effect Final Judgment were filed with the of vitiating the benefits of prompt and Cong. 2d Sess. 8–9 (1974), reprinted in U.S.C.C.A.N. United States District Court for the less costly settlement through the 6535, 6538. District of Columbia in United States v. consent decree process.’’ 1 Rather, 2 Bechtel, 648 F.2d at 666 (citations omitted) Imetal, DBK Minerals, Inc., English (emphasis added); see BNS, 858 F.2d at 463; United China Clays, plc, and English China States v. National Broad. Co. 449 F. Supp. 1127, 1 119 Cong. Rec. 24598 (1973). See United States 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716. Clays, Inc., Civil No. 99–1018 on April v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass. See also Microsoft 56 F.3d at 1461 (whether ‘‘the 26, 1999. A Competitive Impact 1975). A ‘‘public interest’’ determination can be remedies [obtained in the decree are] so Statement was filed on May 24, 1999. made properly on the basis of the Competitive inconsonant with the allegations charged as to fall The Complaint alleged that the Impact Statement and Response to Comments filed outside of the ‘reaches of the public interest’ ’’) pursuant to the APPA. Although the APPA (citations omitted). proposed acquisition of English China authorizes the use of additional procedures, 15 3 United States v. American Tel. and Tel Co, 552 Clays (‘‘ECC’’) by Imetal would violate U.S.C. 16(f), those procedures are discretionary. A F. Supp. 131, 151 (D.D.C. 1982), aff’d. sub nom. Section 7 of the Clayton Act, 15 U.S.C. court need not invoke any of them unless it believes Maryland v. United States, 460 U.S. 1001 (1983) Section 18, in the markets for water- that the comments have raised significant issues (quoting Gillette Co., 406 F. Supp. at 716 (citations and that further proceedings would aid the court in omitted)); United States v. Alcan Aluminum, Ltd., washed and calcined kaolin and fused resolving those issues. See H.R. Rep. 93–1463, 93rd 605 F. Supp. 619, 622 (W.D. Ky. 1985). silica in the United States and in the

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