[Federal Register: December 15, 2005 (Volume 70, Number 240)]
[Notices]
[Page 74334-74350]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de05-85]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. SBC Communications Inc. and AT&T Corp.;
Competitive Impact Statement, Proposed Final Judgment, Complaint,
Amended Stipulation
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a Complaint, proposed Final
Judgment, Amended Stipulation, and Competitive Impact Statement have
been filed with the U.S. District Court for the District of Columbia in
United States v. SBC Communications Inc., Civil Case No. 1:05CV02102
(EGS). On October 27, 2005, the United States filed a complaint
alleging that the proposed acquisition of AT&T Corp. (``AT&T'') by SBC
Communications Inc. (``SBC'') would violate Section 7 of the Clayton
Act, 15 U.S.C. 18, by substantially lessening competition in the
provision of local private lines (also called ``special access'') and
other telecommunications services that rely on local private lines in
eleven metropolitan areas: Chicago; Dallas-Fort Worth; Detroit;
Hartford-New Haven, Connecticut; Indianapolis; Kansas City; Los
Angeles; Milawaukee; San Diego; San Francisco-San Jose; and St. Louis.
The proposal Final Judgment requires the defendants to divest assets in
those eleven metropolitan areas in order to proceed with SBC's $16
billion acquisition of AT&T. A Competitive Impact Statement filed by
the United States on November 16, 2005 describes the Complaint, the
proposed Final Judgment, the industry, and the remedies available to
private litigants who may have been injured by the alleged violation.
Copies of the Complaint, proposed Final Judgment, Amended
Stipulation, Competitive Impact Statement, and all further papers filed
with the Court in connection with this Complaint will be available for
inspection at the Antitrust Documents Group, Antitrust Division,
Liberty Place Building, Room 215, 325 7th Street, NW., Washington, DC
20503 (202-514-2481), and at the Office of the Clerk of the U.S.
District Court for the District of Columbia. Copies of these materials
may be obtained from the Antitrust Division upon request and payment of
the copying fee set by Department of Justice regulations.
Interested persons may submit comments in writing regarding the
proposed consent decree to the United States. Such comments must be
received by the Antitrust Division within sixty (60) days and will be
filed with the Court by the United States. Comments should be addressed
to Nancy Goodman, Chief, Telecommunications & Media Enforcement
Section, Antitrust Division, U.S. Department of Justice, 1401 H Street,
NW., Suite 8000, Washington, DC 20530 (202-514-5621). At the conclusion
of the sixty (60) day comment period, the U.S. District Court for the
District of Columbia may enter the proposed consent decree upon finding
that it serves the public interest.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
In the United States District Court for the District of Columbia
United States of America, United States Department of Justice,
Antitrust Division, 1401 H Street, NW., Suite 8000, Washington, DC
20530, Plaintiff; v. SBC Communications, Inc., 175 East Houston, San
Antonio, TX 78205; and AT&T Corp., One AT&T Way, Bedminster, NJ 07921,
Defendants
Case Number 1:05CV02102
Judge: Emmet G. Sullivan
Deck Type: Antitrust
Date Stamp: 10/27/2005
Complaint
The United States of America, acting under the direction of the
Attorney General of the United States, brings this civil action to
enjoin the merger of two of the largest providers of telecommunications
services in the United States, SBC Communications, Inc. (``SBC'') and
AT&T Corp. (``AT&T''), and alleges as follows:
1. On January 30, 2005, SBC entered into an agreement to acquire
AT&T. If approved, the transaction would create the nation's largest
provider of telecommunications services. Plaintiff seeks to enjoin this
transaction because it will substantially lessen competition for (a)
Local Private Lines that connect hundreds of commercial buildings in
SBC's franchised territory to a carrier's network or other local
destination, and (b) other telecommunications services that rely on
Local Private Lines.
2. SBC and AT&T compete in the sale of wireline telecommunications
services to retail and wholesale customers in the United States.
[[Page 74335]]
3. For hundreds of commercial buildings in the metropolitan areas
of Chicago, Illinois; Dallas-Fort Worth, Texas; Detroit, Michigan;
Hartford-New Haven, Connecticut; Indianapolis, Indiana; Kansas City,
Missouri; Los Angeles, California; Milwaukee, Wisconsin; San Diego,
California; San Francisco-San Jose, California; and St. Louis,
Missouri, SBC and AT&T are the only two firms that own or control a
direct wireline connection to the building. These building connections
are used to supply voice and data telecommunications services to
business customers. As described in this Complaint, the proposed merger
is likely to substantially reduce competition for Local Private Lines
and telecommunications services that rely on Local Private Lines to
those buildings.
I. Jurisdiction and Venue
4. This action is filed by the United States under Section 15 of
the Clayton Act, 15 U.S.C. 25, to prevent and restrain the Defendants
from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
5. SBC and AT&T are engaged in interstate commerce and in
activities substantially affecting interstate commerce. The Court has
jurisdiction over this action pursuant to Sections 15 and 16 of the
Clayton Act, 15 U.S.C. 25, 26, and 28 U.S.C. 1331, 1337.
6. SBC and AT&T transact business and are found in the District of
Columbia. Venue is proper under Section 12 of the Clayton Act, 15
U.S.C. 22, and 28 U.S.C. 1391(c).
II. The Defendants and the Transaction
7. SBC is a corporation organized and existing under the laws of
the State of Delaware, with its headquarters in San Antonio, Texas.
SBC, formerly Southwestern Bell, is a regional bell operating company
(``RBOC''), formed as part of the seven regional holding companies to
result from the breakup of AT&T's local telephone business in 1984. In
1996, SBC acquired another of the seven original holding companies,
Pacific Telesis, and in 1999 it acquired a third RBOC, Ameritech. SBC
acquired another incumbent local exchange carrier (``ILEC''), Southern
New England Telephone Corporation, in 1998. SBC's wireline
telecommunications operations currently serve around 52 million
switched access lines, including 27.5 million residential and 17.6
million business lines in 13 states. In 2004, SBC earned approximately
$36.9 billion in revenues from its wireline services, including almost
$13 billion attributable to business customers. SBC has fiber optic or
copper connections to virtually all of the commercial buildings in its
franchised territory.
8. AT&T is a corporation organized and existing under the laws of
the State of New York, with its headquarters in Bedminster, New Jersey.
AT&T is the nation's largest interexchange carrier (``IXC''), offering
traditional long distance telephone service, as well as one of the
largest competitive local exchange carriers (``CLEC''), offering local
network exchange and access for voice and data services. AT&T serves
consumers and businesses across the United States and around the globe,
and owns significant local network assets within SBC's 13-state
operating territory including direct fiber optic connections to
numerous commercial buildings. In 2004, AT&T earned approximately $30.5
billion in revenues, including $22.6 billion from business customers.
9. Pursuant to an Agreement and Plan of Merger dated January 30,
2005, SBC agreed to acquire AT&T for approximately $16 billion.
III. Trade and Commerce
A. Nature of Trade and Commerce
10. SBC owns and operates local telecommunications networks
throughout its territory and provides local and long distance voice and
data services to, inter alia, business customers and other
telecommunications carriers.
11. AT&T owns and operates local networks in dozens of metropolitan
areas in the United States, a substantial number of which are in SBC
territory. Like SBC, AT&T also provides local and long distance voice
and data services to business customers and other telecommunications
carriers. Significant numbers of AT&T's customers have locations in
SBC's franchised territory, and the two firms compete to serve those
wholesale and retail customers.
12. One element of the parties' local networks are local loops,
sometimes referred to as ``last-mile'' connections, which are typically
either copper or fiber-optic transmission facilities that connect
commercial buildings to a carrier's network. These last-mile
connections are a critically important asset for providing service to
business customers.
13. A Local Private Line is a dedicated, point-to-point circuit
offered over copper and/or fiber-optic transmission facilities that
originates and terminates within a single metropolitan area and
typically includes at least one local loop. Local Private Lines are
sold at both retail (to business customers) and wholesale (to other
carriers). SBC refers to local Private Line circuits as ``special
access.''
14. Depending on how they are configured, Local Private Lines can
be used to carry voice traffic, data, or a combination of the two.
Local Private Lines may be purchased as stand-alone products but are
also an important input to value-added voice and data
telecommunications services that are offered to business customers.
15. For the vast majority of commercial buildings in its territory,
SBC is the only carrier that owns a last-mile connection to the
building. Thus, in order to provide voice or data telecommunications
services to customers in those SBC-only buildings, competing carriers
typically must lease the connection from SBC as Local Private Line
service (special access).
16. For a small percentage of commercial buildings (though one that
accounts for a substantial percentage of customer demand and revenue),
SBC's CLEC competitors have built or acquired their own last-mile
fiber-optic connections, separate from SBC's, to connect their networks
to the buildings. The CLECs typically refer to buildings with these
connections as their ``lit buildings'' or ``on-net buildings.'' Once a
CLEC has incurred the high fixed cost to construct a last-mile
connection to a building, the CLEC can usually provide service to
business customers in the building at a lower marginal cost than it
would otherwise be able to do if it had to lease the connection from
the RBOC. It can also provide alternative access to other CLECs seeking
to serve business customers in the building.
17. AT&T is among leading CLECs in SBC's territory in the number of
buildings it has connected with its own last-mile fiber facilities. For
hundreds of buildings in SBC's territory, the only two carriers that
own or control the direct building connection are AT&T and SBC.
18. In the hundreds of buildings where AT&T is the only CLEC with a
last-mile connection, the merger of SBC and AT&T would reduce the
number of carriers with an owned or controlled last-mile connection
from two to one.
B. Relevant Product Markets
19. The relevant product markers affected by this transaction are
the markets for: (a) Local Private Lines, and (b) voice and data
telecommunications services that rely on Local Private Lines.
20. SBC is the dominant provider of Local Private Lines (special
access) in its franchised territory with approximately $4.4 billion in
special access sales in 2004. AT&T is one of SBC's largest competitors
with $311
[[Page 74336]]
million in Local Private Line sales in 2004, of which over $90 million
were in SBC territory.
21. Local Private Lines are a recognized service category among
telecommunications carriers and end-user business customers. Customers
typically purchase Local Private Lines in standard bandwidth increments
such as DS1 (``T1,'' 1.54 megabits per second), DS3 (44.74 megabits per
second), OC3 (155.52 megabits per second), and higher. Local Private
Lines can interconnect with industry-standard data networking and
telephone equipment, and can be ``channelized'' to carry various
amounts of voice and/or data traffic.
22. Local Private Lines are distinct from switched local exchange
telephone services. Switched local exchange lines route calls through a
voice switch in the local carrier's central office and do not
necessarily use a dedicated circuit. These switched circuits do not
offer the guaranteed bandwidth, high service levels, and security that
Local Private Lines provide.
23. Competing carriers often rely on Local Private Line (special
access) circuits to connect an end-user customer's location to their
networks, enabling the competitor to supply value-added data
networking, Internet access, local voice and long distance services to
the customer. Although carriers can provide some types of voice and
data services over switched local exchange lines (e.g., when an access
line is pre-subscribed to a long distance carrier), most large business
customers do not find those services to be a viable or cost-effective
substitute for voice and data telecommunications services provided via
Local Private Lines. In the event of a small, but significant,
nontransitory increase in price for either Local Private Lines or voice
and data telecommunications services provided via Local Private Lines,
insufficient customers would switch to switched circuits to render the
increase unprofitable.
C. Relevant Geographic Markets
24. The relevant geographic markets for both Local Private Lines,
as well as voice and data telecommunications services that rely on
Local Private Lines, are no broader than each metropolitan area and no
more narrow than each individual building.
IV. Anticompetitive Effects
25. SBC and AT&T are the only two carriers that own or control a
Local Private Line connection to many buildings in each region. The
merger would, therefore, effectively eliminate competition for
facilities-based Local Private Line service to those buildings, and
many retail and wholesale customers would be longer have AT&T as a
competitive alternative to SBC. Although other competitors might resell
Local Private Lines from SBC, those competitors would not be as
effective a competitive constraint because SBC would control the price
of the resold circuits. The merged firm would, therefore, have the
ability to raise price to retail and wholesale customers of Local
Private Lines.
26. In addition, because the cost of dedicated local access via
Local Private Line represents an important cost component of many
value-added voice and data telecommunications services provided over
such access, by (a) eliminating AT&T as the only competitive
alternative to SBC for such services with its own Local Private Line
connection to hundreds of buildings, and (b) depriving other carriers
seeking to provide such value-added services of the only fully-
facilities based wholesale competitive alternative to SBC in those
buildings, the merger would tend to lessen competition for retail voice
and data telecommunications services provided over dedicated access.
V. Entry
27. Although other CLECs can, theoretically, build their own fiber
connection to each building in response to a price increase by the
merged firm, such entry is a difficult, time-consuming, and expensive
process. Whether a CLEC builds a last mile connection to a given
building depends upon many factors, including:
a. The proximity of the building to the CLEC's existing network
interconnection points;
b. The capacity required at the customer's location (and thus the
revenue opportunity);
c. The availability of capital;
d. The existence of physical barriers, such as rivers and railbeds,
between the CLEC's network and the customer's location; and
e. The ease or difficulty of securing the necessary consent from
building owners and municipal officials.
28. The costs of building a last-mile connection vary substantially
for each location. Even if all the above criteria favor the
construction of a last-mile connection in a particular case, a single
such connection typically costs tens, sometimes hundreds, of thousands
of dollars to build and activate. Thus, CLECs will typically only build
in to a particular building after they have secured a customer contract
of sufficient size to justify the anticipated construction costs for
that building.
29. Although entry may occur in response to a post-merger price
increase in some of buildings where AT&T is the only connected CLEC,
the conditions for entry are unlikely to be met in hundreds of those
buildings. Thus, entry is unlikely to eliminate the competitive harm
that would likely result from the proposed merger.
VI. Violation Alleged
30. The United States hereby incorporates paragraphs 1 through 29.
31. Pursuant to an Agreement and Plan of Merger dated January 30,
2005, SBC and AT&T intend to merge their businesses.
32. The effect of the proposed acquisition of AT&T by SBC would be
to lessen competition substantially in interstate trade and commerce in
numerous geographic markets for (a) Local Private Lines and (b) voice
and data telecommunications services that rely on Local Private Lines,
in violation of Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
33. The transaction would likely have the following effects, among
others:
a. competition in the provision and sale of Local Private Lines in
numerous geographic markets would be eliminated or substantially
lessened;
b. competition in the provision and sale of voice and data
telecommunications services that rely on Local Private Lines in
numerous geographic markets would be substantially lessened; and
c. prices for Local Private Lines, as well as voice and data
telecommunications services provided via Local Private Lines, would
likely increase to levels above those that would prevail absent the
merger.
VII. Prayer for Relief
The United States requests:
34. That SBC's proposed acquisition of AT&T be adjudged to violate
Section 7 of the Clayton Act, 15 U.S.C. 18;
35. That Defendants be permanently enjoined and restrained from
carrying out the Agreement and Plan of Merger dated January 30, 2005 or
from entering into or carrying out any agreement, understanding, or
plan by which SBC would merge with or acquire AT&T, its capital stock
or any of its assets;
36. That the United States be awarded costs of this action; and
37. That the United States have such other relief as the Court may
deem just and proper.
Dated: October 27, 2005.
Respectfully submitted,
[[Page 74337]]
For Plaintiff United States:
Thomas O. Barnett,
Acting Assistant Attorney General.
J. Bruce McDonald,
Deputy Assistant Attorney General.
J. Robert Krammer II,
Director of Operations.
Nancy M. Goodman,
Chief, Telecommunications and Media Enforcement Section (D.C. Bar No
251694).
Laury E. Bobbish,
Assistant Chief, Telecommunications and Media Enforcement Section.
Lawrence M. Frankel, (D.C. Bar No. 441532).
Claude F. Scott, Jr. (D.C. Bar No. 414906).
Mary N. Strimel (D.C. Bar No. 455303).
Matthew C. Hammond
Lauren J. Fishbein (D.C. Bar No. 451889).
Conrad J. Smucker (D.C. Bar No. 434590).
Jeremiah M. Luongo
Jared A. Hughes
David T. Blonder
William Lindsey Wilson
William B. Michael
Trial Attorneys, U.S. Department of Justice, Antitrust Division,
Telecommunications and Media Enforcement Section, 1401 H Street,
NW., Suite 8000, Washington, DC 20530. Telephone (202) 514-5621.
Facsimile: (202) 514-6381.
In the United States District Court for the District of Columbia
United States of America, Plaintiff; v. SBC Communications, Inc. and
AT&T Corp., Defendants
Civil Action No. 1:05CV02102 (EGS)
Final Judgment
Whereas, plaintiff, United States of America, filed its Complaint
on October 27, 2005, plaintiff and defendants, SBC Communications Inc.
(``SBC'') and AT&T Corp. (``AT&T''), by their respective attorneys,
have consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law, and without this Final
Judgment constituting any evidence against or admission by an party
regarding any issue of fact or law;
And Whereas, defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
And Whereas, the essence of this Final Judgment is the prompt and
certain divestiture of certain rights or assets by the defendants to
assure that competition is not substantially lessened;
And Whereas, plaintiff requires defendants to make certain
divestitures for the purpose of remedying the loss of competition
alleged in the Complaint;
And Whereas, defendants have represented to the United States that
the divestitures required below can and will be made and that
defendants will later raise no claim of hardship or difficulty as
grounds for asking the Court to modify any of the divestiture
provisions contained below;
Now Therefore, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it its ordered, adjudged, and decreed:
I. Jurisdiction
This Court has jurisdiction over the subject matter of and each of
the parties to this action. The Complaint states a claim upon which
relief may be granted against defendants under Section 7 of the Clayton
Act, as amended (15 U.S.C. 18).
II. Definitions
As used in this Final Judgment:
A. ``SBC'' means defendant SBC Communications Inc., a Delaware
corporation with its headquarters in San Antonio, Texas, its successors
and assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and their directors, officers,
managers, agents, and employees.
B. ``At&T'' means defendant AT&T Corp., a New York corporation with
its headquarters in Bedminster, New Jersey, its successors and assigns,
and its subsidiaries, divisions, groups, affiliates, partnerships and
joint ventures, and their directors, officers, managers, agents, and
employees.
C. ``Acquirer'' or ``Acquirers'' means the entity or entities to
whom defendants divest the Divestiture Assets.
D. ``Divestiture Assets'' means IRUs for Lateral Connections to the
locations listed in Appendix A and sufficient transport as described
below and all additional rights necessary to enable those assets to be
used by the Acquirer to provide telecommunications services. The
Divestiture Assets shall include IRUs for transport facilities
sufficient to connect the Lateral Connections to locations mutually
agreed upon by defendants and the Acquirer, subject to the approval of
the United States in its sole judgment. The term ``Divestiture Assets''
shall be construed broadly to accomplish the complete divestiture of
assets and the purposes of this Final Judgment and is subject to the
following:
(1) With the approval of the United States, in its sole discretion,
in locations listed in Appendix A for which AT&T's interest in the
fiber serving the location is an IRU rather than full ownership and if
the United States determines that such an alternative disposition will
meet the aims of this Final Judgment, defendants may (1) Enter into a
dark fiber service agreement or other commercial arrangement for the
Lateral Connections and associated transport with the Acquirer or (2)
relinquish its IRU rights in the greater of (i) eight (8) fiber strands
or (ii) one-half of the currently unused fiber strands in AT&T's
facilities serving the locations, measured at the time of the filing of
the Complaint, back to the owner of the fiber; and
(2) With the approval of the United States, in its sole discretion,
and at the Acquirer's option, the Divestiture Assets may be modified to
exclude assets and rights that are not necessary to meet the aims of
this Final Judgment.
E. ``IRU'' means indefeasible right of use, a long-term leasehold
interest that gives the holder the right to use specified strands of
fiber in a telecommunications facility. An IRU granted by defendants
under this Final Judgment shall (1) Be for a minimum of 10 years; (2)
not require the Acquirer to pay monthly or other recurring fee to
preserve or make use of its rights; (3) include all additional rights
and interests necessary to enable the IRU to be used by the Acquirer to
provide telecommunications services; and (4) contain other commercially
reasonable and customary terms, including terms for payment to the
grantor for ancillary services, such as maintenance fees on a per
occurrence basis; and (5) not unreasonably limit the right of the
Acquirer to use the asset as it wishes (e.g., the Acquirer shall be
permitted to splice into the IRU fiber, though such splice points must
be mutually agreed upon by Defendants and Acquirer).
F. ``Lateral Connection'' means fiber strands from the point of
entry of the building to the splice point with fiber used to serve
different buildings and shall consist of the greater of (1) eight (8)
fiber strands or (2) one-half of the currently unused fiber strands in
AT&T's facilities serving the building measured at the time of the
filing of the complaint. The fiber strands may be provided from those
owned or controlled by either SBC or AT&T, as mutually agreed by
defendants and Acquirer.
III. Applicability
A. This Final Judgment applies to SBC and AT&T, as defined above,
and all other persons in active concert or participation with any of
them who receive actual notice of this Final Judgment by personal
service or otherwise.
B. Defendants shall require, as a condition of the sale or other
disposition of all or substantially all of their assets or of lesser
business units that include the Divestiture Assets, that the purchasers
agree to be bound by the
[[Page 74338]]
provisions of this Final Judgment, provided, however, that defendants
need to obtain such an agreement from the Acquirers.
IV. Divestitures
A. Defendants are ordered and directed, within 120 calendar days
after the closing of SBC's acquisition of AT&T, or five (5) days after
notice of the entry of this Final Judgment by the Court, whichever is
later, to divest the Divestiture Assets in a manner consistent with
this Final Judgment to an acquirer and on terms acceptable to the
United States in its sole discretion. The United States , in its sole
discretion, may agree to one or more extensions of this time period not
to exceed sixty (60) days in total, and shall notify the Court in such
circumstances. If approval or consent from any government unit is
necessary with respect to divestiture of the Divestiture Assets by
defendants or the Divestiture Trustee and if applications or requests
for approval or consent have been filed with the appropriate
governmental unit within 120 calendar days after the closing of SBC's
acquisition of AT&T, but an order or other dispositive action on such
applications has not been issued before the end of the period permitted
for divestiture, the period shall be extended with respect to
divestiture of those Divestiture Assets for which governmental approval
or consent has not been issued until five (5) days after such approval
or consent is received. Defendants agree to use their best efforts to
divest the Divestiture Assets and to seek all necessary regulatory or
other approvals or consents necessary for such divestitures as
expeditiously as possible. This Final Judgment does not limit the
Federal Communications Commission's exercise of its regulatory powers
and process with respect to the Divestiture Assets. Authorization by
the Federal Communications Commission to conduct the divestiture of a
Divestiture Asset in a particular manner will not modify any of the
requirements of this decree.
B. In accomplishing the divestitures ordered by this Final
Judgment, defendants promptly shall make known, by usual and customary
means, the availability of the Divestiture Assets. Defendants shall
inform any person making inquiry regarding a possible purchase of the
Divestiture Assets that they are being divested pursuant to this Final
Judgment and provide that person with a copy of this Final Judgment.
Defendants shall offer to furnish to all prospective Acquirers, subject
to customary confidentiality assurances, all information and documents
relating to the Divestiture Assets customarily provided in a due
diligence process except such information or documents subject to the
attorney-client or work-product privileges. Defendants shall make
available such information to the United States at the same time that
such information is made available to any other person.
C. Defendants shall permit prospective Acquirers of the Divestiture
Assets to have reasonable access to personnel and to make inspections
of the physical facilities of the Divestiture Assets; access to any and
all environmental, zoning, and other permit documents and information;
and access to any and all financial, operational, or other documents
and information customarily provided as part of a due diligence
process.
D. Defendants shall warrant to all Acquirers of the Divestiture
Assets that each asset will be operation on the date of sale.
E. Defendants shall not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Assets.
F. At the option of the Acquirers, defendants shall enter into a
contract for a period of up to one (1) year for transition services
customarily necessary to maintain, operate, provision, monitor, or
otherwise support the Divestiture Assets. The terms and conditions of
any contractual arrangement meant to satisfy this provision must be
reasonably related to market conditions.
G. Defendants shall warrant to the Acquirer of the Divestiture
Assets that there are no material defects in the environmental, zoning,
or other permits pertaining to the operation of each asset, and that
following the sale of the Divestiture Assets, defendants will not
undertake, directly or indirectly, any challenges to the environmental,
zoning, or other permits relating to the operation of the Divestiture
Assets.
H. Unless the United States otherwise consents in writing, the
divestitures pursuant to Section IV, or by trustee appointed pursuant
to Section V, of this Final Judgment, shall include the entire
Divestiture Assets, and shall be accomplished in such a way as to
satisfy the United States, in its sole discretion, that the Divestiture
Assets can and will be used by the Acquirer as part of a viable,
ongoing telecommunications business. Divestiture of the Divestiture
Assets may be made to more than one Acquirer, provided that (i) all
Divestiture Assets in a given metropolitan area are divested to a
single Acquirer unless otherwise approved by the United States, in its
sole discretion, and (ii) in each instance it is demonstrated to the
sole satisfaction of the United States that the Divestiture Assets will
remain viable and the divestiture of such assets will remedy the
competitive harm alleged in the Complaint. The divestitures, whether
pursuant to Section IV or Section V of this Final Judgment,
(1) shall be made to an Acquirer (or Acquirers) that, in the United
State's sole judgment, has the intent and capability (including the
necessary managerial, operation, technical, and financial capability)
of competing effectively in the provision of telecommunications
services; and
(2) shall be accomplished so as to satisfy the United States, in
its sole discretion, that none of the terms of any agreement between an
Acquirer (or Acquirers) and defendants gives defendants the ability
unreasonably to raise the Acquirer's costs, to lower the Acquier's
efficiency, or otherwise to interfere in the ability of the Acquirer to
compete effectively.
I. To the extent leases, contracts, agreements, intellectual
property rights, licenses, or other commitments with third-parties are
not assignable or transferrable without the consent of the licensor or
other third parties, defendants shall use their best efforts to obtain
those consents.
V. Appointment of Trustee
A. If defendants have not divested the Divestiture Assets within
the time period specified in Section IV(A), defendants shall notify the
United States of that fact in writing, specifically identifying the
Divestiture Assets that have not been divested. Upon application of the
United States, the Court shall appoint a trustee selected by the United
States and approved by the Court to effect the divestiture of the
Divestiture Assets.
B. After the appointment of a trustee becomes effective, only the
trustee shall have the right to sell the Divestiture Assets. The
trustees shall have the power and authority to accomplish the
divestiture to Acquirers acceptable to the United States, in its sole
judgment, at such price and on such terms as are then obtainable upon
reasonable effort by the trustee, subject to the provisions of Sections
IV, V, and VI of this Final Judgment, and shall have such other powers
as this Court deems appropriate. Subject to Section V(D) of this Final
Judgment, the trustee may hire at the cost and expense of defendants
any investment bankers, attorneys, technical experts, or other agents,
who shall be solely accountable to the trustee,
[[Page 74339]]
reasonably necessary in the trustee's judgment to assist in the
divestiture.
C. Defendants shall not object to a sale by the trustee on any
ground other than the trustee's malfeasance. Any such objections by
defendants must be conveyed in writing to the United States and the
trustee within ten (10) calendar days after the trustee has provided
the notice required under Section VI.
D. The trustee shall serve at the cost and expense of defendants,
on such terms and conditions as the plaintiff approves, and shall
account for all monies derived from the sale of the assets sold by the
trustee and all costs and expenses so incurred. After approval by the
Court of the trustee's accounting, including fees for its services and
those of any professionals and agents retained by the trustee, all
remaining money shall be paid to defendants and the trust shall then be
terminated. The compensation of the trustee and any professionals and
agents retained by the trustee shall be reasonable in light of the
value of the Divestiture Assets and based on a fee arrangement
providing the trustee with an incentive based on the price and terms of
the divestiture and the speed with which it is accomplished, but
timeliness is paramount.
E. Defendants shall use their best efforts to assist the trustee in
accomplishing the required divestitures, including their best efforts
to effect all necessary regulatory or other approvals or consents and
will provide necessary representations or warranties as appropriate,
related to the sale of the Divestiture Assets. The trustee and any
consultants, accountants, attorneys, technical experts, and other
persons retained by the trustee shall have full and complete access to
the personnel, books, records, and facilities related to the
Divestiture Assets, and defendants shall develop financial and other
information relevant to the Divestiture Assets as the trustee may
reasonably request, subject to reasonable protection for trade secret
or other confidential research, development, or commercial information.
Defendants shall take no action to interfere with or to impede the
trustee's accomplishment of the divestiture.
F. After its appointment, the trustee shall file monthly reports
with the United States and the Court setting forth the trustee's
efforts to accomplish the divestiture ordered under this Final
Judgment. To the extent such reports contain information that the
trustee deems confidential, such reports shall not be filed in the
public docket of the Court. Such reports shall include the name,
address, and telephone number of each person who, during the preceding
month, made an offer to acquire, expressed an interest in acquiring,
entered into negotiations to acquire, or was contacted or made an
inquiry about acquiring, any interest in the Divestiture Assets, and
shall describe in detail each contact with any such person. The trustee
shall maintain full records of all efforts made to divest the
Divestiture Assets.
G. If the trustee has not accomplished such divestiture within six
months after its appointment, the trustee shall promptly file with the
Court a report setting forth (1) The trustee's efforts to accomplish
the required divestiture, (2) the reasons, in the trustee's judgment,
why the required divestiture has not been accomplished, and (3) the
trustee's recommendations. To the extent such reports contain
information that the trustee deems confidential, such reports shall not
be filed in the public docket of the Court. The trustee shall at the
same time furnish such report to the plaintiff who shall have the right
to make additional recommendations consistent with the purpose of the
trust. The Court thereafter shall enter such orders as it shall deem
appropriate to carry out the purpose of the Final Judgment, which may,
if necessary, include extending the trust and the term of the trustee's
appointment by a period requested by the United States.
H. In addition, notwithstanding any provision to the contrary, the
United States, in its sole discretion, may require defendants to
include additional assets, or allow, with the written approval of the
United States, defendants to substitute substantially similar assets,
which substantially relate to the Divestiture Assets to be divested by
the trustee to facilitate prompt divestiture to an acceptable Acquirer
or Acquirers.
VI. Notice of Proposed Divestiture
A. Within two (2) business days following execution of a definitive
divestiture agreement, defendants or the trustee, whichever is then
responsible for effecting the divestiture required herein, shall notify
the United States of any proposed divestiture required by Section IV or
V of this Final Judgment. If the trustee is responsible, it shall
similarly notify defendants. The notice shall set forth the details of
the proposed divestiture and list the name, address, and telephone
number of each person not previously identified who offered or
expressed an interest in or desire to acquire any ownership interest in
the Divestiture Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United
States of such notice, the United States may request from defendants,
the proposed Acquirer or Acquirers, any other third party, or the
trustee, if applicable, additional information concerning the proposed
divestiture, the proposed Acquirer or Acquirers, and any other
potential Acquirer. Defendants and the trustee shall furnish any
additional information requested within fifteen (15) calendar days of
the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or
within twenty (20) calendar days after the United States has been
provided the additional information requested from defendants, the
proposed Acquirer or Acquirers, any third party, and the trustee,
whichever is later, the United States shall provide written notice to
defendants and the trustee, if there is one, stating whether or not it
objects to the prosed divestiture. If the United States provides
written notice that it does not object, the divestiture may be
consummated, subject only to defendants' limited right to object to the
sale under Section V(C) of this Final Judgment. Absent written notice
that the United States does not object to the proposed Acquirer or upon
objection by the United States, a divestiture proposed under Section IV
or Section V shall not be consummated. Upon objection by defendants
under Section V(C), a divestiture proposed under Section V shall not be
consummated unless approved by the Court.
VII. Financing
Defendants shall not finance all or any part of any part of any
purchase made pursuant to Section IV or V of this Final Judgment.
VIII. Preservation of Assets
Until the divestiture required by this Final Judgment has been
accomplished, defendants shall take all steps necessary to comply with
the Stipulation signed by defendants and the United States. Defendants
shall take no action that would jeopardize the divestiture ordered by
this Court.
IX. Affidavits
A. Within twenty (20) calendar days of the filing of the Complaint
in this matter, and every thirty (30) calendar days thereafter until
the divestiture has been completed under Section IV or V, defendants
shall deliver to the United States an affidavit as to the face and
manner of its compliance with Section IV or V of this Final Judgment.
Each such affidavit shall include the name, address, and telephone
number of each person who, during the preceding thirty
[[Page 74340]]
(30) days, made an offer to acquire, expressed an interest in
acquiring, entered into negotiations to acquire, or was contacted or
made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person
during that period. Each such affidavit shall also include a
description of the efforts defendants have taken to solicit buyers for
the Divestiture Assets, and to provide required information to
prospective Acquirers, including the limitations, if any, on such
information. Assuming the information set forth in the affidavit is
true and complete, any objection by the United States to information
provided by defendants, including limitation on information, shall be
made within fourteen (14) calendar days of the receipt of such
affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, defendants shall deliver to the United States an
affidavit that describes in reasonable detail all actions defendants
have taken and all steps defendants have implemented on an ongoing
basis to comply with Section VIII of this Final Judgment. Defendants
shall deliver to the United States an affidavit describing any changes
to the efforts and actions outlined in defendants' earlier affidavits
filed pursuant to this section within fifteen (15) calendar days after
the change is implemented.
C. Defendants shall keep all records of all efforts made to
preserve and divest the Divestiture Assets until one year after such
divestiture has been completed.
X. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of determining whether the Final Judgment should be
modified or vacated, and subject to any legally recognized privilege,
from time to time duly authorized representatives of the United States
Department of Justice, including consultants and other persons retained
by the United States, shall, upon written request of a duly authorized
representative of the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to defendants, be
permitted:
(1) Access during defendants' office hours to inspect and copy, or
at plaintiff's option, to require that defendants provide copies of,
all books, ledgers, accounts, records and documents in the possession,
custody, or control of defendants, relating to any matters contained in
this Final Judgment; and
(2) To interview, either informally or on the record, defendants'
officers, employees, or agents, who may have their individual counsel
present, regarding such matters. The interviews shall be subject to the
reasonable convenience of the interviewee and without restraint or
interference by defendants.
B. Upon the written request of a duly authorized representative of
the Assistant Attorney General in charge of the Antitrust Division,
defendants shall submit written reports, under oath if requested,
relating to any of the matters contained in this Final Judgment as may
be requested.
C. No information or documents obtained by the means provided in
this section shall be divulged by the United States to any person other
than an authorized representative of the executive branch of the United
States, except in the course of legal proceedings to which the United
States is a party (including grand jury proceedings), or for the
purpose of securing compliance with this Final Judgment, or as
otherwise required by law.
D. If at the time information or documents are furnished by
defendants to the United States, defendants represent and identify in
writing the material in any such information or documents to which a
claim of protection may be asserted under rule 26(c)(7) of the Federal
Rules of Civil Procedure, and defendants mark each pertinent page of
such material, ``Subejct to claim of protection under rule 26(c)(7) of
the Federal Rules of Civil Procedure,'' then the United States shall
give defendants ten (10) calendar days notice prior to divulging such
material in any legal proceeding (other then grand jury proceedings).
XI. No Reacquisition
Defendants may not reacquire (or lease back without the approval of
the United States, in its sole discretion) any part of the Divestiture
Assets during the term of this Final Judgment.
XII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIII. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall
expire ten years from the date of its entry.
XIV. Public Interest Determination
The parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. 16, including making copies
available to the public of this Final Judgment, the Competitive Impact
Statement, and any comments thereon and the United States' response to
comments. Based upon the record before the Court, which includes the
Competitive Impact Statement and any comments and response to comments
filed with the Court, entry of this Final Judgment is in the public
interest.
Date:
-----------------------------------------------------------------------
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16.
-----------------------------------------------------------------------
United States District Judge
Appendix A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Address City State Zip Metropolitan Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Renaissance Blvd..................... Oakbrook Terrace....... IL.............. 60181 Chicago.
10 N Martingale Rd................... Schaumburg............. IL.............. 60173 Chicago.
10024 Skokie Blvd.................... Skokie................. IL.............. 60077 Chicago.
11 S La Salle St..................... Chicago................ IL.............. 60603 Chicago.
1400 Waukegan Rd..................... McGaw Park............. IL.............. 60085 Chicago.
1666 E Touhy Ave..................... Des Plaines............ IL.............. 60018 Chicago.
200 Wilmot Rd........................ Deerfield.............. IL.............. 60015 Chicago.
2300 60th St......................... Kenosha................ WI.............. 53140 Chicago.
2320 N Kenmore Ave................... Chicago................ IL.............. 60614 Chicago.
243 S Wabash Ave..................... Chicago................ IL.............. 60604 Chicago.
26 W 171 Roosevelt Rd................ Wheaton................ IL.............. 60187 Chicago.
[[Page 74341]]
2801 80th St......................... Kenosha................ WI.............. 53140 Chicago.
3050 Highland Pkwy................... Downers Grove.......... IL.............. 60515 Chicago.
3060 W Salt Creek Ln................. Arlington Heights...... IL.............. 60005 Chicago.
340 N Milwaukee Ave.................. Vernon Hills........... IL.............. 60061 Chicago.
50 S La Salle St..................... Chicago................ IL.............. 60603 Chicago.
600 N Rte 45......................... Libertyville........... IL.............. 60048 Chicago.
610 S Canal St....................... Chicago................ IL.............. 60607 Chicago.
610 S Maple Ave...................... Oak Park............... IL.............. 60304 Chicago.
640 N La Salle Dr.................... Chicago................ IL.............. 60610 Chicago.
7000 High Grove Blvd................. Burr Ridge............. IL.............. 60521 Chicago.
770 N Halsted St..................... Chicago................ IL.............. 60622 Chicago.
7955 S Cass Ave...................... Darien................. IL.............. 60561 Chicago.
9700 S Cass Ave...................... Argonne................ IL.............. 60439 Chicago.
10935 Estate Ln...................... Dallas................. TX.............. 75238 Dallas-Fort Worth.
1145 Empire Central Pl............... Dallas................. TX.............. 75247 Dallas-Fort Worth.
1233 Regal Row....................... Dallas................. TX.............. 75247 Dallas-Fort Worth.
12750 Merit Dr....................... Dallas................. TX.............. 75251 Dallas-Fort Worth.
12800 Abrams Rd...................... Dallas................. TX.............. 75243 Dallas-Fort Worth.
1330 River Bend Rd................... Dallas................. TX.............. 75247 Dallas-Fort Worth.
13510 N Central Expy................. Dallas................. TX.............. 75243 Dallas-Fort Worth.
13536 N Central Expy................. Dallas................. TX.............. 75243 Dallas-Fort Worth.
13725 Montfort Dr.................... Dallas................. TX.............. 75240 Dallas-Fort Worth.
1508 E Mockingbird Ln................ Dallas................. TX.............. 75214 Dallas-Fort Worth.
1701 N Greenville Ave................ Richardson............. TX.............. 75081 Dallas-Fort Worth.
1900 S Central Expy.................. Dallas................. TX.............. 75215 Dallas-Fort Worth.
2220 Campbell Creek Blvd............. Richardson............. TX.............. 75082 Dallas-Fort Worth.
2280 Greenville Ave.................. Dallas................. TX.............. 75206 Dallas-Fort Worth.
2534 Royal Ln........................ Dallas................. TX.............. 75229 Dallas-Fort Worth.
2735 N Stemmons Freeway.............. Dallas................. TX.............. 75207 Dallas-Fort Worth.
3890 W Northwest Hwy................. Dallas................. TX.............. 75220 Dallas-Fort Worth.
3911 Sthwy 12 Loop................... Dallas................. TX.............. 75236 Dallas-Fort Worth.
3939 Valley View..................... Farmers Branch......... TX.............. 75244 Dallas-Fort Worth.
4001 Airport Frwy Rt 59..... For Worth.............. TX.............. 76117 Dallas-Fort Worth.
4201 Spring Valley Rd................ Dallas................. TX.............. 75244 Dallas-Fort Worth.
4849 W Illinois...................... Dallas................. TX.............. 75211 Dallas-Fort Worth.
6011 Lemmon Ave...................... Dallas................. TX.............. 75209 Dallas-Fort Worth.
7517 Campbell Rd..................... Dallas................. TX.............. 75248 Dallas-Fort Worth.
7834 C F Hawn Fwy.................... Dallas................. TX.............. 75217 Dallas-Fort Worth.
7920 Belt Line Rd.................... Dallas................. TX.............. 75254 Dallas-Fort Worth.
801 Main St.......................... Dallas................. TX.............. 75202 Dallas-Fort Worth.
12225 Stephens Rd.................... Warren................. MI.............. 48089 Detroit-Ann Arbor.
12345 Nine Mile...................... Warren................. MI.............. 48090 Detroit-Ann Arbor.
1235 E Big Beaver Rd................. Troy................... MI.............. 48083 Detroit-Ann Arbor.
18101 Oakwood Blvd................... Dearborn............... MI.............. 48120 Detroit-Ann Arbor.
20 Oak Hollow St..................... Southfield............. MI.............. 48034 Detroit-Ann Arbor.
201 W Fort St........................ Detroit................ MI.............. 48226 Detroit-Ann Arbor.
2050 Auburn Rd....................... Auburn Hills........... MI.............. 48326 Detroit-Ann Arbor.
25400 Denso.......................... Southfield............. MI.............. 48034 Detroit-Ann Arbor.
26400 Southfield Rd.................. Lathrup Village........ MI.............. 48076 Detroit-Ann Arbor.
26600 Telegraph Rd................... Southfield............. MI.............. 48034 Detroit-Ann Arbor.
27500 Drake Rd....................... Farmington Hills....... MI.............. 48331 Detroit-Ann Arbor.
29129 Ecorse Rd...................... Romulus................ MI.............. 48174 Detroit-Ann Arbor.
32991 Hamilton Ct E.................. Farmington Hills....... MI.............. 48334 Detroit-Ann Arbor.
3800 Howard Rd....................... Farmington Hills....... MI.............. 48331 Detroit-Ann Arbor.
38281 Schoolcraft Rd................. Livonia................ MI.............. 48150 Detroit-Ann Arbor.
3937 Campus Dr....................... Pontiac................ MI.............. 48341 Detroit-Ann Arbor.
40 Oak Hollow St..................... Southfield............. MI.............. 48034 Detroit-Ann Arbor.
500 Griswold St...................... Detroit................ MI.............. 48236 Detroit-Ann Arbor.
500 Kirts Rd......................... Troy................... MI.............. 48088 Detroit-Ann Arbor.
500 Renaissance Ctr.................. Detroit................ MI.............. 48243 Detroit-Ann Arbor.
911 W Big Beaver Rd.................. Troy................... MI.............. 48084 Detroit-Ann Arbor.
1 Atlantic St........................ Bridgeport............. CT.............. 06604 Hartford-New-Haven.
10 Univac Ln......................... Windsor................ CT.............. 06095 Hartford-New-Haven.
102 Addison Rd....................... Windsor................ CT.............. 06095 Hartford-New-Haven.
121 Wawarme St....................... Hartford............... CT.............. 06114 Hartford-New-Haven.
125 Powder Forest Dr................. Simsbury............... CT.............. 06089 Hartford-New-Haven.
199 Benson Rd........................ Middlebury............. CT.............. 06762 Hartford-New-Haven.
20 Old Windsor Rd.................... Bloomfield............. CT.............. 06002 Hartford-New-Haven.
200 Grove St......................... New Haven.............. CT.............. 06511 Hartford-New-Haven.
2000 Day Hill Rd..................... Windsor................ CT.............. 06095 Hartford-New-Haven.
3 Waterside Xing..................... Windsor................ CT.............. 06095 Hartford-New-Haven.
300 Kensington Ave................... New Britain............ CT.............. 06051 Hartford-New-Haven.
[[Page 74342]]
32 Valley St......................... Bristol................ CT.............. 06010 Hartford-New-Haven.
45 Glover Ave........................ Norwalk................ CT.............. 06850 Hartford-New-Haven.
500 Day Hill Rd...................... Windsor................ CT.............. 06095 Hartford-New-Haven.
550 Marshall Phelps Rd............... Windsor................ CT.............. 06095 Hartford-New-Haven.
7 Waterside Xing..................... Windsor................ CT.............. 06095 Hartford-New-Haven.
71 Deerfield Ln...................... Meriden................ CT.............. 06450 Hartford-New-Haven.
11313 US Pkwy........................ Fishers................ IN.............. 46038 Indianapolis.
1481 W 10th St....................... Indianapolis........... IN.............. 46202 Indianapolis.
1600 Albany St....................... Beech Grove............ IN.............. 46107 Indianapolis.
1800 N Meridian St................... Indianapolis........... IN.............. 46202 Indianapolis.
200 W 103rd St....................... Indianapolis........... IN.............. 46280 Indianapolis.
250N Shadeland Ave................... Indianapolis........... IN.............. 46219 Indianapolis.
302 S State Ave...................... Indianapolis........... IN.............. 46201 Indianapolis.
307 Sthwy 37......................... Indianapolis........... IN.............. 46204 Indianapolis.
3120 N Post Rd....................... Indianapolis........... IN.............. 46226 Indianapolis.
3210 E 96th St....................... Carmel................. IN.............. 46240 Indianapolis.
3266 N Meridian St................... Indianapolis........... IN.............. 46208 Indianapolis.
3308 N Mitthoeffer Rd................ Indianapolis........... IN.............. 46236 Indianapolis.
402 Kentucky Ave..................... Indianapolis........... IN.............. 46225 Indianapolis.
4550 Victory Ln...................... Indianapolis........... IN.............. 46203 Indianapolis.
46 E Ohio St......................... Indianapolis........... IN.............. 46204 Indianapolis.
4880 Century Plaza Rd................ Indianapolis........... IN.............. 46254 Indianapolis.
4919 W 78th St....................... Indianapolis........... IN.............. 46268 Indianapolis.
5000 W 86th St....................... Indianapolis........... IN.............. 46268 Indianapolis.
5380 W 81St.......................... Indianapolis........... IN.............. 46268 Indianapolis.
5520 W 76th St....................... Indianapolis........... IN.............. 46204 Indianapolis.
5804 Churchman Byp................... Beech Grove............ IN.............. 46203 Indianapolis.
5940 W Raymond St.................... Indianapolis........... IN.............. 46241 Indianapolis.
6270 Corporate Dr.................... Indianapolis........... IN.............. 46278 Indianapolis.
6612 E 75th St....................... Indianapolis........... IN.............. 46250 Indianapolis.
6640 Parkdale Pl..................... Indianapolis........... IN.............. 45254 Indianapolis.
6666 E 75th St....................... Indianapolis........... IN.............. 46250 Indianapolis.
6810 N Shadeland Ave................. Indianapolis........... IN.............. 46220 Indianapolis.
6850 Parkdale Pl..................... Indianapolis........... IN.............. 46254 Indianapolis.
700 W 16th St........................ Indianapolis........... IN.............. 46202 Indianapolis.
7240 Shadeland Station Way........... Indianapolis........... IN.............. 46256 Indianapolis.
7301 Woodland Dr..................... Indianapolis........... IN.............. 46278 Indianapolis.
7444 Shadeland Station Way........... Indianapolis........... IN.............. 46256 Indianapolis.
7445 Company Dr...................... Indianapolis........... IN.............. 46237 Indianapolis.
755 E Main St........................ Greenwood.............. IN.............. 46143 Indianapolis.
8101 Clearvista Pkwy................. Indianapolis........... IN.............. 46256 Indianapolis.
8111 S Emerson Ave................... Indianapolis........... ................ 46237 Indianapolis.
8320 Allison Point Trl............... Indianapolis........... IN.............. 46250 Indianapolis.
8450 Northwest Blvd.................. Indianapolis........... IN.............. 46278 Indianapolis.
8555 River Rd........................ Indianapolis........... IN.............. 46240 Indianapolis.
8600 Allisonville Rd................. Indianapolis........... IN.............. 46250 Indianapolis.
8600 Roberts Dr N.................... Fishers................ IN.............. 46038 Indianapolis.
8650 Commerce Park Pl................ Indianapolis........... IN.............. 46268 Indianapolis.
8677 Logo 7 Ct....................... Indianapolis........... IN.............. 46219 Indianapolis.
8802 N Meridan St.................... Indianapolis........... IN.............. 46260 Indianapolis.
8820 S Meridan St.................... Indianapolis........... IN.............. 46217 Indianapolis.
8868 E 56th St....................... Indianapolis........... IN.............. 46216 Indianapolis.
8940 Vincennes Cir................... Indianapolis........... IN.............. 46268 Indianapolis.
9100 Purdue Rd....................... Indianapolis........... IN.............. 46268 Indianapolis.
941 N Meridan St..................... Indianapolis........... IN.............. 46204 Indianapolis.
9601 E 21st St....................... Indianapolis........... IN.............. 46229 Indianapolis.
9650 E Washington St................. Indianapolis........... IN.............. 46229 Indianapolis.
9660 E Washington St................. Indianapolis........... IN.............. 46229 Indianapolis.
9704 Beaumont Rd..................... Ft. Benjamin Harrison.. IN.............. 46216 Indianapolis.
1 Royal Way.......................... Kansas City............ MO.............. 64129 Kansas City.
1 Ward Pkwy.......................... Kansas City............ MO.............. 64112 Kansas City.
1000 Carondelet Dr................... Kansas City............ MO.............. 64114 Kansas City.
1000 Walnut St....................... Kansas City............ MO.............. 64106 Kansas City.
10236 Marion Park Dr................. Kansas City............ MO.............. 64137 Kansas City.
104 W 42nd St........................ Kansas City............ MO.............. 64105 Kansas City.
10500 Barkley St..................... Overland Park.......... KS.............. 66212 Kansas City.
10525 N Ambassador Dr................ Kansas City............ MO.............. 64153 Kansas City.
10561 Barkley St..................... Overland Park.......... KS.............. 66212 Kansas City.
10910 W 87th St...................... Lenexa................. KS.............. 66214 Kansas City.
10930 N Pomona St.................... Kansas City............ MO.............. 64153 Kansas City.
1100 Rockhurst Rd.................... Kansas City............ MO.............. 64110 Kansas City.
11020 N Ambassador Dr................ Kansas City............ MO.............. 64152 Kansas City.
[[Page 74343]]
112 W 9th St......................... Kansas City............ MO.............. 64105 Kansas City.
11221 Roe Ave........................ Leawood................ KS.............. 66211 Kansas City.
11401 Lamar.......................... Overland Park.......... KS.............. 66211 Kansas City.
11600 College Blvd................... Overland Park.......... KS.............. 66103 Kansas City.
12076 W Santa Fe Dr.................. Lenexa................. KS.............. 66215 Kansas City.
12851 Foster St...................... Overland Park.......... KS.............. 66213 Kansas City.
12900 Foster St...................... Overland Park.......... KS.............. 66213 Kansas City.
1300 Cherry.......................... Kansas City............ MO.............. 64106 Kansas City.
1300 Summit St....................... Kansas City............ MO.............. 64105 Kansas City.
13202 W 98th St...................... Lenexa................. KS.............. 66215 Kansas City.
1414 Genessee St..................... Kansas City............ MO.............. 64102 Kansas City.
14303 W 95th St...................... Lenexa................. KS.............. 66215 Kansas City.
14502 W 105th St..................... Lenexa................. KS.............. 66215 Kansas City.
1500 Meadow Lake Pkwy................ Kansas City............ MO.............. 64114 Kansas City.
15095 W 116th St..................... Olathe................. KS.............. 66062 Kansas City.
1524 N Corrington Ave................ Kansas City............ MO.............. 64120 Kansas City.
15940 111th Blvd..................... Lenexa................. KS.............. 66219 Kansas City.
16011 College Blvd................... Lenexa................. KS.............. 66215 Kansas City.
1616 N Corrington.................... Kansas City............ MO.............. 64120 Kansas City.
1801 Main St......................... Kansas City............ MO.............. 64108 Kansas City.
1828 Walnut St....................... Kansas City............ MO.............. 64108 Kansas City.
1900 W 47th Pl...................... Kansas City............ KS.............. 66106 Kansas City.
1901 W 47............................ Westwood............... KS.............. 66205 Kansas City.
1925 Baltimore Ave................... Kansas City............ MO.............. 64108 Kansas City.
1925 Central......................... Kansas City............ MO.............. 64108 Kansas City.
2 Brush Creek Blvd................... Kansas City............ MO.............. 64112 Kansas City.
20 W 9th St.......................... Kansas City............ MO.............. 64105 Kansas City.
2000 County.......................... Kansas City............ KS.............. 66106 Kansas City.
2000 Shawnee Mission Pkwy............ Mission Woods.......... KS.............. 66205 Kansas City.
210 W 10th St........................ Kansas City............ MO.............. 64105 Kansas City.
2400/2401 Gillham Rd................. Kansas City............ MO.............. 64110 Kansas City.
2501 McGee........................... Kansas City............ MO.............. 64108 Kansas City.
3130 Broadway St..................... Kansas City............ MO.............. 64111 Kansas City.
323 W 8th............................ Kansas City............ MO.............. 64105 Kansas City.
3420 Broadway Rd..................... Kansas City............ MO.............. 64111 Kansas City.
3900 Rainbow Blvd.................... Kansas City............ KS.............. 66103 Kansas City.
400 E 9th St......................... Kansas City............ MO.............. 64106 Kansas City.
4739 Belleview Ave................... Kansas City............ MO.............. 64112 Kansas City.
4800 Main St......................... Kansas City............ Mo.............. 64112 Kansas City.
5121 E Front St...................... Kansas City............ MO.............. 64120 Kansas City.
5700 Broadmoor St.................... Mission................ KS.............. 66202 Kansas City.
5750 W 95th St....................... Overland Park.......... KS.............. 66207 Kansas City.
5808 W 110th St...................... Overland Park.......... KS.............. 66211 Kansas City.
601 E 12th Ave....................... North Kansas City...... MO.............. 64116 Kansas City.
6201 College Blvd.................... Overland Park.......... KS.............. 66211 Kansas City.
6300 Lamar Ave....................... Overland Park.......... KS.............. 66202 Kansas City.
6407 Roanridge....................... Kansas City............ MO.............. 64151 Kansas City.
6900 Squibb Rd....................... Mission................ KS.............. 66202 Kansas City.
6950 Squibb Rd....................... Mission................ KS.............. 66202 Kansas City.
7015 College Blvd.................... Overland Park.......... KS.............. 66211 Kansas City.
7045 College Blvd.................... Overland park.......... KS.............. 66211 Kansas City.
7223 W 95th St....................... Overland Park.......... KS.............. 66212 Kansas City.
7300 College Blvd.................... Overland Park.......... KS.............. 66210 Kansas City.
7400 College Blvd.................... Overland Park.......... KS.............. 66210 Kansas City.
7401 W 129th St...................... Overland Park.......... KS.............. 66213 Kansas City.
7401 NW Tiffany Springs Pkwy......... Kansas City............ MO.............. 64153 Kansas City.
7500 College Blvd.................... Overland Park.......... KS.............. 66210 Kansas City.
7800 W 110th St...................... Overland Park.......... KS.............. 66210 Kansas City.
7950 College Blvd.................... Overland Park.......... KS.............. 66210 Kansas City.
801 Walnut St........................ Kansas City............ MO.............. 64106 Kansas City.
8101 Lenexa Dr....................... Lenxa.................. KS.............. 66214 Kansas City.
818 Grand Blvd....................... Kansas City............ MO.............. 64106 Kansas City.
8228 Flagor Ave...................... Kansas City............ MO.............. 64118 Kansas City.
8281 NW 107 St....................... Kansas City............ MO.............. 64153 Kansas City.
8300 College Blvd.................... Overland Park.......... KS.............. 66210 Kansas City.
8320 Ward Pkwy....................... Kansas City............ MO.............. 64114 Kansas City.
8400 NW 107th Ter.................... Kansas City............ MO.............. 64153 Kansas City.
8425 Quivira......................... Lenaxa................. KS.............. 66215 Kansas City.
8700 State Line Rd................... Leawood................ KS.............. 66206 Kansas City.
8900 State Line Rd................... Kansas City............ KS.............. 66103 Kansas City.
9219 Quivira Rd...................... Overland Park.......... KS.............. 66215 Kansas City.
9435 Holmes Rd....................... Kansas City............ MO.............. 64131 Kansas City.
[[Page 74344]]
9700 Commerce Pkwy................... Lenexa................. KS.............. 66219 Kansas City.
1 MacArthur Pl....................... Santa Ana.............. CA.............. 92707 Los Angeles-Riverside-Orange County.
1149 S Broadway St................... Los Angeles............ CA.............. 90015 Los Angeles-Riverside-Orange County.
1375 Sunflower Ave................... Costa Mesa............. CA.............. 92626 Los Angeles-Riverside-Orange County.
1615 N Lake Ave...................... Pasadena............... CA.............. 91104 Los Angeles-Riverside-Orange County.
17682 Cowan Ave...................... Irvine................. CA.............. 92614 Los Angeles-Riverside-Orange County.
1830 E Warner Ave.................... Santa Ana.............. CA.............. 92705 Los Angeles-Riverside-Orange County.
1901 W Malvern Ave................... Fullerton.............. CA.............. 92833 Los Angeles-Riverside-Orange County.
2049 Century Park E.................. Los Angeles............ CA.............. 90067 Los Angeles-Riverside-Orange County.
2060 E Imperial Hwy.................. El Segundo............. CA.............. 90245 Los Angeles-Riverside-Orange County.
2100 E Grand Ave..................... El Segundo............. CA.............. 90245 Los Angeles-Riverside-Orange County.
21300 Victory Blvd................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
21550 Oxnard St...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
21600 Oxnard St...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
21650 Oxnard St...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
21700 Oxnard St...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
2230 E Imperial Hwy.................. El Segundo............. CA.............. 90245 Los Angeles-Riverside-Orange County.
2260 E Imperial Hwy.................. El Segundo............. CA.............. 90245 Los Angeles-Riverside-Orange County.
27700 Medical Center Rd.............. Mission Viejo.......... CA.............. 92691 Los Angeles-Riverside-Orange County.
333 S Anita Dr....................... Orange................. CA.............. 92868 Los Angeles-Riverside-Orange County.
3440 Flair Dr........................ El Monte............... CA.............. 91731 Los Angeles-Riverside-Orange County.
3530 Wilshire Blvd................... Los Angeles............ CA.............. 90010 Los Angeles-Riverside-Orange County.
376 Valencia Ave..................... Brea................... CA.............. 92823 Los Angeles-Riverside-Orange County.
5230 Pacific Concourse Dr............ Del Aire............... CA.............. 90045 Los Angeles-Riverside-Orange County.
550 Continental...................... El Segundo............. CA.............. 90245 Los Angeles-Riverside-Orange County.
5800 W Sunset Blvd................... Los Angeles............ CA.............. 90028 Los Angeles-Riverside-Orange County.
5901 De Soto Ave..................... Woodland Hills......... CA.............. 91364 Los Angeles-Riverside-Orange County.
601 W 5th St......................... Los Angeles............ CA.............. 90017 Los Angeles-Riverside-Orange County.
610 Newport Ctr Dr................... Newport Beach.......... CA.............. 92660 Los Angeles-Riverside-Orange County.
620 Newport Ctr Dr................... Newport Beach.......... CA.............. 92660 Los Angeles-Riverside-Orange County.
6300 Canoga Ave...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
6320 Canoga Ave...................... Los Angeles............ CA.............. 91367 Los Angeles-Riverside-Orange County.
660 Newport Ctr Dr................... Newport Beach.......... CA.............. 92660 Los Angeles-Riverside-Orange County.
7001 S Central Ave................... Los Angeles............ CA.............. 90052 Los Angeles-Riverside-Orange County.
800 N State College Blvd............. Fullerton.............. CA.............. 92831 Los Angeles-Riverside-Orange County.
830 N La Brea Ave.................... Los Angeles............ CA.............. 90038 Los Angeles-Riverside-Orange County.
950 S Grand Ave...................... Los Angeles............ CA.............. 90015 Los Angeles-Riverside-Orange County.
10920 W Lincoln Ave.................. West Allis............. WI.............. 53227 Milwaukee.
11200 W Parkland Ave................. Milwaukee.............. WI.............. 53224 Milwaukee.
1126 S 70th St....................... Milwaukee.............. WI.............. 53214 Milwaukee.
11270 W Park Pl...................... Milwaukee.............. WI.............. 53224 Milwaukee.
11300 W Burleigh St.................. Wauwatosa.............. WI.............. 53222 Milwaukee.
1190 W Rawson Ave.................... Oak Creek.............. WI.............. 53154 Milwaukee.
12000 W Park Pl...................... Milwaukee.............. WI.............. 53224 Milwaukee.
1233 N Mayfair Rd.................... Wauwatosa.............. WI.............. 53226 Milwaukee.
1563 S 101........................... West Allis............. WI.............. 53214 Milwaukee.
15740 W Cleveland Ave................ New Berlin............. WI.............. 53151 Milwaukee.
18500 W Corporate Dr................. Brookfield............. WI.............. 53045 Milwaukee.
1912 S 82nd St....................... West Allis............. WI.............. 53219 Milwaukee.
230 W Wells St....................... Milwaukee.............. WI.............. 53203 Milwaukee.
2861 S James Dr...................... New Berlin............. WI.............. 53151 Milwaukee.
432 E Kilbourn Ave................... Milwaukee.............. WI.............. 53202 Milwaukee.
433 E Michigan St.................... Milwaukee.............. WI.............. 53202 Milwaukee.
4701 W Greenfield Ave................ West Milwaukee......... WI.............. 53214 Milwaukee.
507 E Michigan St.................... Milwaukee.............. WI.............. 53202 Milwaukee.
5151 W State St...................... Milwaukee.............. WI.............. 53208 Milwaukee.
525 N 6th St......................... Milwaukee.............. WI.............. 53203 Milwaukee.
5300 Sthwy 38........................ Milwaukee.............. WI.............. 53207 Milwaukee.
5315 S 3rd St........................ Milwaukee.............. WI.............. 53207 Milwaukee.
555 Air Cargo Way.................... Milwaukee.............. WI.............. 53207 Milwaukee.
600 E Greenfield Ave................. Milwaukee.............. WI.............. 53204 Milwaukee.
635 S 28th St........................ Milwaukee.............. WI.............. 53215 Milwaukee.
6801 N Yates Rd...................... Fox Point.............. WI.............. 53217 Milwaukee.
6980 N Port Washington Rd............ Milwaukee.............. WI.............. 53217 Milwaukee.
7930 N Faulkner Rd................... Milwaukee.............. WI.............. 53224 Milwaukee.
800 W Wells St....................... Milwaukee.............. WI.............. 53233 Milwaukee.
8112 W Bluemound Rd.................. Wauwatosa.............. WI.............. 53213 Milwaukee.
8213 Durand Ave...................... Sturtevant............. WI.............. 53177 Milwaukee.
8332 Corporate Dr.................... Racine................. WI.............. 53406 Milwaukee.
8900 N Arbon Dr...................... Brown Deer............. WI.............. 53223 Milwaukee.
9015 W Maple St...................... West Allis............. WI.............. 53214 Milwaukee.
9201 Washington Ave.................. Sturtevant............. WI.............. 53406 Milwaukee.
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N16 W234155 Stoneridge Dr............ Waukesha............... WI.............. 53186 Milwaukee.
N19 W24133 Riverwood Dr.............. Pewaukee............... WI.............. 53072 Milwaukee.
N56 W17000 Ridgewood Dr.............. Menomonee Falls........ WI.............. 53051 Milwaukee.
101 Civic Centre Dr.................. Santee................. CA.............. 92071 San Diego.
10505 Sorrento Valley Rd............. San Diego.............. CA.............. 92121 San Diego.
10666 N Torrey Pines Rd.............. San Diego.............. CA.............. 92037 San Diego.
1120 27th St......................... San Diego.............. CA.............. 92154 San Diego.
11355 North Torrey Pines Rd.......... San Diego.............. CA.............. 92037 San Diego.
12365 Crosthwaite Cir................ Poway.................. CA.............. 92064 San Diego.
12650 Danielson Ct................... Poway.................. CA.............. 92064 San Diego.
1849 Diamond St...................... San Marcos............. CA.............. 92069 San Diego.
1940 Diamond St...................... San Marcos............. CA.............. 92069 San Diego.
1950 Corporate Ctr................... Oceanside.............. CA.............. 92056 San Diego.
2251 San Diego Ave................... San Diego.............. CA.............. 92110 San Diego.
3111 Camino Del Rio N................ San Diego.............. CA.............. 92108 San Diego.
3115 Merryfield Row.................. San Diego.............. CA.............. 92121 San Diego.
3131 Camino Del Rio North............ San Diego.............. CA.............. 92108 San Diego.
330 Lewis St......................... San Diego.............. CA.............. 92103 San Diego.
333 W Harbor Dr...................... San Diego.............. CA.............. 92131 San Diego.
3380 Norman Scott Rd................. San Diego.............. CA.............. 92136 San Diego.
3851 Rosecrans St.................... San Diego.............. CA.............. 92110 San Diego.
3900 Lomaland Dr..................... San Diego.............. CA.............. 92106 San Diego.
4077 5th Ave......................... San Diego.............. CA.............. 92103 San Diego.
4310 Landis St....................... San Diego.............. CA.............. 92105 San Diego.
435 H St............................. Chula Vista............ CA.............. 91910 San Diego.
5055 Viewridge Ave................... San Diego.............. CA.............. 92123 San Diego.
5555 Overland Ave.................... San Diego.............. CA.............. 92123 San Diego.
5601 Oberlin Dr...................... San Diego.............. CA.............. 92121 San Diego.
5670 Oberlin Dr...................... San Diego.............. CA.............. 92121 San Diego.
5754 Pacific Center Blvd............. San Diego.............. CA.............. 92121 San Diego.
5880 Oberlin Dr...................... San Diego.............. CA.............. 92121 San Diego.
6150 Nancy Ridge Dr.................. San Diego.............. CA.............. 92121 San Diego.
8355 Aero Dr......................... San Diego.............. CA.............. 92123 San Diego.
8520 Tech Way........................ San Diego.............. CA.............. 92123 San Diego.
9089 Clairemont Mesa Blvd............ San Diego.............. CA.............. 92123 San Diego.
9233 Balbora Ave..................... San Diego.............. CA.............. 92123 San Diego.
9888 Genesee Ave..................... San Diego.............. CA.............. 92117 San Diego.
9950 Barnes Canyon Rd................ San Diego.............. CA.............. 92121 San Diego.
Naval Air Station.................... San Diego.............. CA.............. 92135 San Diego.
1025 2nd Ave......................... Oakland................ CA.............. 94606 San Francisco-Oakland-San Jose.
221 Main St.......................... San Francisco.......... CA.............. 94105 San Francisco-Oakland-San Jose.
2325 Orchard Pkwy.................... San Jose............... CA.............. 95131 San Francisco-Oakland-San Jose.
245 Market St........................ San Francisco.......... CA.............. 94105 San Francisco-Oakland-San Jose.
4665 Business Center Dr.............. Fairfield.............. CA.............. 94585 San Francisco-Oakland-San Jose.
5858 Horton St....................... Emeryville............. CA.............. 94608 San Francisco-Oakland-San Jose.
601 Montgomery St.................... San Francisco.......... CA.............. 94111 San Francisco-Oakland-San Jose.
650 California St.................... San Francisco.......... CA.............. 94108 San Francisco-Oakland-San Jose.
717 Potter St........................ Berkeley............... CA.............. 94710 San Francisco-Oakland-San Jose.
720 Parker St........................ Berkeley............... CA.............. 94710 San Francisco-Oakland-San Jose.
75 E Trimble Rd...................... San Jose............... Ca.............. 95131 San Francisco-Oakland-San Jose.
10101 Woodfield...................... Creve Coeur............ MO.............. 63132 St. Louis.
10401 Baur Blvd...................... Olivette............... MO.............. 63132 St. Louis.
10430 Baur Blvd...................... Olivette............... MO.............. 63132 St. Louis.
10845 Baur........................... Creve Coeur............ MO.............. 63132 St. Louis.
1100 Eastport Plaza Dr............... Collinsville........... IL.............. 62234 St. Louis.
1111 Woods Mill...................... St. Louis.............. MO.............. 63011 St. Louis.
11330 Olive Blvd..................... St. Louis.............. MO.............. 63141 St. Louis.
11700 Dunlap Industrial Dr........... Maryland Heights....... MO.............. 63043 St. Louis.
11975 Westline Industrial Dr......... Maryland Heights....... MO.............. 63146 St. Louis.
12312 Olive Blvd..................... Creve Coeur............ MO.............. 63141 St. Louis.
13045 Tesson Ferry Rd................ Tesson Ferry........... MO.............. 63128 St. Louis.
14440 S Outer Forty Rd............... Town and County........ MO.............. 63141 St. Louis.
14515 N Outer Rd..................... Chesterfield........... MO.............. 63017 St. Louis.
14528 S Outer 40 Rd.................. Chesterfield........... MO.............. 63017 St. Louis.
1699 S Hanley Rd..................... Brentwood.............. MO.............. 63144 St. Louis.
1706 Washington Ave.................. St. Louis.............. MO.............. 63103 St. Louis.
1850 Borman Ct....................... Maryland Heights....... MO.............. 63146 St. Louis.
1945 Craig Rd........................ Maryland Heights....... MO.............. 63141 St. Louis.
210 N 13th St........................ St. Louis.............. MO.............. 63103 St. Louis.
2100 Schuetz Rd...................... Maryland Heights....... MO.............. 63146 St. Louis.
232 S Woods Mill Rd.................. Chesterfield........... MO.............. 63017 St. Louis.
25 Research Ct....................... Weldon Spring.......... MO.............. 63304 St. Louis.
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2600 Washington...................... St. Louis.............. MO.............. 63103 St. Louis.
305 Rock Industrial Park Dr.......... Bridgeton.............. MO.............. 63044 St. Louis.
41 Village Square Dr................. St. Louis.............. MO.............. 63042 St. Louis.
424 S Woods Mill Rd.................. Town and Country....... MO.............. 63017 St. Louis.
425 S Woods Mill Rd.................. Chesterfield........... MO.............. 63017 St. Louis.
525 Couch Ave........................ Kirkwood............... MO.............. 63122 St. Louis.
600 Mason Ridge Center Dr............ Town and Country....... MO.............. 63141 St. Louis.
8 Park Pl............................ Swansea................ IL.............. 62226 St. Louis.
8020 Forsyth Blvd.................... Clayton................ MO.............. 63105 St. Louis.
900 N Tucker Blvd.................... St. Louis.............. MO.............. 63101 St. Louis.
Bldg P-5............................. Scott Air Force Base... IL.............. 62225 St. Louis.
--------------------------------------------------------------------------------------------------------------------------------------------------------
In the United States District Court for the District of Columbia
United States of America, Plaintiff v.SBC Communications Inc. and AT&T
Corp., Defendants
Civil Action No. 1:05CV02102 (EGS)
Filed: November 16, 2005
Competitive Impact Statement
Plaintiff United States of America (``United States''), pursuant to
Section 2 (b) of the Antitrust Procedures and Penalties Act (``APPA''
or ``Tunney Act''), 15 U.S.C. 16(b)-(h), files this Competitive Impact
Statement relating to the proposed Final Judgment submitted for entry
in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
Defendants entered into an Agreement and Plan of Merger dated
January 30, 2005, pursuant to which SBC Communications Inc. (``SBC'')
will acquire AT&T Corp. (``AT&T''). The United States filed a civil
antitrust Complaint on October 27, 2005 seeking to enjoin the proposed
acquisition. The Complaint alleges that the likely effect of this
acquisition would be to lessen competition substantially for Local
Private Lines and other telecommunications services that rely on Local
Private Lines located in 11 metropolitan areas in violation of Section
7 of the Clayton Act, 15 U.S.C. 18. This loss of competition would
result in customers facing higher prices for Local Private Lines and
other telecommunications services that rely on Local Private Lines than
they would absent the merger.
At the same time the Complaint was filed, the United States filed a
Stipulation and proposed Final Judgment that are designed to eliminate
the anticompetitive effects of the acquisition. Under the proposed
Final Judgment, which is explained more fully below, Defendants are
required to divest, in most situations, indefeasible rights of use
(``IRUs'') for lateral connections to certain buildings located in a
number of metropolitan areas as listed in Appendix A of the proposed
Final Judgment (collectively the ``Divestiture Assets''). Under the
terms of the Stipulation, Defendants will take certain steps to ensure
that these assets are preserved and maintained.
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment would terminate this action, except that
the Court would retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof. Defendants have also stipulated that they will comply with the
terms of the Stipulation and the proposed Final Judgment from the date
of signing of the Stipulation, pending entry of the proposed Final
Judgment by the Court and the required divestitures. Should the Court
decline to enter the proposed Final Judgment, Defendants have also
committe to continue to abide by its requirements and those of the
Stipulation until the expiration of time for appeal.
II. Description of the Events Giving Rise to the Alleged Violation
A. The Defendants and the Proposed Transaction
SBC is a corporation organized and existing under the laws of the
State of Delaware, with its headquarters in San Antonio, Texas. SBC,
formerly Southwestern Bell, is a regional bell operation company
(``RBOC''), formed as one of the seven regional holding companies
created as a result of the breakup of AT&T's telephone business into
local and long distance components initially in 1984. Since then, SBC
has acquired two other RBOCs--Pacific Telsis and Ameritech--as well as
an incumbent local exchange carrier (``ILEC''), Southern New England
Telephone Corporation. SBC owns and operates local telecommunications
networks throughout is 13-state territory and provides local and long
distance voice and data services to, inter alia, business customers and
other telecommunications carriers. SBC's wireline telecommunications
operations currently serve around 52 million switched access lines,
including 27.5 million residential and 17.6 million business lines. In
2004, SBC earned approximately $36.9 billion in revenues from its
wireline services, including almost $13 million attributable to
business customers.
AT&T is a corporation organized and existing under the laws of the
State of New York, with its headquarters in Bedminsiter, New Jersey.
After the 1984 breakup, AT&T was primarily a long distance provider and
is still the nation's largest interexchange carrier (``IXC''), offering
traditional long distance telephone service, as well as one of the
largest competitive local exchange carriers (``CLEC''), offering local
network access for voice and data services. AT&T serves consumers and
businesses across the United States and around the globe. It also owns
and operates local networks in dozens of metropolitan areas in the
United States, a substantial number of which are in SBC territory. Like
SBC, AT&T also provides local and long distance voice and data services
to business customers and other telecommunications carriers. AT&T
competes with SBC to serve wholesale and retail customers' locations in
SBC's franchised territory. IN 2004, AT&T earned approximately $30.5
billion in revenues, including $22.6 billion from business customers.
Pursuant to an Agreement and Plan of Merger dated January 30, 2005,
SBC agreed to acquire AT&T for approximately $16 billion. The proposed
transaction, as initially agreed to by Defendants, would lessen
[[Page 74347]]
competition substantially for Local Private Lines and other
telecommunication services that rely on Local Private Lines in 11
metropolitan areas. This acquisition is the subject of the Complaint
and proposed Final Judgment filed by the United States.
B. Local Private Lines
A Local Private Line is a dedicated, point-to-point circuit offered
over copper and/or fiber-optic transmission facilities that originates
and terminates within a single metropolitan area and typically includes
at least one local loop. A local loop, sometimes referred to as a
``last-mile'' connection, is typically either a copper or fiber-optic
transmission facility that connects commercial buildings to a carrier's
network, making the local loop a critically important asset for
providing telecommunications services to business customers.
Local Private Lines are a recognized service category among
telecommunications carriers and end-user business customers and are
sold at both retail (to business customers) and wholesale (to other
carriers). Depending on how they are configured, Local Private Lines
can be used to carry voice traffic, data, or a combination of the two.
Local Private Lines may be purchased as stand-alone products but are
also an important input to value-added voice and data
telecommunications services for business customers and represent a
significant portion of the costs incurred in providing those services.
Customers typically purchase Local Private Lines in standard bandwidth
increments such as DS1 (``T1,'' 1.54 megabits per second), DS3 (44.74
megabits per second), OC3 (155.52 megabits per second), and higher.
Local Private Lines can interconnect with industry-standard data
networking and telephone equipment, and can be ``channelized'' to carry
various amounts of voice and/or data traffic. Local Private Lines are
distinct from switched local exchange telephone servicers, which route
calls through a voice switch in the local carrier's central office and
do not necessarily use a dedicated circuit. customers do not consider
switched local exchange services to be a substitute because they do not
offer the guaranteed bandwidth, high service levels, and security that
Local Private Lines provide.
Competing carriers often rely on Local Private Line circuits to
connect an end-user customer's location to their networks, enabling the
competitor to supply value-added data networking, Internet access,
local voice and long distance services to the customer. although
carriers can provide some types of voice and data services over
switched local exchange lines (e.g., when an access line is pre-
subscribed to a long distance carrier), most large business customers
do not find those services to be a viable or cost-effective substitute
for voice and data telecommunications services provided via Local
Private Lines or voice and data telecommunications services provided
via Local Private Lines, insufficient customers would switch to
switched circuits to render the increase unprofitable.
For the vast majority of commercial buildings in its territory, SBC
is the only carrier that owns a last-mile connection to the building.
Thus, in order to provide Local Private Line circuits or voice or data
telecommunications services to customers in those SBC-only buildings,
competing carriers typically must lease the connection from SBC as
Local Private Line service, which SBC refers to as ``special access.''
For a small percentage of commercial buildings (though these buildings
account for a significant amount of customer demand and revenue), SBC's
CLEC competitors have built or acquired their own last-mile fiber-optic
connections, separate from SBC's, to connect their networks to the
buildings. The CLECs typically refer to buildings with these
connections as their ``lit buildings'' or ``on-net buildings.'' Once a
CLEC has incurred the high fixed cost to construct a last-mile
connection to a building, the CLEC can usually provide service to
business customers in the building at a lower marginal cost than it
would otherwise be able to do if it had to lease the connection from
the RBOC. It an also provide alternative access to other CLECs seeking
to service business customers in the building.
The relevant geographic market for both Local Private Lines, as
well as voice and data telecommunications services that rely on Local
Private Lines, is no broader than each metropolitan area and no more
narrow than each individual building.
C. The Competitive Effects of the Transaction on Local Private Lines
SBC's acquisition of AT&T will substantially lessen competition in
the markets for (a) Local Private Lines and (b) voice and data
telecommunications services that rely on Local Private Lines. SBC is
the dominant provider of Local Private Lines in its franchised
territory, and AT&T is one of its largest competitors. AT&T is among
the leading CLECs in SBC's territory in the number of buildings it has
connected with its own last-mile fiber facilities. For hundreds of
commercial buildings located in the metropolitan areas of Chicago,
Illinois; Dallas-Fort Worth, Texas; Detroit, Michigan; Hartford-New
Haven, Connecticut; Indianapolis, Indiana; Kansas City, Missouri; Los
Angeles, California; Milwaukee, Wisconsin; San Diego, California; San
Francisco-San Jose, California; and St. Louis, Missouri, SBC and AT&T
are the only two firms that own or control a direct wireline connection
to the building. In these buildings, the merger of SBC and AT&T would
reduce the number of carriers with an owned or controlled last-mile
connection from two to one.
The merger would, therefore, effectively eliminate competition for
facilities-based Local Private Line service to those buildings, and
many retail and wholesale customers would no longer have AT&T as a
competitive alternative to SBC. Although other competitors might resell
Local Private Lines from SBC, those competitors would not be as
effective a competitive constraint because SBC would control the price
of the resold circuits. The merged firm would, therefore, have the
ability to raise price to retail and wholesale customers of Local
Private Lines. In addition, because the cost of dedicated local access
via Local Private Lines represents an important cost component of many
value-added voice and data telecommunications services provided over
such access, the merger would tend to lessen competition for retail
voice and data telecommunications services provided over dedicated
access by (a) eliminating AT&T as the only competitive alternative to
SBC for such services with its own Local Private Line connection to
hundreds of buildings and (b) depriving other carriers seeking to
provide such value-added network services of the only fully-facilities
based wholesale competitive alternative to SBC in those buildings.
Although other CLECs can, theoretically, build their own fiber
connection to each building in response to a price increase by the
merged firm, such entry is a difficult, time-consuming, and expensive
process. Whether a CLEC builds a last-mile connection to a given
building depends upon many factors, as noted in the Complaint, and the
costs of building a last-mile fiber-optic connection vary substantially
for each location. Because a single such connection may cost hundreds
of thousands of dollars to build and light, CLECs will typically only
build in to a particular building after they have secured a customer
[[Page 74348]]
contract of sufficient size and length to justify the anticipated
construction costs for that building. While entry may occur in some
buildings where AT&T is the only CLEC present in response to a post-
merger price increase, the conditions for entry are unlikely to be met
in the hundreds of buildings that are the subject to the Complaint. For
these buildings, the expected customer demand and proximity of other
CLEC fiber to the building (two important factors in the decision to
build in) indicate that such entry, even in the face of a price
increase, is unlikely to be profitable for any CLEC. Thus, entry would
not be timely, likely, or sufficient to eliminate the competitive harm
that would likely result from SBC's proposed acquisition of AT&T.
For these seasons, the United States concluded that SBC's proposed
acquisition of AT&T will likely substantially lessen competition, in
violation of Section 7 of the Clayton Act, in the provision of Local
Private Lines and other telecommunications services that rely on Local
Private Lines in the 11 metropolitan areas listed above.
III. Explanation of the Proposed Final Judgment
The divestiture requirements of the proposed Final Judgment will
eliminate the anticompetitive effects of the acquisition of Local
Private Lines and other telecommunications services that rely on Local
Private Lines in the relevant areas. The proposed Final Judgment
requires Defendants, within 120 days after the closing of SBC's
acquisition of AT&T, or five (5) days after notice of the entry of the
Final Judgment by the Court, whichever is later, to divest the
Divestiture Assets. The Divestiture Assets consist of IRUs for lateral
connections (or last-mile connection) to hundreds of buildings in the
identified metropolitan areas along with transport facilities
sufficient to enable the IRUs to be used by the purchaser to provide
telecommunications services. Defendants must take all reasonable steps
necessary to accomplish the divestitures quickly and shall cooperate
with prospective purchasers.
These assets must be divested in such a way as to satisfy the
United States in its sole discretion that they will be used by the
purchaser to compete effectively and remedy the harm alleged in the
Complaint in the markets for Local Private Lines and other
telecommunications services that rely on Local Private Lines. In
reviewing the purchaser or purchasers of the Divestiture Assets, the
United States will be particularly focused on the purchaser's ability
to be a viable competitor in offering Local Private Lines on both a
retail and/or wholesale basis. Purchasers that are already offering
similar services in or near the metropolitan area are more likely to be
viable competitors than other potential purchasers.
Divesting the last-mile connections to the hundreds of buildings in
SBC's territory will remedy the harm alleged in the Complaint. Although
other CLEC's have local fiber networks in each of the metropolitan
areas at issue, they cover only a small percentage of buildings, and
the buildings covered vary from CLEC and CLEC. As a result, there are
numerous buildings where AT&T is the only CLEC with a last-mile
connection. It is the decreased competition in the provision of these
last-mile connections to buildings where AT&T is the only CLEC that
creates the harm alleged in the Complaint. Whether the geographic
market for the sale of Local Private Line or other telecommunications
services that rely on Local Private Lines is as broad as the
metropolitan area or as narrow as individual locations or building,
divesting these last-mile connections will restore the lost facilities-
based competition. The proposed Final Judgment also strengthens
metropolitan area competition by divesting to a single purchaser in
each area all of the buildings that were unique to AT&T.
To ensure that the purchaser has adequate capacity to serve
customers in a given location, the lateral or last-mile connection to
be divested will consist of an IRU for the grater of (1) eight (8)
fiber strands or (2) one-half of the currently unused fiber strands in
AT&T's facilities serving the building measured at the time of the
filing of the Complaint, from the point of entry of the building to the
splice point with fiber used to serve different buildings. This should
be sufficient capacity for the purchaser to serve current demand and
allow for future growth and changes in the local service area while
allowing SBC to retain the AT&T circuits being used to serve current
customers without disruption to their service. In addition, to
accommodate network engineering and design requirements, the
divestiture IRUs can be granted for fiber strands owned or controlled
by either SBC or AT&T, as mutually agreed by Defendants and the
purchaser.
Last-mile connections, however, are of little use if they are not
connected to a network. Therefore, the proposed Final Judgment also
requires the divestiture of IRUs for transport facilities sufficient to
connect the divested last-mile connections to locations mutually agreed
upon by Defendants and the purchaser. This will ensure that the
purchaser can connect the last-mile connections to its network
facilities and provide both Local Private Lines and any other
telecommunications services that rely on Local Private Lines that a
customer in the building may require.
An IRU (or indefeasible right of use) is a long-term leasehold
interest commonly used in the telecommunications industry that gives
the holder the right to use specified strands of fiber in a
telecommunications facility. The proposed Final Judgment contemplates
that the purchaser and Defendants will negotiate commercially
reasonable IRUs that must meet minimum requirements, including: (1) To
ensure that the purchaser has the asset for a long enough time period
to serve customers while taking into account the dynamic nature of the
telecommunications industry and the useful life of the existing fiber,
the IRU must be for a minimum of 10 years; (2) to minimize ongoing
carrying costs for the IRU, the IRU cannot contain a monthly or other
recurring fee; and (3) to ensure that Defendants cannot limit the
purchasers' use of the last-mile connection, the IRU cannot
unreasonably limit the right of the purchaser to use the asset as it
wishes (e.g., the purchaser shall be permitted to splice into the IRU
fiber, though such splice points must be mutually agreed upon by
Defendants and purchaser). This last requirement, allows the purchaser
to splice into the IRUs to serve locations other than those listed in
Appendix A of the proposed Final Judgment, at mutually agreed upon
splice points.
The requirements of the proposed Final Judgment ensure that the
purchasers can use the Divested Assets to begin competing immediately
for customers in these buildings and will have the rights and cost
structure necessary to be effective by (1) minimizing carrying costs so
that viability is not threatened if customers are not immediately
procured and (2) giving the purchaser flexibility in use of the last-
mile connections by allowing splicing into the fiber.
In some locations, AT&T serves the building using fiber that it
controls through an IRU, rather than full ownership. In these locations
if the United States determines in its sole discretion that such an
alternative disposition will meet the aims of the proposed Final
Judgment, Defendants may alternatively (1) enter into a dark
[[Page 74349]]
fiber service agreement or other commercial arrangement for the last-
mile connections and, if necessary, associated transport with the
purchaser or (2) relinquish a portion of AT&T's IRU rights back to the
owner of the fiber. In either of these circumstances, as with approving
a purchaser, the United States will consider whether the fiber is
likely to be used it in a manner that will remedy the competitive harm
alleged in the Complaint.
Lastly, with the approval of the United States, in its sole
discretion, and at the purchaser's option, the Divestiture Assets may
be modified to exclude assets and rights that are not necessary to meet
the aims of this Final Judgment. This will allow for minor
modifications of the Divestiture Assets to exclude assets that may not
be necessary in order to remedy the competitive harm.
A. Timing of Divestitures
To rapidly restore lost competition, the United States requires
divestitures to be completed within the shortest time period reasonable
under the circumstances. In this case, the proposed Final Judgment
requires, in Section IV.A, divestiture of the Divestiture Assets,
within 120 days after the closing of SBC's acquisition of AT&T, or five
(5) days after notice of the entry of the Final Judgment by the Court,
whichever is later. The United States in its sole discretion may extend
the date for divestiture of the Divestiture Assets by up to sixty (60)
days. The divestiture timing provisions of the proposed Final Judgment
will ensure that the divestitures are carried out in a timely manner,
and at the same time will permit Defendants an adequate opportunity to
accomplish the divestitures through a fair and orderly process.
B. Use of a Divestiture Trustee
In the event that Defendants do not accomplish the divestiture
within the periods prescribed in the proposed Final Judgment, the Final
Judgment provides that the Court will appoint a trustee selected by the
United States to effect the divestitures. To ensure that the
divestiture trustee can promptly locate and divest to an acceptable
purchaser, the United States, in its sole discretion, may require
Defendants to include additional assets, or allow Defendants to
substitute substantially similar assets, which substantially relate the
Divestiture Assets to be divested by the divestiture trustee.
The proposed Final Judgment provides that Defendants will pay all
costs and expenses of the divestiture trustee. The divestiture
trustee's commission will be structured, under Section V.D of the
proposed Final Judgment, so as to provide an incentive for the
divestiture trustee based on the price obtained and the speed with
which the divestitures are accomplished. After his or her appointment
becomes effective, the divestiture trustee will file monthly reports
with the Court and the United States setting forth his or her efforts
to accomplish the divestitures. Section V.G of the proposed Final
Judgment requires the divestiture trustee to divest the Divestiture
Assets to an acceptable purchaser or purchasers no later than six (6)
months after his or her appointment. At the end of six (6) months, if
all divestitures have not been accomplished, the trustee and the United
States will make recommendations to the Court, which shall enter such
orders as appropriate in order to carry out the purpose of the trust,
including extending the trust or term of the trustee's appointment.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against Defendants.
V. Procedures Available for Modification of the Proposed Final Judgment
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the Untied States has not
withdrawn its consent. The APA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least sixty (60) days preceding
the effective date of the proposed Final Judgment within which any
person may submit to the United States written comments regarding the
proposed Final Judgment. Any person who wishes to comment should do so
within sixty (60) days of the date of publication of this Competitive
Impact Statement in the Federal Register. All comments received during
this period will be considered by the Department of Justice, which
remains free to withdraw its consent to the proposed Final Judgment at
any time prior to the Court's entry of judgment. The comments and the
response of the United States will be filed with the Court and
published in the Federal Register.
Written comments should be submitted to: Nancy M. Goodman, Chief,
Telecommunications and Media Enforcement Section, Antitrust Division,
U.S. Department of Justice, 1401 H Street, NW., Suite 8000, Washington,
DC 20530. The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against Defendants. The
United States could have continued the litigation and sought
preliminary and permanent injunctions against SBC's acquisition of
AT&T. The United States is satisfied, however, that the divestiture of
assets and other relief described in the proposed Final Judgment will
preserve competition for Local Private Lines and other
telecommunications services that rely on Local Private Lines in the
metropolitan areas identified in the Complaint.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject to a sixty (60) day
comment period, after which the Court shall determine whether entry of
the proposed Final Judgment ``is in the public interest.'' 15 U.S.C.
Sec. 16(e)(1). In making that determination, the Court shall consider:
(A) The competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) The impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the
[[Page 74350]]
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trail.
15 U.S.C. Sec. 16(e)(1)(A) & (B). As the United States Court of
Appeals for the District of Columbia Circuit has held, the APPA permits
a court to consider, among other things, the relationship between the
remedy secured and the specific allegations set forth in the
government's complaint, whether the consent judgment is sufficiently
clear, whether enforcement mechanisms are sufficient, and whether the
consent judgment may positively harm third parties. See United States
v. Microsoft Corp., 56 F.3d 1448, 1458-62 (D.C. Cir. 1995).
``Nothing in this section shall be construed to require the court
to conduct an evidentiary hearing or to require the court to permit
anyone to intervene.'' 15 U.S.C. Sec. 16(e)(2). Thus, in conducting
this inquiry, ``[t]he court is nowhere compelled to go to trial or to
engage in extended proceedings which might have the effect of vitiating
the benefits of prompt and less costly settlement through the consent
decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Senator
Tunney).\1\
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\1\ See United States v. Gillette Co., 406 F. Supp. 713, 716 (D.
Mass. 1975) (recognizing it was not the court's duty to settle;
rather, the court must only answer ``whether the settlement achieved
[was] within the reaches of the public interest''). A ``public
interest'' determination can be made properly on the basis of the
Competitive Impact Statement and Response to Comments filed by the
Department of Justice pursuant to the APPA. Although the APPA
authorizes the use of additional procedures, 15 U.S.C. 16(f), those
procedures are discretionary. A court need not invoke any of them
unless it believes that the comments have raised significant issues
and that further proceedings would aid the court in resolving those
issues. See H.R. Rep. No. 93-1463, 93d Cong., 2d Sess. 8-9 (1974),
reprinted in 1974 U.S.C.C.A.N. 6535, 6538-39.
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Rather:
[a]bsent a showing of corrupt failure of the government to discharge
its duty, the Court, in making its public interest finding, should *
* * carefully consider the explanations of the government in the
competitive impact statement and its responses to comments in order
to determine whether those explanations are reasonable under the
circumstances.
United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cass. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977).
Accordingly, with respect to the adequacy of the relief secured by
the proposed Final Judgment, a court may not ``engage in an
unrestricted evaluation of what relief would best serve the public.''
United States v. BNS Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see
also Microsoft, 56 F.3d at 1460-62. Courts have held that:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\2\
---------------------------------------------------------------------------
\2\ Cf. BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); Gillette, 406 F. Supp. at 716
(noting that, in this way, the court is constrained to ``look at the
overall picture not hypercritically, nor with a microscope, but with
an artist's reducing glass''); see generally Microsoft, 56 F.3d at
1461 (discussing whether ``the remedies [obtained in the decree are]
so inconsonant with the allegations charged as to fall outside of
the `reaches of the public interest' '').
---------------------------------------------------------------------------
The proposed Final Judgment, therefore, should not be reviewed
under a standard of whether it is certain to eliminate every
anticompetitive effect of a particular practice or whether it mandates
certainty of free competition in the future. Court approval of a final
judgment requires a standard more flexible and less strict than the
standard required for a finding of liability. ``[A] proposed decree
must be approved even if it falls short of the remedy the court would
impose on its own, as long as it falls within the range of
acceptability or is `within the reaches of public interest.' '' United
States v. AT&T Corp., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations
omitted) (quoting Gillette, 406 F. Supp. at 716), aff'd sub nom.
Maryland v. United States, 460 U.S. 1001 (1983); see also United
States v. Alcan Aluminum Ltd., 605 F. Supp 619, 622 (W.D. Ky. 1985)
(approving the consent judgment even though the court would have
imposed a greater remedy).
Moreover, the Court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its Complaint, and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459. Because the ``court's
authority to review the decree depends entirely on the government's
exercising its prosecutorial discretion by bringing a case in the first
place,'' it follows that ``the court is only authorized to review the
decree itself,'' and not to ``effectively redraft the complaint'' to
inquire into other matters that the United States did not pursue. Id.
at 1459-60.
VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: November 16, 2005.
Respectfully submitted,
/s/-------------------------------------------------------------------
Laury E. Bobbish,
Assistant Chief.
/s/-------------------------------------------------------------------
Lawrence M. Frankel
(D.C. Bar No. 441532)
Claude F. Scott, Jr.
(D.C. Bar No. 414906)
Mary N. Strimel
(D.C. Bar No. 455303)
Matthew C. Hammond
Lauren J. Fishbein
(D.C. Bar No. 451889)
Conrad J. Smucker
(D.C. Bar No. 434590)
Jeremiah M. Luongo
Jared A. Hughes
David T. Blonder
William Lindsey Wilson
William B. Michael
Trial Attorneys, U.S. Department of Justice, Antitrust Division,
Telecommunications and Media Enforcement Section, 1401 H Street,
NW., Suite 8000, Washington, DC 20530. Telephone: (202) 514-5621.
Facsimile: (202) 514-6381.
[FR Doc. 05-23814 Filed 12-14-05; 8:45 am]
BILLING CODE 4410-11-M