United States v. ALLTEL Corporation and Western Wireless Corporation; Competitive Impact Statement, Proposed Final Judgment, Complaint, Preservation of Assets Stipulation and Order, 44357-44376 [05-15020]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Notices]
[Pages 44357-44376]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15020]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. ALLTEL Corporation and Western Wireless 
Corporation; Competitive Impact Statement, Proposed Final Judgment, 
Complaint, Preservation of Assets Stipulation and Order

    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, Preservation of Assets Stipulation and Order, and Competitive 
Impact Statement have been filed with the U.S. District Court for the 
District of Columbia in United States v. ALLTEL Corporation and Western 
Wireless Corporation, Civil Case No. 1:05CV01345. On July 6, 2005, the 
United States filed a complaint alleging that the proposed acquisition 
of Western Wireless Corporation (``Western Wireless'') by ALLTEL 
Corporation (``ALLTEL''), would violate section 7 of the Clayton Act, 
15 U.S.C. 18, by substantially lessening competition in the provision 
of mobile wireless telecommunications services. The proposed Final 
Judgment, filed at the same time as the Complaint, Competitive Impact 
Statement, and Preservation of Assets Stipulation and Order, requires 
ALLTEL to divest assets in three states--Arkansas, Kansas, and 
Nebraska--in order to proceed with ALLTEL's $6 billion stock-and-cash 
acquisition of Western Wireless. The Competitive Impact Statement filed 
by the United States 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, Preservation of 
Assets Stipulation and Order, the 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 20530 (202-514-2481), and the Office of the Clerk 
of the

[[Page 44358]]

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.
United States of Amercia, Plaintiff, v. Alltel Corporation and 
Western Wireless Corporation, Defendants.

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 Judgement 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 9, 2005, pursuant to which ALLTEL Corporation (``ALLTEL'') will 
acquire Western Wireless Corporation (``Western''). Plaintiff filed a 
civil antitrust Complaint on July 6, 2005 seeking to enjoin the 
proposed acquisition. The Complaint alleges that the likely effect of 
this acquisition would be to lessen competition substantially for 
mobile wireless telecommunications services in sixteen (16) geographic 
areas in the states of Arkansas, Kansas, and Nebraska in violation of 
Section 7 of the Clayton Act, 15 U.S.C. 18. This loss of competition 
would result in consumers facing higher prices and lower quality or 
quantity of mobile wireless telecommunications services.
    At the same time the Complaint was filed, plaintiff also filed a 
Preservation of Assets Stipulation and Order and proposed Final 
Judgment, which are designed to eliminate the anticompetitive effects 
of the acquisition. Under the proposed Final Judgement, which is 
explained more fully below, defendants are required to divest Western 
Wireless' mobile wireless telecommunications services businesses and 
related assets in sixteen (16) markets (``Wireless Business Divestiture 
Assets'') and Western Wireless' Cellular One Group Assets which 
includes the Cellular One service mark and related assets (``Cellular 
One Group Assets'') (collectively the ``Divestiture Assets''). Under 
the terms of the Preservation of Assets Stipulation and Order, 
defendants will take certain steps to ensure (a) that these assets are 
preserved and that the Divestiture Assets are operated as competitively 
independent, economically viable and ongoing businesses; (b) that they 
will remain independent and uninfluenced by defendants or the 
consummation of the transaction; and (c) that competition is maintained 
during the pendency of the ordered divestiture.
    Plaintiff and defendants have stipulated that the proposed Final 
Judgement 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 preservation of Assets Stipulation and Order and the 
proposed Final Judgment from the date of signing of the Preservation of 
Assets Stipulation and Order, pending entry of the proposed Final 
Judgment by the Court and the required divestitures. Should the Court 
decline to enter the proposed Final Judgement, defendants have also 
committed to continue to abide by its requirements and those of the 
Preservation of Assets Stipulation and Order 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

    ALLTEL, with headquarters in Little Rock, Arkansas, is a 
corporation organized and existing under the laws of the state of 
Delaware. ALLTEL is the sixth-largest provider of mobile wireless voice 
and data services in the United States by number of subscribers; it 
serves approximately 8.8 million customers. It provides mobile wireless 
telecommunications services in one hundred fifty-one (151) rural 
service areas and in ninety-two (92) metropolitan statistical areas 
located within twenty-four (24) states and roaming services in these 
areas to other mobile wireless providers who use the CDMA platform. 
ALLTEL provides local wireline telephone service to 3 million customers 
primarily located in rural areas in fifteen (15) states. In 2004, 
ALLTEL earned revenues of approximately $8.2 billion.
    Western Wireless, with headquarters in Bellevue, Washington, is a 
corporation organized and existing under the laws of the state of 
Washington. Western is the ninth-largest provider of mobile wireless 
voice and data services in the United States by number of subscribers; 
it serves approximately 1.4 million customers. It operates in eighty-
eight (88) rural service areas and nineteen (19) metropolitan 
statistical areas located within nineteen (19) western states under the 
Cellular One service mark, except in one (1) license area in Texas 
where it operates as Western Wireless. Western Wireless also provides 
in its service areas roaming services to other providers who use CDMA, 
TDMA, and GSM technology. Through its subsidiary, Western Wireless 
International, it provides communications services in seven (7) 
countries outside of the United States. Western Wireless owns the 
Cellular One Group, a general partnership that owns the Cellular One 
service mark and licenses use of the mark to other mobile wireless 
providers. In 2004, Western Wireless earned approximately $1.9 billion 
in revenues.
    Pursuant to an Agreement and Plan of Merger dated January 9, 2005, 
ALLTEL will acquire Western Wireless in a stock-and-cash transaction 
valued at approximately $6 billion. If this transaction is consummated, 
ALLTEL and Western Wireless combined would have approximately 10 
million subscribers, with $10.1 billion in revenues and operations in 
thirty-three (33) states.
    The proposed transaction, as initially agreed to by defendants, 
would lessen competition substantially for mobile wireless 
telecommunications services in sixteen (16) markets. This acquisition 
is the subject of the Complaint and proposed Final Judgement filed by 
plaintiffs.

B. Mobile Wireless Telecommunications Services Industry

    Mobile wireless telecommunications services allow customers to make 
and receive telephone calls and use data services using radio 
transmissions without being confined to a small area

[[Page 44359]]

during the call or data session, and without the need for unobstructed 
line-of-sight to the radio tower. This mobility is highly prized by 
customers, as demonstrated by the more than 180 million people in the 
United States who own mobile wireless telephones. In 2004, revenues for 
the sale of mobile wireless telecommunications services in the United 
States were over $100 billion. To provide these services, mobile 
wireless telecommunications services providers must acquire adequate 
and appropriate spectrum, deploy an extensive network of switches, 
radio transmitters, and receivers, and interconnect this network with 
those of local and long-distance wireline telecommunications providers 
and other mobile wireless telecommunications services providers.
    The first wireless voice system were based on analog technology, 
now referred to as first-generation or ``IG'' technology. These analog 
systems were launched after the FCC issued the first licenses for 
mobile wireless telephone service: two cellular licenses (A-block and 
B-block) in each geographic area in the early to mid-1980s. The 
licenses are in the 800 MHz range of the radio spectrum, each license 
consists of 25 MHz of spectrum, and they are issued for each 
Metropolitan Statistical Area (``MSA''), and Rural Service Area 
(``RSA'') (collectively) ``Cellular Marketing Areas'' or ``CMAs''), 
with a total of 734 CMAs covering the entire United States. In 1982, 
one of the licenses was issued to the incumbent local exchange carrier 
in the market, and the other was issued by lottery to someone other 
than the incumbent. Cellular licenses must support analog service until 
February 2008.
    In 1995, the FCC allocated and subsequently issued licenses for 
additional spectrum for the provision of Personal Communications 
Services (``PCS''), a category of services that includes mobile 
wireless telecommunications services comparable to those offered by 
cellular licensees. These licenses are in the 1.8 GHz range of the 
radio spectrum and are divided into six blocks: A, B, and C, which 
consist of 30 MHz each; and D, E, and F, which consist of 10 MHz each. 
Geographically, the A and B-block 30 MHz licenses are issued by Major 
Trading Areas (``MTAs''), and C, D, E and F-block licenses are issued 
by Basic Trading Areas (``BTAs''), several of which comprise each MTA. 
MTAs and BTAs do not generally correspond to MSAs and RSAs. With the 
introduction of the PCS licenses, both cellular and PCS licensees began 
offering digital services, thereby increasing capacity, shrinking 
handsets, and extending battery life. In 1996, one provider, a 
specialized mobile radio (``SMR'' or ``dispatch'') spectrum licensee, 
began to use its SMR spectrum to offer mobile wireless 
telecommunications services comparable to those offered by other mobile 
wireless telecommunications services providers, in conjunction with its 
dispatch, or ``push-to-talk,'' service.
    Today, more than 90 percent of the all mobile wireless 
telecommunications services customers have digital service, and nearly 
all mobile wireless voice service has migrated to second-generation or 
``2G'' digital technologies: TDMA (time division multiple access), GSM 
(global standard for mobile, a type of TDMA standard used by all 
carriers in Europe), and CDMA (code division multiple access). Mobile 
wireless telecommunications services providers have chosen to build 
their networks on these incompatible technologies and most have chosen 
CDMA or GSM, with TDMA having been orphaned by equipment vendors. (The 
SMR providers use a fourth incompatible technological standard better 
suited to the spectrum they own, and, as SMR licensees, they have no 
obligation to support a specific technology standard.) Even more 
advanced technologies (``3G'') have begun to be deployed for voice and 
data. In all of the geographic areas alleged in the complaint, ALLTEL 
and Western Wireless own 25 MHz cellular licenses. Western also owns 
some additional PCS licenses. Cellular spectrum because of its 
propagation characteristics is more efficient to use in serving rural 
areas.

C. The Competitive Effects of the Transaction on Mobile Wireless 
Telecommunications Services

    ALLTEL's proposed acquisition of Western Wireless will 
substantially lessen competition in mobile wireless telecommunications 
services in the sixteen (16) relevant geographic areas. Mobile wireless 
telecommunications services include both voice and data services 
provided over a radio network and allow customers to maintain their 
telephone calls or data sessions without wires, such as when traveling. 
Fixed wireless services and other wireless services that have a limited 
range (e.g., Wi-Fi) do not offer a viable alternative to mobile 
wireless telecommunications services primarily because customers using 
these services cannot maintain a call or data session while moving from 
one location to another.
    Most customers use mobile wireless telecommunications services in 
close proximity to their workplaces and homes. Thus, customers 
purchasing mobile wireless telecommunications services choose among 
mobile wireless telecommunications services providers that offer 
services where they are located and travel on a regular basis: Home, 
work, other areas they commonly visit, and areas in between. The number 
and identity of mobile wireless telecommunications services providers 
varies from geographic area to geographic area, along with the quality 
of their services and the breadth of their geographic coverage, all of 
which are significant factors in customers' purchasing decisions. 
Mobile wireless telecommunications services providers can and do offer 
different promotions, discounts, calling plans, and equipment subsidies 
in different geographic areas, effectively varying the actual price for 
customers by geographic area.
    The relevant geographic markets for mobile wireless 
telecommunications services are, therefore, local in nature. The FCC 
has licensed a limited number of mobile wireless telecommunications 
services providers in these and other geographic areas based upon the 
availability of radio spectrum. These FCC spectrum licensing areas 
often represent the core of the business and social sphere where 
customers face the same competitive choices for mobile wireless 
telecommunications services. Although not all FCC spectrum licensing 
areas are relevant geographic areas for the purpose of analyzing the 
antitrust impact of this transaction, the FCC spectrum licensing areas 
that encompass the sixteen (16) geographic areas of concern in this 
transaction are where consumers in these communities principally use 
their mobile wireless telecommunications services. As described in the 
Complaint, the relevant geographic markets where the transaction will 
substantially lessen competition for mobile wireless telecommunications 
services are represented by the following FCC spectrum licensing areas 
which are all Rural Service Areas (``RSAs''): Arkansas RSA-11 (CMA 
334), Kansas RSA-3 (CMA 430), Kansas RSA-4 (CMA 431), Kansas RSA-8 (CMA 
435), Kansas RSA-9 (CMA 436), Kansas RSA-10 (CMA 437), Kansas RSA-14 
(CMA 441), Nebraska RSA-2 (CMA 534), Nebraska RSA-3 (CMA 535), Nebraska 
RSA-4 (CMA 536), Nebraska RSA-5 (CMA 537), Nebraska RSA-6 (CMA 538), 
Nebraska RSA-7 (CMA 539), Nebraska RSA-8 (CMA 540), Nebraska RSA-9 (CMA 
541), and Nebraska RSA-10 (CMA 542).
    The sixteen (16) geographic markets of concern for mobile wireless 
telecommunications services were identified by a fact-specific, market-
by-

[[Page 44360]]

market analysis that included consideration of, but was not limited to, 
the following factors: The number of mobile wireless telecommunications 
service providers and their competitive strength and weaknesses; 
ALLTEL's and Western Wireless' market shares along with those of the 
other providers; whether additional spectrum is or is likely to be 
available; whether any providers are limited by insufficient spectrum 
or other factors in their ability to add new customers; the 
concentration of the market, and the breadth and depth of coverage by 
different providers in each market; and the likelihood that any 
provider would expand its existing coverage.
    ALLTEL and Western Wireless both own businesses that offer mobile 
wireless telecommunications services in the sixteen (16) relevant 
geographic areas. The companies' combined market shares for mobile 
wireless telecommunications services in the relevant markets as 
measured in terms of subscribers range from over 50 to nearly 100 
percent. In each relevant geographic market, ALLTEL has the largest 
market share, and, in all but four RSAs, Western Wireless is the 
second-largest mobile wireless telecommunications services provider. In 
all of the relevant geographic markets, ALLTEL and Western Wireless own 
the only 800 MHz band cellular spectrum licenses which are more 
efficient in serving rural areas than 1900 MHz band PCS spectrum. As a 
result of holding the cellular spectrum licenses and being early 
entrants into these markets, ALLTEL's and Western Wireless' networks 
provide greater depth and breadth of coverage than their competitors, 
which are operating on PCS spectrum in the relevant geographic markets, 
and thus are more attractive to consumers.
    In addition, mobile wireless telecommunications services providers 
with partial coverage in a geographic area do not aggressively market 
their services in this location because potential customers would use 
their wireless telephones primarily in places where these providers 
have no network. In theory, these less built-out providers could 
service residents of these rural areas through roaming agreements, but 
as a practical matter when service is provided on another carrier's 
network, the providers would have to pay roaming charges to, and rely 
on, that carrier to maintain the quality of the network. Because of 
these constraints, the other providers who own partially built-out 
networks in the sixteen (16) geographic areas are reluctant to market 
their services to rural residents of these areas. Therefore, ALLTEL and 
Western Wireless are likely closer substitutes for each other than the 
other mobile wireless telecommunications services providers in the 
relevant geographic markets. Additionally, post-merger in these 
markets, there will be insufficient remaining competitors, with the 
type of coverage desired by customers, and the ability to compete 
effectively to defeat a small, but significant price increase by the 
merged firm.
    The relevant geographic markets for mobile wireless 
telecommunications services are highly concentrated. As measured by the 
Herfindahl-Hirschman Index (``HHI''), which is commonly employed in 
merger analysis and is defined and explained in Appendix A to the 
Complaint, concentration in these markets ranges from over 2100 to more 
than 8500, which is well above the 1800 threshold at which the 
Department considers a market to be highly concentrated. After ALLTEL's 
proposed acquisition of Western Wireless is consummated, the HHIs in 
the relevant geographic markets will range from over 3400 to almost 
9700, with increases in the HHI as a result of the merger ranging from 
over 1100 to over 4600.
    Competition between ALLTEL and Western Wireless in the relevant 
geographic markets has resulted in lower prices and higher quality in 
mobile wireless telecommunications services than would otherwise have 
existed in these geographic markets. If ALLTEL's proposed acquisition 
of Western Wireless is consummated, the competition between ALLTEL and 
Western Wireless in mobile wireless telecommunications service will be 
eliminated in these markets and the relevant geographic markets for 
mobile wireless telecommunications services will become substantially 
more concentrated. As a result, the loss of competition between ALLTEL 
and Western Wireless increases the likelihood of unilateral actions by 
the merged firm in the relevant geographic markets to increase prices, 
diminish the quality or quantity of services provided, and refrain from 
or delay making investments in network improvements.
    Entry by a new mobile wireless telecommunications services provider 
in the relevant geographic markets would be difficult, time-consuming, 
and expensive, requiring the acquisition of spectrum licenses and the 
build-out of a network. Expansion by providers who hold spectrum in 
these areas and are only partially built-out is also unlikely as the 
relevant geographic markets are rural service areas where the combined 
firm would own all of the available 800 MHz spectrum. Due to 
propagation characteristics of 800 MHz cellular spectrum and 1900 MHz 
PCS spectrum, the 800 MHz signals can cover a substantially broader 
area than the 1900 MHz signals. The estimated coverage advantage of the 
800 MHz spectrum in rural areas ranges from two to as much as five 
times greater than PCS. In rural markets, this difference results in 
higher build-out costs for PCs networks than for cellular networks. The 
high costs of constructing PCS networks in rural markets combined with 
the relatively low population density makes it less likely that 
carriers that own PCS spectrum would build out in the relevant 
geographic markets. Therefore, new entry in response to a small but 
significant price increase for mobile wireless telecommunications 
services by the merged firm in the relevant geographic markets would 
not be timely, likely, or sufficient to thwart the competitive harm 
that would result from ALLTEL's proposed acquisition of Western 
Wireless.
    For these reasons, plaintiff concluded that ALLTEL's proposed 
acquisition of Western Wireless will likely substantially lessen 
competition, in violation of Section 7 of the Clayton Act, in the 
provision of mobile wireless telecommunications services in the 
relevant geographic markets.

III. Explanation of the Proposed Final Judgment

    The divestiture requirements of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition of mobile 
wireless telecommunications services in the sixteen (16) geographic 
markets of concern. The proposed Final Judgment requires defendants, 
within one hundred twenty (120) days after the filing of the Complaint, 
or five (5) days after notice of the entry of the Final Judgment by the 
Court, whichever is later, to divest the Wireless Business Divestiture 
Assets and the Cellular One Group Assets. The Wireless Business 
Divestiture Assets are essentially Western's entire mobile wireless 
telecommunications services business in the sixteen (16) markets where 
ALLTEL and Western Wireless are each other's closest competitors for 
mobile wireless telecommunications services. These assets must be 
divested in such a way as to satisfy plaintiff in its sole discretion 
that they will be operated by the purchaser as a viable, ongoing, 
business that can compete effectively in the relevant market. 
Defendants must take all reasonable steps necessary to accomplish the 
divestitures quickly and shall cooperate with prospective purchasers.

[[Page 44361]]

    With respect to the Wireless Business Divestiture Assets, in some 
markets the merged firm may retain Western's PCS wireless spectrum. 
Western's PCS spectrum is used primarily to provide roaming services to 
other providers who use GSM technology. ALLTEL does not currently 
provide GSM roaming and therefore the proposed acquisition will not 
lessen competition in providing these services. In requiring 
divestitures, plaintiff seeks to make certain that the potential buyer 
acquires all the assets it may need to be a viable competitor and 
replace the competition lost by the merger. The 25 MHz of cellular 
spectrum that must be divested will support the operation and expansion 
of the mobile wireless telecommunications services businesses being 
divested, allowing the buyer to be a viable competitor to the merged 
entity.
    The Final Judgment requires that the Wireless Business Divestiture 
Assets in the Nebraska RSAs be divested to a single acquirer who, as a 
result, will be able to supply service to customers that require 
wireless telecommunications service throughout eastern and central 
rural Nebraska in the same way that Western Wireless is currently able 
to provide that service. This provision resolves concerns about the 
loss of competition for customers that demand coverage over a 
combination of Nebraska FCC licensing areas, in addition to the 
concerns due to eliminating competition within each licensing area.
    The Cellular One Group Assets consist of all right, title and 
interest in trademarks, trade names, service marks, service names, and 
designs for the Cellular One mark. Western Wireless owns the Cellular 
One Group Assets and under the terms of the Cellular One licensing 
agreements it has entered with other mobile wireless telecommunications 
services providers, it is required to promote and maintain the value of 
the mark. Western Wireless markets its mobile wireless 
telecommunications services under the Cellular One mark in the sixteen 
(16) geographic markets of concern in the Complaint. As a result of the 
proposed transaction, ALLTEL would have acquired the Cellular One Group 
Assets. ALLTEL has no need to use the Cellular One mark in the United 
States as it has its own established name. The buyer of the Wireless 
Business Divestiture Assets, on the other hand, may need to use the 
Cellular One Group name, short term or long term, in order to provide 
continuity for existing customers or attract new business.
    When agreeing to divestitures to remedy the loss of competition as 
a result of a merger, the plaintiff seeks to make certain that the 
potential buyer acquires or has accesses to all assets that it may need 
to be a viable and substantial competitor. Having an established name 
is an important asset that can impact the ability of the buyer to 
quickly come into a market and attract customers. In order to ensure 
that the buyer has unimpaired access to the Cellular One mark and that 
the mark is in the hands of an owner who will aggressively act to 
promote and preserve it, the proposed Final Judgment requires ALLTEL to 
divest the Cellular One Group Assets. Under the terms of the proposed 
Final Judgment, defendants will sell these assets to an appropriate 
purchaser who has the intent and capability to maintain the value of 
the Cellular One service mark.

A. Timing of Divestitures

    In antitrust cases involving mergers or joint ventures in which 
plaintiff seeks a divestiture remedy, it requires completion of the 
divestitures within the shortest time period reasonable under the 
circumstances. The proposed Final Judgment in this case requires, in 
Section IV.A, divestiture of the Divestiture Assets, within one hundred 
twenty (120) days after the filing of the Complaint, or five (5) days 
after notice of the entry of the Final Judgment by the Court, whichever 
is later. Plaintiff in its sole discretion may extend the date for 
divestiture of the Divestiture Assets by up to sixty (60) days. Because 
the FCC's approval is required for the transfer of the wireless 
licenses to a purchaser, Section IV.A provides that if applications for 
transfer of a wireless license have been filed with the FCC, but the 
FCC has not acted dispostively before the end of the required 
divestiture period, the period for divestiture of those assets shall be 
extended until five (5) days after the FCC has acted. This extension is 
to be applied only to the individual Divestitures Assets affected by 
the delay in approval of the license transfer and does not entitle 
defendants to delay the divestiture of any other Divestiture Assets for 
which license transfer approval has been granted.
    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. Even if 
all Divestiture Assets have not been divested upon consummation of the 
transaction, there should be no adverse impact on competition given the 
limited duration of the period of common ownership and the detailed 
requirements of the Preservation of Assets Stipulation and Order.

B. Use of a Management Trustee

    The Preservation of Assets Stipulation and Order, filed 
simultaneously with this Competitive Impact Statement, ensures that, 
prior to divestiture, the Divestiture Assets are maintained, the 
Wireless Business Divestiture Assets remain an ongoing business 
concern, and the Cellular One Group Divestiture Assets remain 
economically viable. The Divestiture Assets will remain preserved, 
indepdent and uninfluenced by defendants, so that competition is 
maintained during the pendency of the ordered divestiture.
    The Preservation Assets Stipulation and Order appoints a management 
trustee selected by plaintiff to oversee the Divestiture Assets in the 
relevant geographic markets. The appointment of a management trustee in 
this unique situation is required because the Wireless Business 
Divestiture Assets are not independent facilities that can be held 
separate and operated as standalone units by the merged firm. Rather, 
the Wireless Business Divestiture Assets are an integral part of a 
larger network, and to maintain their competitive viability and 
economic value, they should remain part of that network during the 
divestiture period. To insure that these assets are preserved and 
supported by defendants during this period, yet run independently, a 
management trustee is necessary to oversee the continuing relationship 
between defendants and these assets. The management trustee will also 
preserve and ensure the viability of the Cellular One Group Assets. The 
management trustee will have the power to operate the Divestiture 
Assets in the ordinary course of business, so that they will remain 
preserved, independent, and uninfluenced by defendants, and so that the 
Wireless Business Divestiture Assets remain an ongoing and economically 
viable competitor to defendants and to other mobile wireless 
telecommunications services providers. The management trustee will 
preserve the confidentiality of competitively sensitive marketing, 
pricing, and sales information; insure defendants' compliance with the 
Preservation of Assets Stipulation and Order and the proposed Final 
Judgment; and maximize the value of the Divestiture Assets so as to 
permit expeditious divestiture in a manner consistent with the proposed 
Final Judgment.
    The Preservation of Assets Stipulation and Order provides that 
defendants will

[[Page 44362]]

pay all costs and expenses of the management trustee, including the 
cost of consultants, accountants, attorneys, and other representatives 
and assistants hired by the management trustee as are reasonably 
necessary to carry out his or her duties and responsibilities. After 
his or her appointment becomes effective, the management trustee will 
file monthly reports with plaintiffs setting forth the efforts to 
accomplish the goals of the Preservation of Assets Stipulation and 
Order and the proposed Final Judgment and the extent to which 
defendants are fulfilling their responsibilities. Finally, the 
management trustee may become the divestiture trustee, pursuant to the 
provisions of Section V of the proposal Final Judgment.

C. 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 
plaintiff to effect the divestitures. As part of this divestiture, 
defendants must relinquish any direct or indirect financial ownership 
interests and any direct or indirect role in management or 
participation in control. Pursuant to Section V of the proposed Final 
Judgment, the divestiture trustee will own and control of Divestiture 
Assets until they are sold a final purchaser, subject to safeguards to 
prevent defendants from influencing their operation.
    Section V details the requirements for the establishment of the 
divestiture trust, the selection and compensation of the divestiture 
trustee, the responsibilities of the divestiture trustee in connection 
with the divestiture and operation of the Divestiture Assets, and the 
termination of the divestiture trust. The divestiture trustee will have 
the obligation and the sole responsibility, under Section V.D, for the 
divestiture of any transferred Divestiture Assets. The divestiture 
trustee has the authority to accomplished divestitures at the earliest 
possible time and ``at such price and on such terms as are then 
obtainable upon reasonable effort by the Divestiture Trustee.'' In 
addition, to insure that the divestiture trustee can promptly locate 
and divest to an acceptable purchaser, plaintiff, in its sole 
discretion, may require defendants to include additional assets, or 
allow defendants to substitute substantially similar assets, which 
substantially relate to the Divestiture Assets to be divested by the 
divestiture trustee.
    The divestiture trustee will not only have responsibility for sale 
of the Divestiture Assets, but will also be the authorized holder of 
the wireless licenses, with full responsibility for the operations, 
marketing, and sales of the wireless businesses to be divested, and 
will not be subject to any control or direction by defendants. 
Defendants will no longer have any role in the ownership, operation, or 
management of the Divestiture Assets following consummation of the 
transaction, as provided by Section V, other than the right to receive 
the proceeds of the sale, and certain obligations to provide support to 
the Divestiture Assets, and cooperate with the divestiture trustee in 
order to complete the divestiture, as indicated in Section V.L and in 
the Preservation of Assets Stipulation and Order.
    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.G 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 plaintiff setting forth his or her efforts to 
accomplish the divestitures. Section V.J requires the divestiture 
trustee to divest the Divestiture Assets to an acceptable purchaser or 
purchasers no later than six (6) months after the assets are 
transferred to the divestiture trustee. At the end of six (6) months, 
if all divestitures have not been accomplished, the trustee and 
plaintiff 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.
    The divestiture provisions of the proposed Final Judgment will 
eliminate the anticompetitive effects of the transaction in the 
provision of mobile wireless telecommunications services. The 
divestitures of the Divestiture Assets will preserve competition in 
mobile wireless telecommunications services by maintaining an 
independent and economically viable competitor in the relevant 
geographic markets.

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

    Plaintiff 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 plaintiff has not withdrawn its 
consent. The APPA 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 plaintiff 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 plaintiff 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

    Plaintiff considered, as an alternative to the proposed Final 
Judgment, a full trial on the merits against defendants. Plaintiff 
could have continued the litigation and sought preliminary and 
permanent injunctions against ALLTEL's acquisition of Western Wireless. 
Plaintiff is satisfied, however,

[[Page 44363]]

that the divestiture of assets and other relief described in the 
proposed Final Judgment will preserve competition for the provision of 
mobile wireless telecommunications services in the relevant markets 
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. 
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 violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 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. 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\ Rather:

    \1\ See United States v. Gillette Co., 204 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.

[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 Cas. (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 plaintiff United States in 
formulating the proposed Final Judgment.

    Dated: July 6, 2005.

     Respectfully submitted,

Deborah A. Roy (D.C. Bar 452573),
Laura R. Starling,
Hillary B. Burchuk (D.C. Bar 366755),
Matthew C. Hammond,

Attorneys, Telecommunications & Media Enforcement Section, Antitrust 
Division.

U.S. Department of Justice, City Center Building, 1401 H Street, 
NW., Suite 8000, Washington, DC 20530, (202) 514-5621, Facsimile: 
(202) 514-6381.

United States of America, Plaintiff, v. ALLTEL Corporation and 
Western Wireless Corporation, Defendants.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on July 6, 2005, plaintiff and defendants, ALLTEL Corporation 
(``ALLTEL'') and Western Wireless Corporation (``Western Wireless''), 
by their respective attorneys, have consented to the entry of this 
Final

[[Page 44364]]

Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any 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 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 plaintiff 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 is 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, 15 U.S.C. 18.

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest the Divestiture Assets.
    B. ``ALLTEL'' means defendant ALLTEL Corporation, a Delaware 
corporation with headquarters in Little Rock, Arkansas, its successors 
and assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``Cellular One Group'' means the Delaware general partnership, 
with headquarters in Bellevue, Washington, engaged in the business of 
licensing and promoting the Cellular One service mark and certain 
related trademarks, service marks, and designs.
    D. ``Cellular One Group Assets'' means all legal and economic 
interests Western Wireless holds in the Cellular One Group. Cellular 
One Group Assets shall include all right, title and interest in 
trademarks, trade names, service marks, service names, designs, and 
intellectual property, all license agreements for use of the Cellular 
One mark, technical information, computer software and related 
documentation, and all records relating to the divestiture assets. If 
the acquirer of the Cellular One Group Assets is not the acquirer of 
the Wireless Business Divestiture Assets, defendants will grant the 
acquirer of the wireless business assets a license to use the Cellular 
One service marks on terms generally available at the time the merger 
agreement was entered and make the transfer of the Cellular One Group 
Assets subject to continuation of these licenses.
    E. ``CMA'' means cellular market area which is used by the Federal 
Communications Commission (``FCC'') to define cellular license areas 
and which consists of Metropolitan Statistical Areas (``MSAs'') and 
Rural Service Areas (``RSAs'').
    F. ``Divestiture Assets'' means the Wireless Business Divestiture 
Assets and the Cellular One Group Assets.
    G. ``GSM'' means global system for mobile communications which is 
one of the standards used for the infrastructure of digital cellular 
service.
    H. ``Multi-line Business Customer'' means a corporate or business 
customer that contracts with Western Wireless for mobile wireless 
services to provide multiple telephones to its employees or members 
whose services are provided pursuant to a contract with the corporate 
or business customer.
    I. ``Transaction'' means the Agreement and Plan of Merger between 
ALLTEL and Western Wireless, dated January 9, 2005.
    J. ``Western Wireless'' means defendant Western Wireless 
Corporation, incorporated in the state of Washington with headquarters 
in Bellevue, Washington, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    K. ``Wireless Business Divestiture Assets'' means, for each mobile 
wireless telecommunications services business to be divested under this 
Final Judgment, all types of assets, tangible and intangible, used by 
defendants in the operation of the mobile wireless telecommunications 
services businesses to be divested. ``Wireless Business Divestiture 
Assets'' shall be construed broadly to accomplish the complete 
divestitures of the entire business of Western Wireless in each of the 
following RSA license areas as required by the Final Judgment and to 
ensure that the divested mobile wireless telecommunications services 
businesses remain viable, ongoing businesses:

(a) Arkansas RSA-11 (CMA 334);
(b) Kansas RSA-3 (CMA 430);
(c) Kansas RSA-4 (CMA 431);
(d) Kansas RSA-8 (CMA 435);
(e) Kansas RSA-9 (CMA 436);
(f) Kansas RSA-10 (CMA 437);
(g) Kansas RSA-14 (CMA 441);
(h) Nebraska RSA-2 (CMA 534);
(i) Nebraska RSA-3 (CMA 535);
(j) Nebraska RSA-4 (CMA 536);
(k) Nebraska RSA-5 (CMA 537);
(l) Nebraska RSA-6 (CMA 538);
(m) Nebraska RSA-7 (CMA 539);
(n) Nebraska RSA-8 (CMA 540);
(o) Nebraska RSA-9 (CMA 541); and
(p) Nebraska RSA-10 (CMA 542);

provided that ALLTEL may retain all of the PCS spectrum currently held 
by Western Wireless in each of these RSAs and provided that ALLTEL need 
not divest the assets used solely to operate Western Wireless' GSM 
roaming business, including GSM roaming contracts and equipment.

    Wireless Business Divestiture Assets shall include, without 
limitation, all types of real and personal property, monies and 
financial instruments, equipment, inventory, office furniture, fixed 
assets and furnishings, supplies and materials, contracts, agreements, 
leases, commitments, spectrum licenses issued by the FCC and all other 
licenses, permits and authorizations, operational support systems, cell 
sites, network infrastructure, switches, customer support and billing 
systems, interfaces with other service providers, business and customer 
records and information, customer contracts, customer lists, credit 
records, accounts, and historic and current business plans which relate 
primarily to the wireless business being divested, as well as any 
patents, licenses, sub-licenses, trade secrets, know-how, drawings, 
blueprints, designs, technical and quality specifications and 
protocols, quality assurance and control procedures, manuals and other 
technical information defendants supply to their own employees, 
customers, suppliers, agents, or licensees, and trademarks, trade names 
and service marks or other intellectual property, including all 
intellectual property rights under third-party licenses that are 
capable of being transferred to an Acquirer either in their entirety, 
for assets described in (1) below, or through a license obtained 
through or from Western Wireless, for assets described in (2) below; 
provided that defendants shall only be required to divert Multi-line 
Business Customer contracts, if the primary business address for that 
customer is located within any of the sixteen (16) license areas 
described herein, and further, any

[[Page 44365]]

subscribers who obtain mobile wireless telecommunications services 
through any such contract retained by defendants and who are located 
within the sixteen (16) geographic areas identified above, shall be 
given the option to terminate their relationship with defendants, 
without financial cost, within one year of the closing of the 
Transaction. Defendants shall provide written notice to these 
subscribers within forty-five (45) days after the closing of the 
Transaction of the option to terminate.
    These divestitures of the Wireless Business Divestiture Assets 
shall be accomplished by:
    (1) Transferring to the Acquirers the complete ownership and/or 
other rights to the assets (other than those assets used substantially 
in the operations of Western Wireless' overall wireless 
telecommunications services business which must be retained to continue 
the existing operations of the wireless properties that defendants are 
not required to divest, and that either are not capable of being 
divided between the divested wireless telecommunications services 
businesses and those not divested, or are assets that the defendants 
and the Acquirer(s) agree, subject to approval of plaintiff, shall not 
be divided); and
    (2) Granting to the Acquirer(s) an option to obtain a non-
exclusive, transferable license from defendants for a reasonable 
period, subject to approval of plaintiff, at the election of an 
Acquirer to use any of Western Wireless's retained assets under 
paragraph (1) above, used in the operation of the wireless 
telecommunications services business being divested, so as to enable 
the Acquirer to continue to operate the divested wireless 
telecommunications services business without impairment. Defendants 
shall identify in a schedule submitted to plaintiff and filed with the 
Court, as expeditiously as possible following the filing of the 
Complaint and in any event prior to any divestitures and before the 
approval by the Court of this Final Judgment, any intellectual property 
rights under third-party licenses that are used by the wireless 
telecommunications services businesses being divested but that 
defendants could not transfer to an Acquirer entirely or by license 
without third-party consent, and the specific reasons why such consent 
is necessary and how such consent would be contained for each asset.

III. Applicability

    A. This Final Judgment applies to defendants ALLTEL and Western 
Wireless, 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 purchaser 
agrees to be bound by the provisions of this Final Judgment, provided 
that defendants need not obtain such an agreement from the Acquirer(s).

IV. Divestitures

    A. Defendants are ordered and directed, within one hundred twenty 
(120) days after consummation of the Transaction, or five (5) days 
after notice of entry of this Final Judgment, whichever is later, to 
divest the Divestiture Assets to an acquirer or Acquirers acceptable to 
plaintiff in its sole discretion, and, if applicable, to a Divestiture 
Trustee designated pursuant to Section V of this Final Judgment. 
Plaintiff, 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. With respect to divestiture of 
the Wireless Business Divestiture Assets by defendants or the 
Divestiture Trustee, if applications have been filed with the FCC 
within the period permitted for divestiture seeking approval to assign 
or transfer licenses to the Acquirer(s) of the Wireless Business 
Divestiture Assets, but an order or other dispositive action by the FCC 
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 FCC approval has not 
been issued until five (5) days after such approval is received. 
Defendants agree to use their best efforts to accomplish the 
divestitures set forth in this Final Judgment and to seek all necessary 
regulatory approvals as expeditiously as possible. This Final Judgment 
does not limit the FCC;s exercise of its regulatory powers and process 
with respect to the Divestiture Assets. Authorization by the FCC 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 shall promptly make known, if they have not 
already done so, 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 Acquireres, 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 
plaintiff at the same time that such information is made available to 
any other person.
    C. Defendants shall provide to the Acquirer(s) and plaintiff 
information relating to the personnel involved in the operation, 
development, and sale or license of the Divestiture Assets to enable 
the Acquirer(s) to make offers of employment. Defendants will not 
interfere with any negotiations by the Acquirer(s) to employ any 
defendant employee whose primary responsibility is the operation, 
development, or sale or license of the Divestiture Assets.
    D. Defendants shall permit prospective Acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
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, and other documents and information customarily 
provided as part of a due diligence process.
    E. Defendants shall warrant to all Acquirer(s) that (1) the 
Wireless Business Divestiture Assets will be operational on the date of 
sale; (2) every wireless spectrum license is in full force and effect 
on the date of sale; and (3) the Cellular One Group Assets will be 
unencumbered and not judged invalid or unenforceable by any court or 
similar authority on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, licensing, operation, or divestiture of the Divestiture 
Assets.
    G. Defendants shall warrant to the Acquirer(s) of the Divestiture 
Assets that there are no defects in the environmental, zoning, 
licensing or other permits pertaining to the operation of each asset 
that will have a material adverse effect on the operator of the mobile 
wireless telecommunications services business in which the asset is 
primarily used, and that following the sale of the Divested Assets, 
defendant will not undertake, directly or indirectly, any

[[Page 44366]]

challenges to the environmental, zoning, licensing or other permits 
relating to the operation of the Divestiture Assets.
    H. Unless plaintiff otherwise consents in writing, the divestitures 
pursuant to Section IV, or by a Divestiture Trustee appointed pursuant 
to Seciton V of this Final Judgment, shall include the entire 
Divestiture Assets and with respect to the Wireless Business 
Divestiture Assets, shall be accomplished in such a way as to satisfy 
plaintiff, in its sole discretion, that these assets can and will be 
used by the acquirer(s) as part of a viable, ongoing business engaged 
in the provision of mobile wireless telecommunications services. With 
the exception of the Wireless Business Divestiture assets in the 
Nebraska RSAs, all of which must be divested to a single Acquirer, the 
divestiture of the Divestiture Assets may be made to one or more 
Acquirers, provided that in each instance it is demonstrated to the 
sole satisfaction of plaintiff that the Divestiture Assets will remain 
viable and the divestiture of such assets will remedy the competitive 
harm alleged in the Complaint. The divestitures of the Divestiture 
Assets, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) Shall be made to an Acquirer (or Acquirers) that, in 
plaintiff's sole judgment,
    (a) With respect to the Wireless Business Divestiture Assets, has 
the intent and capability (including the necessary managerial, 
operational, technical, and financial capability) of competing 
effectively in the provision of mobile wireless telecommunications 
services; and
    (b) With respect to the Cellular One Group Assets, has the intent 
and capability (including the necessary managerial, operational, 
technical, and financial capability) of maintaining and promoting the 
intellectual property including trademarks and service marks.
    (2) Shall be accomplished so as to satisfy plaintiff in its sole 
discretion, that none of the t